Court decision

High Court sends New Acland Project back to the Land Court

By Damian Roe and Elizabeth Harvey / 04 February 2021
6 min.

Yesterday, the High Court of Australia handed down its decision in the long running New Acland saga. Despite the Queensland Court of Appeal finding that the decision of Member Smith of the Land Court of Queensland, to recommend that the mining lease application and environmental authority be rejected, was infected by apprehended bias, New Acland Coal Pty Ltd (NAC) will now have to incur the  expense of a retrial of the Land Court hearing that, in the first instance extended over 100 days.

Whilst it may seem a perverse outcome that the party that was the victim of apprehended bias is put to the expense of having a matter reheard, the High Court’s decision reinforces the commonly understood principle that any decision infected by apprehended bias is a nullity.  It is a timely reminder that any party looking to assert that a judicial officer or a decision maker is biased, needs to be cognisant of the likely consequences if that allegation is upheld.

A long and tortured history

Land Court objections hearing 

NAC operates an open cut coal mine near Oakey on the Darling Downs in Queensland.  NAC applied for a mining lease and associated environmental authority to expand its existing operations.  Numerous objections were lodged to those applications including an objection by the Oakey Coal Action Alliance Inc (OCAA).

In accordance with the statutory process, the applications were referred to the Land Court for an objections hearing before Member Smith.  After a hearing in excess of 100 sitting days, Member Smith recommended that the applications be refused.

Judicial review

NAC applied for a judicial review of Member Smith’s decision alleging a number of errors at law and also alleging apprehended bias on the part of Member Smith.  NAC’s judicial review was partially successful in that Justice Bowskill, of the Supreme Court of Queensland, found that Member Smith had made the errors of law asserted but also decided that the recommendations to refuse the applications were not affected by any apprehended bias on the part of Member Smith.  Her Honour referred the matter back to the Land Court for a rehearing on the discrete issues that were affected by the errors of law but also ordered that the parties were bound by the findings of Member Smith on all other issues not affected by the errors of law.

Land Court — discrete rehearing 

The Land Court conducted the rehearing and made a recommendation, subject to conditions, that the applications be granted.

Court of Appeal

OCAA appealed the Supreme Court of Queensland decision that Member Smith’s recommendation contained errors of law.  NAC filed a cross appeal challenging the finding of Justice Bowskill that the recommendations were not affected by apprehended bias.  The cross appeal was framed as a conditional cross appeal, so that NAC would only rely on it if the appeal by OCAA was successful.  The Queensland Court of Appeal required that the cross appeal was not conditional and NAC subsequently removed the conditionality of the cross appeal and proceeded with it.

The Court of Appeal took a more adverse view of the behaviour of Member Smith during the Land Court hearing than Justice Bowskill and concluded that the recommendations made by Member Smith were affected by apprehended bias.  The Court of Appeal also concluded that Justice Bowskill had been correct to hold that the recommendations made by Member Smith were affected by errors of law.  As a result, OCAA’s appeal was dismissed and NAC’s cross appeal was allowed.  Initially the Court of Appeal indicated that it was minded to order that the matter return to the Land Court for a rehearing.  However, after further submissions from the parties, the Court of Appeal made consequential orders limited to a declaration that, in making his recommendations, Member Smith had failed to observe procedural fairness.

Appeal to the High Court

OCAA applied for and was granted special leave to appeal to the High Court of Australia.  

The High Court’s decision in the matter was handed down yesterday.  The High Court unanimously allowed the appeal and set aside the orders of the Court of Appeal and ordered that:

  1. the orders of Justice Bowskill, in relation to the rehearing of the matter, be set aside; and
  2. NAC’s applications be referred back to the Land Court of Queensland to be reconsidered according to law.

Critical to the High Court’s decision was its rejection of NAC’s argument that all that was required for the relevant Ministers to make a decision in relation to the mining lease and environmental authority applications was the existence of recommendation of the Land Court in fact, and the fact that the recommendation was infected by apprehended bias was irrelevant.  

The High Court disagreed.  The High Court stated:

“… is apparent that the recommendation of the Land Court mandated by Ch 6 of the MRA as a precondition to the making of a decision by the Minister to grant or reject an application for a mining lease in the event of an objection is a recommendation which is the product of compliance with all of the express and implied conditions of the statutory process by which the recommendation is required to be produced.  Central to those implied conditions of that statutory process by which the recommendation is required to be produced is that the Land Court observe procedural fairness in conducting the hearing and in making recommendations.”

“New Acland’s argument that a recommendation in fact is all that need exist to meet the statutory precondition to the making by the Minister of a decision to grant or reject an application for a mining lease is therefore denied both by the structure of Ch 6 and by the purpose of the MRA.”

Implications of the decision

The result of the High Court’s decision is that NAC will be required to return to the Land Court and have the current objections to its applications reheard.  Given the High Court’s decision in relation to the finding of apprehended bias, it is likely that all the evidence taken from the previous Land Court hearing will not be able to be used in the rehearing.  Whilst there will not be an opportunity for new objections to be made, NAC will be required to submit new evidence to support the grant of the mining lease and the environmental authority. Existing objectors, including OCAA, will be entitled to submit new evidence in support of their existing objections in accordance with the process under the Mineral Resources Act 1989 and the Environmental Protection Act 1994.

As a result, NAC is likely to incur significant further expense if it wishes to proceed with the New Acland expansion.

For further information and discussion, please contact our Resources and Energy team.

Damian Roe
Damian is a Partner of our leading Resources, Energy and Projects practice.
Elizabeth Harvey
Senior Associate
Elizabeth is a Senior Associate in our Resources and Energy practice.

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