Alphadale Pty Ltd v Department of Environment and Heritage Protection [2016] QLC 38

LAND COURT OF QUEENSLAND CITATION: Alphadale Pty Ltd v Department of Environment and Heritage Protection [2016] QLC 38 PARTIES: Alphadale Pty Ltd (applicant) v Department of Environment and Heritage Protection (respondent) FILE NO: EPA163-16 DIVISION: General Division PROCEEDING: General Application DELIVERED ON: 29 June 2016 DELIVERED AT: Brisbane HEARD ON: 16 June 2016 HEARD AT: Brisbane MEMBER: WA Isdale ORDER: The general application filed on behalf of the applicant on 2 June 2016 is refused. CATCHWORDS: Jurisdiction and powers of the Land Court – appeal against review decision under the Environmental Protection Act 1994 – application for a stay of the review decision – where the decision was about the amount of financial assurance required for an environmental authority – whether s 522 and s 522A of the Environmental Protection Act 1994 applies – whether s 7A of the Land Court Act 2000 applies Acts Interpretation Act 1954, ss 14B, 35(1) Environmental Protection Act 1994, ss 521(5)(c), 522, 522A, 528 Environmental Protection (Chain of Responsibility) Amendment Act 2016 Land Court Act 2000, s 7A -- 1 of 9 -- 2 Adrenaline Pty Ltd v Bathurst Regional Council (2015) 322 ALR 180 Anthony Hordern and Sons v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Citigold Corporation Limited v Chief Executive, Department of Environment and Heritage Protection [2015] QLC 10 Cougar Energy Limited v Debbie Best, Chief Executive Under the Environmental Protection Act 1994 [2011] QPEC 150 Dwyer v National Companies and Securities Commission (1988) 15 NSWLR 285 Hope & Anor v Brisbane City Council [2013] QCA 198 Linc Energy Limited v Chief Executive, Department of Environment and Heritage Protection [2015] QLC 12 Mt Moss Mining Pty Ltd v Chief Executive, Department of Environment and Heritage Protection [2016] QLC 24 New South Wales Bar Association v Stevens (2003) 52 ATR 602 Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 R v Verrall [2013] 1 Qd R 587 Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669 APPEARANCES: Ms JM O’Connor instructed by Hopgood Ganim Lawyers for the appellant Mr JT Dillon for the respondent Background [1] On 20 May 2016, Alphadale Pty Ltd filed a notice of appeal to the Court seeking a review of a decision of the administering authority made on 22 April 2016. That decision, made under the Environmental Protection Act 1994 (the Act) was to confirm the original decision dated 23 March 2016 that the required amount of financial assurance for environmental authority EPML 00771413 is $4,345,852.42. [2] The amendments which brought the Act to its present form commenced on 27 April 2016. The amendments were added by the Environmental Protection (Chain of Responsibility) Amendment Act 2016, which, relevantly, added sub-section (5) to s 522 and added s 522A. [3] On 23 May 2016 the Court ordered, inter alia, that the appellant’s stay application be heard on 16 June 2016. The general application filed on 2 June 2016 is the stay application. It seeks an order that the decision made on 22 April 2016 be stayed until the determination of the appeal or further order, and for such further or other orders as may be appropriate. -- 2 of 9 -- 3 The applicant’s submissions [4] The applicant submits that the stay should be granted and that the current financial assurance in the amount of $175,536 remain in place. [5] Reference was made to the decision of Jones DCJ in Cougar Energy Limited v Debbie Best, Chief Executive Under the Environmental Protection Act 1994.1 In that case the Planning and Environment Court considered an application for a stay. It was submitted that His Honour’s comments would also apply in the present proceedings. At [20], His Honour said: “Notwithstanding that these proceedings involve an appeal against what is effectively an administrative decision, it is generally agreed that the general principles associated with the granting of a stay in usual civil litigation are applicable, subject to some variation or adjustment where necessary. By reference to cases such as Cook Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd (2008) Qd R 453; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; and Attorney for the State of Queensland v Farden (2011) QCA 111, the following principles seem to be established: (1) It is not necessary for the applicant for a stay to show special or exceptional circumstances which warrant the grant of a stay. (2) The fundamental