Alphadale Pty Ltd v Chief Executive, Department of Environment and Heritage Protection [2016] QLAC 6 (2016) 37 QLCR 229

LAND APPEAL COURT OF QUEENSLAND CITATION: Alphadale Pty Ltd v Chief Executive, Department of Environment and Heritage Protection [2016] QLAC 6 PARTIES: ALPHADALE PTY LTD (appellant) v CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION (respondent) FILE NO/S: LAC No 002-16 Land Court No. EPA163-16 DIVISION Land Appeal Court of Queensland PROCEEDING: Appeal from the Land Court of Queensland ORIGINATING COURT: Land Court at Brisbane – [2016] QLC 38 DELIVERED ON: 23 September 2016 DELIVERED AT: Brisbane HEARING DATE: 23 August 2016 THE COURT: Dalton J F Y Kingham, President of the Land Court W L Cochrane, Member of the Land Court ORDER: 1. Appeal allowed. 2. The review decision of the respondent dated 22 April 2016 is stayed until the disposition of the appeal begun on 20 May 2016 in this Court, or further prior order. CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – DRAFTING ERROR OR OMISSION APPARENT IN STATUTE – where the appellant applied to the Land Court for a stay pending appeal from a review decision made by the respondent – where the Land Court refused the stay on the basis that, by reason of s 522A(2) of the Environmental Protection Act 1994 (Qld), it had no power to grant a stay – where the appellant contends that the Land Court’s power to stay a review decision pending appeal is conferred not by s 522 of the Environmental Protection Act 1994 (Qld), but by s 7A of the Land Court Act 2000 (Qld) – where parts of the relevant statutory provisions contain drafting errors – whether the Land Court’s power to stay a -- 1 of 19 -- 2 review decision pending appeal is conferred by s 522 of the Environmental Protection Act 1994 (Qld) APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – STAY PENDING APPEAL – where the appellant was required by a review decision to pay $4,345,852 by way of financial assurance as a condition of an environmental authority - where the appellant applies for a stay pending appeal from the review decision – where the respondent concedes on appeal that the appeal was not unmeritorious - where the appellant claims it would suffer consequential losses which would be irrecoverable if it were successful on appeal – whether the Court should exercise its discretion and order a stay pending appeal from the review decision Acts Interpretation Act 1954 (Qld), s 14B Environmental Protection Act 1994 (Qld), s 521, s 522, s 522A, s 522B, s 523, s 524, s 527, s 528, s 530, s 531, s 535, s 535B, s 535C Land Court Act 2000 (Qld), s 7A Alexander & Ors v Cambridge Credit Corporation Ltd (receivers appointed) & Anor (1985) 2 NSWLR 685, cited Berry v Green [1999] QCA 213, cited Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, cited Minister for Resources v Dover Fisheries Ltd (1993) 43 FCR 565, cited Cook’s Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] QCA 322, cited Director of Public Prosecutions (Vic) v Leys (2012) 296 ALR 96, cited Dwyer v National Companies and Securities Commission (1988) 15 NSWLR 285, cited Forster v Jododex Australia Pty Ltd & Anor (1972) 127 CLR 421, cited Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, cited R v Young (1999) 46 NSWLR 681, cited Sevmere Pty Ltd v Cairns Regional Council & Anor [2009] QCA 232, cited Taylor v The Owners – Strata Plan No 11564 & Ors (2014) 253 CLR 531, cited Wentworth Securities Ltd v Jones [1980] AC 74, cited Western Bank Ltd v Schindler [1977] Ch 1, cited COUNSEL: J M O’Connor for the appellant J T Dillon for the respondent -- 2 of 19 -- 3 SOLICITORS: HopgoodGanim Lawyers for the appellant Litigation Unit - Department of Environment and Heritage Protection for the respondent [1] THE COURT: The appellant applied to the Land Court for a stay pending appeal, which it had begun in that Court, from a review decision made by the respondent pursuant to s 521(5) of the Environmental Protection Act 1994 (Qld) (the Act). By the review decision the appellant was required to pay $4,345,852 by way of financial assurance as a condition of an environmental authority. The Land Court refused the stay on the basis that, by reason of s 522A(2), it had no power to grant a stay because the appellant had not given security for 75 per cent of the financial assurance which the respondent had determined should be paid. [2] The appellant contended that, as a matter of statutory construction, s 522A did not apply when a stay pending appeal was sought from the Land Court after an appeal had been lodged with the Land Court. Parts of the relevant statutory provisions are poorly drafted, and for that reason are not easy to interpret. However, this Court is of the view that the appellant must succeed in its argument. Broad Structure of Chapter 11 Part 3 of the Act [3] Chapter 11 Part 3 of the Act deals with reviews of, and appeals from, various decisions of the respondent. It is in three divisions. The first contains definitions, one of which is relevant here: original decision. By s 519, an original decision is one listed in Schedule 2 to the Act. In this case the original decision to require financial assurance was one pursuant to s 295(1) of the Act. Such a decision is listed in Schedule 2 to the Act and, in particular, it is a decision listed in Schedule 2 Part 1 to the Act. [4] The second division of Chapter 11 Part 3 of the Act is entitled Internal review of decisions. It provides at s 521 that a person who is dissatisfied with an original