Wilpinjong Coal Pty Limited v Mid-Western Regional Council; Ulan Coal Mines Limited v Mid-Western Regional Council

Judgment 1Two mining companies who own significant land holdings in the Mudgee area have filed notices of motion seeking leave under r 6.18 of the Uniform Civil Procedure Rules 2005 for all of the appeals the companies wish to bring to the Land and Environment Court under s 526 of the Local Government Act 1993 to be dealt with in the same originating processes. 2The appeals the two mining companies wish to bring under s 526 are appeals against declarations that a council, being the Mid-Western Regional Council ('the Council'), has made under s 525 of the Local Government Act. The declarations the Council has made under s 525 are declarations that the parcels of rateable land owned by the two companies should be categorised as 'mining coal'. The parcels of rateable land had formerly been categorised variously as farmland, residential or business. However, the Council re-categorised the parcels to all be 'mining coal'. The mining companies, by separate applications in respect of the separate parcels of rateable land, applied under s 525 for the rateable land to be recategorised back to the original categories of farmland, residential or business rather than the new category of 'mining coal'. 3The Council rejected those applications and thereby affirmed the new category of 'mining coal' for each of the parcels of rateable land. Those declarations rejecting the applications of the mining companies are the subject of the proposed appeals by the mining companies to the Land and Environment Court. 4The number of appeals are considerable. In the case of one of the mining companies, Ulan Coal Mines Limited, there are 20 declarations and hence there would be 20 appeals under s 526 of the Local Government Act. In the case of the other mining company, Wilpinjong Coal Pty Limited, there are 100 declarations and hence there would be 100 appeals under s 526. 5The mining companies by their respective notices of motion seek for the 20 appeals in one case and the 100 appeals in the other case to be dealt with in two separate originating processes which, for an appeal under s 526 of the Local Government Act, is an application Class 3. In order for that to occur r 6.18 of the Uniform Civil Procedures Rules must entitle the mining companies to claim relief against the Council in respect of each of those appeals in the one application. Rule 6.18(1)(a)-(c) enable a plaintiff to do so as of right without seeking the leave of the Court if the circumstances in those paragraphs are satisfied. Paragraph (d) also gives the Court the power to grant leave for causes of action to be dealt with in the same proceedings in circumstances other than those in paras (a)-(c). 6The mining companies sought to rely on the circumstances in paras (a) and (d) of r 6.18(1). In relation to para (a), there is a difficulty in that the circumstance requires that the defendant be 'liable' to the plaintiff in respect of each cause of action. In the case of an appeal under s 526 of the Local Government Act, the council that makes the declaration under s 525 is not liable to anyone. The council makes an administrative decision to declare the land to be within a category and to accept or reject an application made by a rateable person for a change of category. The making of that decision, however, does not create any liability to the rateable person. Hence, the circumstances in para (a) of r 6.18(1) do not apply. 7I therefore come to para (d), the power of the Court to grant leave. The problem at the outset is as to whether an appeal under s 526 of the Local Government Act is a 'cause of action'. If it is not then r 6.18 does not apply and hence the Court cannot grant leave. 8An appeal under 526 is an appeal against an administrative decision, being the declaration of the relevant council under s 525 of the Local Government Act. The nature of the appeal is what is termed a merits review of the council's declaration. The court hearing the appeal has all of the functions of the council whose decision is the subject of the appeal and undertakes a re-hearing of the matter. The evidence on the appeal may be different to the evidence that was before the council when it made its original determination under s 525. The role of the court in determining such an appeal is to determine what is the correct or preferable decision based on the facts and law that apply at the time of determining the appeal. Such an appeal does not involve a claim by a plaintiff that any right of the plaintiff has been infringed by the defendant. The mining companies, being the rateable persons who made the application under s 525 of the Local Government Act for a change in the category of the rateable land, have no substantive right, including that their nominated category be upheld as the appropriate category. As I have said, there is no liability on the Council either. 9The concept of a cause of action is different to the procedural right that a rateable person has to appeal to the Land and Environment Court under s 526 of the Local Government Act. Justice Brennan in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 610-611 discusses the imprecise meanings of the term 'cause of action'. Although various, they have at their heart a right which is infringed and the bringing of the proceedings is to uphold that right and remedy the infringement. However, as I have said, an appeal under s 526 does not involve the upholding of any independent right or a claim that a right has been infringed and seeking a remedy for that infringement. The only right is a procedural right and that is to lodge an appeal against the declaration under s 525 and ask for the Court to determine the correct category on the merits review appeal. 10For these reasons, I am of the view that r 6.18 does not apply to appeals under s 526 of the Local Government Act and hence the Court does not have the power to grant leave for the various appeals which the two mining companies wish to bring under s 526 to be dealt with in the same originating process. There being no other power which would allow the Court to grant leave for the mining companies to join multiple appeals in the one originating process, it will be necessary for the mining companies to bring separate appeals in respect of each declaration with which they are dissatisfied under s 526 of the Local Government Act. 11In relation to the filing fees, the mining companies requested that there be some waiver of the requirement to pay filing fees for each of the appeals that would need to be lodged, as the total of all of the filing fees may involve a considerable sum. The levying of filing fees and the waiving of them involve the exercise of an administrative function, not a judicial function. There is capacity for any applicant to apply to the Registrar for dispensation in whole or part from payment of filing fees. That is a discretionary matter for the Registrar to determine, as I have said, as an administrative function. If the applicant chooses to make that application for fee waiver then it should show cause as to why in the circumstances of the case there should be a dispensation in whole or part in respect of payment of the filing fees. 12Clearly, these will be appeals where, in order to ensure the overriding objective of the Civil Procedure Act 2005 and Uniform Civil Procedure Rules that there be the just, quick and cheap resolution of all the issues in the appeals, there should be active case management. It may well be possible for the proceedings to be heard together, for evidence in one to be evidence in another, and for there to be common statements of facts and contentions or statements of agreed facts or even submissions by the parties. These are matters that should be determined through case management processes. It would seem desirable that when the originating processes of the appeals are filed in the Registry, they be given a return date which is common and that they be returnable before a Judge or Commissioner who could appropriately case manage the appeals from the outset. 13The parties so far have commendably discussed the prospective appeals and have indicated their willingness to continue to discuss and come up with appropriate directions for case managing these proceedings. That clearly would be desirable and if it could be done prior to the first return date then appropriate agreed directions can be made on the first return date for the case management of the proceedings. 14In relation to costs, the applications by the two mining companies were proper, they were designed to try and achieve the just, quick and cheap resolution of the matters. I have determined, for the reasons that I have given, that r 6.18 is not available for the Court to grant leave, as requested by the two mining companies, for the appeals to be dealt with in the same originating process. Nevertheless, the mining companies' application was proper and had prospects of success. I consider that the appropriate order is that each party pay their own costs of the notices of motion. 15The Court orders: (1)The notices of motion filed are dismissed. (2)Each party pay their own costs of the notices of motion.