justification for granting a stay pending an appeal is to ensure that the orders which might ultimately be made by the court are fully effective. (3) While the prospects of success on the appeal are a relevant consideration, unless it can be said that the appeal is frivolous or not arguable, the court will generally not descend into a detailed assessment of the prospects of the appeal. (4) Finally, will the applicant for the stay be irreparably prejudiced if the stay is not granted.” [6] It was pointed out that this Court has also applied those principles in stay applications.2 [7] The applicant submits that the Court should order a stay on the following grounds: “(a) there are special circumstances to warrant the grant of a stay; (b) should a stay not be granted, then any orders that the Court may ultimately make in the appeal may not be fully effective; (c) the respondent has not demonstrated any prejudice that it will suffer in respect of the applicant’s mine site should a stay not be granted; (d) the applicant has a well arguable case on appeal; and (e) the applicant will be irreparably prejudiced if the stay is not granted.” [8] The applicant points out that the respondent holds a financial assurance of $175,536 for this mine site and the proposed increase to $4,345,852.42 is an increase of more than 23 times the amount presently held. The current financial assurance was set in 1996 and mining operations at the site, known as the Big Rush, ceased in 1998. Since then, the 1 [2011] QPEC 150. 2 Citigold Corporation Limited v Chief Executive, Department of Environment and Heritage Protection [2015] QLC 10; Mt Moss Mining Pty Ltd v Chief Executive, Department of Environment and Heritage Protection [2016] QLC 24; Linc Energy Limited v Chief Executive, Department of Environment and Heritage Protection [2015] QLC 12. -- 3 of 9 -- 4 applicant submits that extensive rehabilitation works have been undertaken and that there is an ongoing monitoring program for the site. [9] The applicant relies on the affidavit of Adam Francis Norton sworn on 30 May 2016. Mr Norton, a mine manager, contends that the respondent is incorrect in calculations of the required financial assurance, as its rehabilitation strategy is inappropriate. If a stay is not granted, there is concern that the respondent may frustrate the appeal process by undertaking works, the appropriateness of which is in dispute. [10] It is submitted that in the two previous appeals in relation to this matter the Court has made orders for a stay and there is no material suggesting that the circumstances of the site have changed so as to justify a different approach on this occasion. [11] It is submitted that the applicant has an arguable case on appeal. The respondent concedes that this is so. [12] The applicant submits that it would suffer irreparable prejudice if the stay is not granted. In that regard, it relies on the affidavit of Julie-Ann Kelly sworn on 1 June 2016. Ms Kelly is the financial controller of the Curtin Group of companies, which includes the applicant. Ms Kelly deposes to the difficulties and costs associated with the prospect of obtaining a bank guarantee of approximately $4,000,000. The banks consulted, ANZ, Bank of Queensland and Westpac Banking Corporation, would require cash as a condition of a bank guarantee. In practice, this would necessitate a foreign currency loan with cash backing in the amount of 110% of the loan, plus a commitment fee of $45,873.47 and legal fees of about $19,500. Interest would be payable on the loan. The effect would be to remove $4,587,346.96 from the Curtin Group’s finances. The costs and fees would not be recoverable from the respondent if the appeal is successful. [13] If the Court orders a stay, it is submitted that it should be on condition that the existing financial assurance continue. [14] The applicant submitted that it was not in dispute that the “original decision” referred to in s 522(1) is an “original decision” within the meaning of s 519 of the Act and that it is a “dissatisfied person” as set out in s 520. The procedure for review is set out in s 521 and the applicant submits that ss 522 and 522A deal with the stay of operation of decisions but do not apply in the present case. [15] It is submitted that s 524 of the Act provides for an appeal to this Court and that s 7A of the Land Court Act 2000 has the effect of empowering the Court to order the stay being sought. -- 4 of 9 -- 5 [16] The applicant relied upon Dwyer v National Companies and Securities