decision may apply to have it reviewed within the Department. Such a review generates what is defined as a review decision by s 521(5). [5] Division 3 is the last division in Chapter 11 Part 3 of the Act. It is entitled Appeals, and provides for appeals to the Land Court and to the Planning and Environment Court, which is defined as “the Court” in the Act. Division 3 subdivision 1 deals with appeals to the Land Court. Division 3 subdivision 2 deals with appeals to the Planning and Environment Court. Section 522 of the Act [6] Returning to Division 2 of Chapter 11 Part 3, apart from establishing a procedure for review decisions at s 521, that division contains only the following three sections: “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— -- 3 of 19 -- 4 (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. 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. 522B Stay of decision to issue environmental protection order (1) This section applies to an application under section 522 for a stay of a decision to issue an environmental protection order. (2) The Land Court or the Court must refuse the application if satisfied there would be an unacceptable risk of serious or material environmental harm if the stay were granted.” (underlining added) [7] It is reasonably clear from: (a) the heading to s 522 – “Stay of … original decisions”; (b) s 522(2) – “stay the decision to secure the effectiveness of the review”; and (c) s 522(4) – “must not extend past the time when the administering authority reviews the decision”, that the main purpose of s 522 is to give both the Land Court and the Planning and Environment Court jurisdiction to stay an original decision pending internal departmental review pursuant to s 521. As statutory courts, neither would have such jurisdiction without this specific grant.1 1 cf the cases at footnote 2 below. -- 4 of 19 -- 5 [8] Difficulties arise because both subsections (2) and (4) include a reference to any appeal which might follow the review decision – see the underlined words in the extract above. Until the review decision is given, it is difficult to imagine that any court could properly grant a stay of an original decision pending both review of it, and appeal from that review. Apart from the absurdity of the notion that a stay could be granted of a review decision not yet made, the word “later” in s 522(4) seems clearly to contemplate a second application to the Court. Apparently the purpose of that second application is to secure the effectiveness of an appeal to the Land Court or the Planning and Environment Court – (2), or to enable the applicant to appeal against the review decision – (4). Competing Contentions as to the Ambit of s 522 [9] The respondent contended that the underlined words in s 522(2) and (4) were a grant of power to the Land Court (and jurisdiction to the Planning and Environment Court) to grant a stay pending appeal from a review decision, once appeal was commenced in one of those Courts. [10] The appellant contended that once an appeal was made to it, the Land Court had jurisdiction in that appeal, and power to grant a stay pending appeal pursuant to s 7A of the Land Court Act. Section 7A of the Land Court Act 2000 (Qld) provides: “(1) The Land Court has, for exercising jurisdiction conferred under this Act or another Act, all the powers of the Supreme Court, and may in a proceeding before the Land Court, in the same way and to the same extent as may be done by the Supreme Court in a similar proceeding— (a) grant any relief or remedy; and (b) make any order, including an order for attachment or committal because of disobedience to an order; and (c) give effect to every ground of defence or matter of set-off, whether equitable or legal. (2) Without limiting subsection (2), the Land Court has, in a proceeding before it, power to grant relief— … (c) by staying the proceeding or a part of the proceeding; or … (5) Subsection (1) has effect subject to— (a) another provision of this Act; and (b) a provision of another Act under which jurisdiction is conferred on the Land Court.” [11] It was common ground in this appeal that as a matter of general principle, the appellant was correct in this contention. And that is so: when there is a specific grant of jurisdiction to hear an appeal, and an appeal is begun, s 7A puts the Land Court in the same position -- 5 of 19 -- 6 as a court of unlimited jurisdiction, which does have power to stay a decision of the executive to prevent an appeal right being nugatory.2 [12] The appellant’s argument continued that the underlined words in s 522 should not be read as duplicating this grant of power in s 7A of the Land Court Act, but instead as giving a very limited jurisdiction which the Land Court would not otherwise have: jurisdiction to stay the operation of a review decision between the time it is made, and the time an appeal is begun in the Land Court. It relied upon the words in s 522(4) as to the duration of the stay: until review, and then for any later period necessary, “to enable the applicant to appeal against the review decision”, and contrasted them with the language of s 535(3), a section dealing with stays granted by the Planning and Environment Court. By s535(3) the stays granted by that Court are to last, “until the time the Court decides the Appeal”. There is a marked difference in language in these provisions which are close together in location and concept. It is valid to conclude it is a deliberate difference to