Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor [2019] QLC 18

LAND COURT OF QUEENSLAND CITATION: Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor [2019] QLC 18 PARTIES: Cement Australia (Exploration) Pty Ltd ABN 95 009 800 355 (applicant) Cement Australia (Queensland) Pty Ltd ABN 70 009 658 520 (applicant) v East End Mine Action Group Inc (active objector) Jim Elliott, Maurice Elliott, Frank Lenz, Anne Patricia Kelly, Robert Geaney, Ross Rideout, Paula Rideout Theresa May Derrington, Tom Chapman, Lynne Chapman, Philip Mann, Claire Mann, Brent Lashford, Gladstone Regional Council (non-active objectors) and Chief Executive, Department of Environment and Science (statutory party) FILE NOs: EPA242-18 & MRA241-18 DIVISION: General Division PROCEEDING: Objections to application for environmental authority and mining lease DELIVERED ON: 27 March 2019 DELIVERED AT: Brisbane HEARD ON: Submissions closed 25 March 2019 HEARD AT: Heard on the papers PRESIDENT: FY Kingham -- 1 of 4 -- 2 ORDER: I direct the parties to provide the relevant experts with the signed list of issues for their consideration in their meeting of experts and joint expert report. CATCHWORDS: CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURE – whether to allow amendments to an agreed list of issues for expert witnesses – where the list was developed in consultation with the parties and the relevant experts during a Court Managed Expert Evidence (CMEE) process – where the respondent agreed to and signed the list but subsequently sought to amend it – where the request was refused Wagner & Ors v Harbour Radio Pty Ltd & Ors [2017] QSC 177, followed APPEARANCES: B Job QC and J O’Connor of Counsel for the applicants A Lucke, as agent for the active objector Background [1] Cement Australia operates the East End limestone mine near Gladstone. It wants to extend the mine and has applied for a mining lease and to amend its environmental authority for that purpose. The Court must make a recommendation on those applications, after hearing any objections to them. Although there were more than a dozen objections, only one objector, the East End Mining Action Group, has elected to take an active role in the hearing. [2] Both Cement Australia and EEMAG will call evidence from expert witnesses about the impact of the proposed mine extension. Cement Australia has nominated four experts and EEMAG one to address the following issues: 1. geological features relevant to the proposed expansion; 2. groundwater impacts of the proposed expansion; 3. surface water impacts of the proposed expansion; and 4. groundwater to surface water impacts of the proposed expansion. [3] EEMAG has nominated two other experts on different topics, but they are not involved in the question I have to resolve in this decision. The matter is subject to the Court’s CMEE process to ensure the expert evidence complies with the Court’s requirements for expert evidence and that it is prepared in a timely and efficient way. -- 2 of 4 -- 3 [4] After a number of case management conferences chaired by the CMEE Convenor, the parties agreed on a list of issues for the expert witnesses to address. EEMAG’S lay representative, Mr Lucke, suggested further changes to the list after he had signed it. Cement Australia opposed any change to the agreed list. Consistent with its limited role in an objections hearing, the Department of Environment and Science expressed no view on the matter. Because the Convenor can only act on the agreed position of the parties, I must decide whether the list of issues should be amended as Mr Lucke requests. [5] Routinely, the Court directs the parties to provide a single brief to the experts. The Court’s objective is to ensure the experts are briefed with the same material and that, in their joint report, they address any issues a party considers arise in the case. This avoids the experts’ opinions passing like ships in the night. It identifies in a cost- effective and timely way what they agree and disagree about and why. [6] In some cases, there is a good reason to require the parties to settle an agreed list of issues. That is particularly important for an objections hearing because there is no system of pleadings to define the issues for the hearing. [7] I agree with, and respectfully adopt, the observations recently made by Applegarth J about the benefits of an agreed list of issues: “[22] Having the parties agree, if possible, on the issues to which expert opinion is to be directed also seeks to avoid problems which may arise at trial if an expert has been asked to address a false issue or non-issue, sometimes at great cost, with the result that substantial parts of an expert report are unnecessary or ruled inadmissible.”1 [8] The list of issues signed by the parties was developed collaboratively by the parties and their expert witnesses during case management conferences chaired by the CMEE Convenor. The purpose was to ensure the experts addressed the issues raised by the application and EEMAG’s objection. [9] Mr Lucke said the list of issues was prepared on a tight time frame and, upon reflection, he thinks they are better formulated by his proposed amendments.2 However, it not clear why he considers his proposed changes better reflect the issues raised by the application and EEMAG’s objection. 1 Wagner & Ors v Harbour Radio Pty Ltd & Ors [2017] QSC 177, [22]. 2 EEMAG’s Submissions filed 14 March 2019. -- 3 of 4 -- 4 [10] Mr Lucke has deleted some questions from the list, without explaining why. Further, he has reframed some open-ended questions about an important matter, which would confine the experts to assumptions not accepted by all parties. [11] For example, Mr Lucke has reframed the question “What is the geology of this aquifer?” to, effectively, “Is this aquifer paleokarst or karst type 2?”.3 [12] The nature and qualities of the aquifer will be important in assessing the groundwater impacts of the proposed extension. The open-ended question is preferable because it does not direct the experts or seek to constrain their consideration of the geology of the aquifer. Given the importance of the issue, I am reluctant to change a formulation agreed with input from the experts. [13] Although the agreed list of issues will brief the experts for their meeting and report, it will not prevent Mr Lucke from asking relevant questions of the experts during the hearing. [14] I am not persuaded the signed list of issues should be amended as requested by Mr Lucke. Order I direct the parties to provide the relevant experts with the signed list of issues for their consideration in their meeting of experts and joint expert report. FY KINGHAM PRESIDENT OF THE LAND COURT 3 Applicants’ Submissions filed 15 March 2019, [20]. -- 4 of 4 --