Commission3 where the inherent power of the New South Wales Supreme Court to stay a decision so as to prevent an injustice was considered. Reference was made to the decision of that Court in Veghelyi v Council of the Law Society of New South Wales4 where the same principle was applied. Reference was also made to New South Wales Bar Association v Stevens5 where Spigelman CJ, with whom Meagher and Sheller JJA agreed, considered the inherent jurisdiction of the New South Wales Supreme Court to protect the utility of proceedings brought in that Court and the resulting power to stay the effect of a decision. [17] The submissions for the applicant point out there is no material before the Court showing that there would be any prejudice to the respondent if the stay is granted. The applicant, on the other hand, would suffer irremediable harm if the stay is not granted, the harm being the costs associated with obtaining the necessary funds. [18] The provisions of ss 522 and 522A, it submits, do not apply in the present case but are limited to the review of the original decision. The decision now before the Court is the review decision.6 [19] Those provisions are in the following form: 522 Stay of operation of particular original decisions (1) If an application is made for review of an original decision mentioned in schedule 2, part 1 or 2, the applicant may immediately apply for a stay of the decision to— (a) for an original decision mentioned in schedule 2, part 1—the Land Court; or (b) for an original decision mentioned in schedule 2, part 2—the Court. (2) The Land Court or the Court may stay the decision to secure the effectiveness of the review and any later appeal to the Land Court or the Court. (3) A stay may be given on conditions the Land Court or the Court considers appropriate and has effect for the period stated by the Land Court or the Court. (4) The period of a stay must not extend past the time when the administering authority reviews the decision and any later period the Land Court or the Court allows the applicant to enable the applicant to appeal against the review decision. (5) This section applies subject to sections 522A and 522B. 3 (1988) 15 NSWLR 285, 287. 4 (1989) 17 NSWLR 669, 676. 5 (2003) 52 ATR 602 at [83] to [86]. 6 Environmental Protection Act 1994, s 521(5)(c). -- 5 of 9 -- 6 522A Stay of decision about financial assurance (1) This section applies to an application under section 522 for a stay of a decision about the amount of financial assurance required under a condition of an environmental authority. (2) The decision may not be stayed unless the administering authority has been given security for at least 75% of the amount of financial assurance that was decided by the administering authority. [20] These sections are in Division 2 of Chapter 11 of the Act. The division is headed “Internal review of decisions”. Section 35(1) of the Acts Interpretation Act 1954 provides that: 35C Headings part of provision etc. (1) The heading to a chapter, part, division, subdivision, section, subsection, schedule or another provision of an Act forms part of the provision to which it is a heading. [21] Appeals to the Land Court are provided for in Subdivision 1 of Division 3 of the Act. The respondent’s submissions [22] The respondent provided the affidavit of Anne-Maree Kate Ireland which was affirmed on 10 June 2016. This provides the history of the matter and focuses on the importance of holding adequate financial assurance. [23] The respondent submits that as the Act was in its present form when the appeal was filed, the stay sought may only be granted after s 522A(2) has been satisfied, which has not yet occurred. Unless the provision is complied with, it is submitted, the Court has no power to grant the stay. It also submits that if the Court finds it has power, it should exercise it by requiring the giving of security in like terms to that required by s 522A(2) or a significant amount. [24] It is submitted that the specific provisions of s 522 show a legislative intent to exclude any more general powers to grant a stay7 which might exist pursuant to the Land Court Act 2000. [25] The respondent submits that a plain reading of the provisions now included in the Act leads to the interpretation for which it contends. The explanatory notes to the 2016 amendments are referred to in support of that conclusion. The respondent’s detailed submissions in relation to the exercise of a power to grant a stay may await detailed consideration in the event that the Court is satisfied that it has such a power. 