which meaning should be given, if possible. [13] As to the words of s 522(2), the appellant emphasised the word, “later” as showing that the appeal lodged against the review decision was something to come later – ie, after the stay of the review decision pending such appeal being lodged. Again, the appellant’s contention is supported by the plain words of the section. [14] The appellant also relied on the history of the legislation. When the predecessor of Division 3, subdivision 1 was introduced, giving power to the Land and Resources Tribunal to hear appeals in very similar form to ss 523 and 524 of the Act,3 a power in the same terms as s 7A of the Land Court Act had only recently been given to that Tribunal.4 It is evident that the Parliament did have in mind the provisions of the relatively new Land and Resources Tribunal legislation at the time it drafted the 2000 amendments to the Environmental Protection Act. In particular, as a footnote to the new section dealing with starting appeals in the Land and Resources Tribunal, there appears the following, “For how to start the appeal, see the Land and Resources Tribunal Rules 2000, section 3 (Starting proceeding before tribunal).”5 This is significant in the present context, for another difference between the current Division 3 subdivision 1 (appeals to the Land Court) and Division 3 subdivision 2 (appeals to the Planning and Environment Court) is that the former contains no detailed provisions as to how appeal is to be made, whereas the latter does, and this difference dates from No 64 of 2000. Certainly as to machinery provisions for starting appeals in the Land Court, the legislature did not mimic the existing detailed provisions about starting appeals in the Planning and Environment Court, and it seems from the footnote just cited that was a deliberate decision because it realised there were detailed provisions about how to start appeals in the Land and Resources Tribunal Rules 2000. The appellant’s contention that the legislature would not have duplicated the s 7A power in s 522 is plausible. 2 Dwyer v National Companies and Securities Commission (1988) 15 NSWLR 285, 286-287 and the authorities cited there, followed in New South Wales Bar Association v Stevens (2003) 52 ATR 602 at [84]-[85]. 3 Environmental Protection and Other Legislation Amendment Act 2000 (Qld), No 64 of 2000, assented to 24 November 2000. 4 Section 65 Land and Resources Tribunal Act 1999 (Qld), No 7 of 1999, assented to 18 March 1999. 5 No. 64 of 2000, s 39, introducing s 203C. -- 6 of 19 -- 7 [15] Against the appellant, there seems limited utility in the grant of jurisdiction for which it contends. If a review decision is made, and it is thought necessary to seek an urgent stay pending appeal, it is difficult to see why any litigant would make an application to the Land Court, or the Planning and Environment Court, pending the filing of an appeal in that Court, rather than simply commence an appeal and, at the same time, seek a stay. That said, the idea that such jurisdiction is granted is not so far-fetched as to be described as absurd. On the appellant’s reading of the Act, if the underlined words are not interpreted as having this very limited operation, they are otiose. General principles dictate that such a construction is most undesirable.6 [16] As already noted, the respondent did not cavil with the general proposition that s 7A of the Land Court Act gave the Land Court power to grant a stay after an appeal within its jurisdiction had been commenced. However, it argued that in this case either s 522, qualified by s 522A, or ss 528 and 530, were provisions which cut down the Land Court’s power to grant a stay – see s 7A(5) of the Land Court Act. [17] Dealing with the second of these points first, it is quite clear that the provisions at ss 528 and 530 grant the Land Court powers, and perhaps delineate its powers, in dealing with the substance of an appeal which comes before it. On no sensible construction could they be seen to limit the powers it has otherwise to regulate its own processes, including by granting a stay to preserve the utility of an appeal. [18] The argument that s 522, as qualified by s 522A(2), limits the Land Court’s power to grant a stay assumes that the underlined words in s 522 do grant power to the Land Court to stay a review decision pending appeal, rather than looking to see whether those words can properly be so construed in the context of the legislation as a whole. That is, the argument is circular, assuming the conclusion, rather than supporting it independently. Interpreting Chapter 11 Part 3 [19] Turning to matters bearing upon the interpretation of the Land Court’s power to grant a stay pending appeal, there are three important features of Chapter 11 Part 3 which favour the interpretation propounded by the appellant. (1) Primary Purpose of s 522 [20] The first thing to note is that the scheme and words of s 522 are primarily designed to allow the Land Court and the Planning and Environment Court to grant a stay pending review. In both subsection (2) and subsection (4), reference to a later appeal is added as something subsidiary. This is a strong indication in favour of the appellant’s interpretation, especially when the respondent contends that the underlined words in s 522 have the effect that s 522A applies to substantially limit the power of the Land Court to grant a stay. The general principle is, of course, that clear words are necessary before a 6 Statutory