7 Anthony Hordern and Sons v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, 7 per Gavan Duffy CJ and Dixon J; Hope & Anor v Brisbane City Council [2013] QCA 198, [15] – [18]; Adrenaline Pty Ltd v Bathurst Regional Council (2015) 322 ALR 180, [50] – [53]; R v Verrall [2013] 1 Qd R 587, [10], [13] – [14]. -- 6 of 9 -- 7 Interpreting the legislation [26] As submitted by the respondent, the meaning of the provision must be interpreted by reference to the language of the statute as a whole.8 In Project Blue Sky Inc & Ors v Australian Broadcasting Authority, McHugh, Gunnow, Kirby and Hayne JJ said, at [60] – [71]: “The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".” [27] The key point for decision is whether the power conferred by s 522 of the Act remains available at the present stage of proceedings. [28] This may usefully be considered before the question of whether the Court may grant the stay sought because of s 7A of the Land Court Act 2000, as submitted by the applicant. That provision, which gives this Court the powers of the Supreme Court, is qualified by the opening words of sub-section (1), which state that the powers are: “for exercising jurisdiction conferred under this Act or another Act” Additionally, by sub-section (5) of s 7A, sub-section (1) has effect subject to, in this case, the Act. 8 Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 [69] – [71]. There is nothing new in this. In Lincoln College’s case 1595 3 Co Rep 58b, 76 ER 764, 767 Lord Coke said “for no one can rightly understand any part without perusing the whole again and again”. -- 7 of 9 -- 8 [29] The Court’s power, for present purposes, is indicated by the words in s 522(2) where it is provided that the Court may grant a stay “to secure the effectiveness of the review”, that is the internal review, “and any later appeal to the Land Court”. The plain reading of these words allows their meaning to be determined. There is no ambiguity or obscurity such that recourse might need to be had to extrinsic material beyond the Act to determine the meaning, nor will the ordinary meaning lead to a result that would be manifestly absurd or unreasonable. There is no need to seek confirmation in extrinsic material of what is clear in the statute.9 The words “and any later appeal to the Land Court” make it clear that the Court may stay the decision to secure the effectiveness of the internal review and also to secure the effectiveness of any later appeal. The words do not restrict when this may be done to a time period before an appeal has been commenced. Giving the words their ordinary and natural meaning in their context, the Court may grant a stay at any time after the time stated in s 522(1), that is once there is an application to review an original decision. Although appeals are dealt with in the next Division of the Act, this does not present an inconsistency as the provisions, such as the Court’s powers for appeals, which appear in s 528, do not conflict with the exercise of the power to grant a stay which may be exercised even before an appeal is commenced but is not restricted to that period. The words “and any later period the Land Court … allows the applicant to enable the applicant to appeal against the review decision” in s 522(4) support this construction as it is plain that a stay may be extended to accommodate the determination of the appeal. [30] In view of the Court’s finding that the legislative grant of power to order a stay commences at the time specified in s 522(1) of the Act and continues, under the authority of s 522, so long as necessary to secure the effectiveness of an appeal, it is unnecessary to consider any other possible source of such a power. [31] It follows that s 522A applies. Section 522A(2) operates because of s 522(5). The result is that the decision may not be stayed unless the administering authority has been given security for at least 75% of the amount of financial assurance that was decided by the administering authority. [32] The Court has no power to grant the stay sought until the requirement in s 522A(2) of the Act has been met. It is therefore presently unnecessary to consider the terms upon which a stay ought to be granted. 9 Acts Interpretation Act 1954, s 14B. -- 8 of 9 -- 9 [33] The general application filed on behalf of the applicant on 2 June 2016 must be refused. Order The general application filed on behalf of the applicant on 2 June 2016 is refused. WA ISDALE MEMBER OF THE LAND COURT -- 9 of 9 --