Interpretation in Australia, DC Pearce and RS Geddes, 7th ed, Lexis Nexis, [2.26] and the cases cited there. -- 7 of 19 -- 8 statutory provision will be interpreted as derogating from extant powers.7 The underlined words in s 522 are far from clear. (2) Specific Grant of Jurisdiction to Stay in Division 3 subdivision 2 [21] Second, Division 3 subdivision 2 contains provisions in similar terms to ss 522, 522A and 522B, expressly giving the Planning and Environment Court jurisdiction to grant a stay pending appeal, once an appeal is begun in that Court. These sections are: “535 Stay of operation of decisions (1) The Court may grant a stay of a decision appealed against to secure the effectiveness of the appeal. (2) A stay may be granted on conditions the Court considers appropriate and has effect for the period stated by the Court. (3) The period of a stay must not extend past the time when the Court decides the appeal. (4) An appeal against a decision does not affect the operation or carrying out of the decision unless the decision is stayed. (5) This section applies subject to sections 535A to 535C. … 535B Stay of decision about financial assurance (1) This section applies to an application under section 535 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. 535C Stay of decision to issue environmental protection order (1) This section applies to an application under section 535 for a stay of a decision to issue an environmental protection order. (2) The Court must refuse the application if satisfied there would be an unacceptable risk of serious or material environmental harm if the stay were granted.” [22] In the face of such a clear and deliberate grant of power to the Planning and Environment Court to grant a stay pending appeal, it seems unlikely that the underlined words in s 522 were calculated to do the same thing, but by-the-by, in a section not primarily concerned with appeals. Because of the provisions at ss 535, 535B and 535C, there is no necessity to grant jurisdiction to stay a review decision to the Planning and Environment Court by s 522. It seems inescapable that on any construction, other than that propounded by the 7 Forster v Jododex Australia Pty Ltd & Anor (1972) 127 CLR 421, 435-6; Re Walters [2001] QSC 330, [11] citing Downes Transport Pty Ltd v Kropp [1959] Qd R 402, 409. -- 8 of 19 -- 9 appellant, see [12] above, the underlined words in s 522, so far as they relate to the Planning and Environment Court, must be regarded as surplusage or duplication, an undesirable result.8 [23] Interestingly, this difficulty has always been evident. The original legislation – the Environmental Protection Act 1994 – contained section 203, which was in very similar terms to s 522, including what we have called the underlined words. That legislation contained a right of appeal against review decisions, and a limited number of original decisions, to the Planning and Environment Court, but not to any other court or tribunal. It had a provision (s 208) very similar to s 535. Thus, the equivalent of the underlined words in s 522 (allowing stays from review decisions) were always largely redundant. [24] The explanatory notes to the Environmental Protection Bill 1994 do not shed any real light on this difficulty. They were in simplistic terms. As to what became s 203 (now s 522) the notes say that the section, “provides then an applicant in an appeal may request that the Court delays the commencement of the original decision, while the appeal is being heard.” The note to old s 208 (now s 535) said that the section, “provides that a stay of the decision appealed against may be granted on such conditions as the Court deems appropriate …” [25] A second set of explanatory notes is relevant because s 522A and s 535B were introduced by the Environmental Protection (Chain of Responsibility) Act 2016. The explanatory notes to that Bill strongly imply that the person drafting those amendments thought that a stay could be granted pursuant to s 522 which would last until an appeal was decided. Those notes say: “Section 522A Stay of decision about financial assurance Sections [sic] 522A provides that a stay may not be granted under section 522 in relation to a decision about the amount of financial assurance required under a condition of an environmental authority unless the administering authority holds security in the amount of at least 85% [sic] of the amount it has decided is required. This new provision is intended to address situations that have arisen in which the amount of financial assurance held for an environmental authority is considered inadequate and a stay has been granted so that the administering authority is unable to enforce a decision about the amount of financial assurance. During the stay period and before the determination of the appeal, the operator can continue its operations and is generally not required to pay additional financial assurance (unless the court orders otherwise as a condition of the grant of the stay). This means that the administering authority holds insufficient financial assurance during this period, increasing the risk to the State in the event that the operator should abandon a project. A decision can effectively be delayed indefinitely by the continuous submission of new plans of operations. The Department of Environment and Heritage Protection expends significant time and resources and is left without 8 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 13; Minister for Resources v Dover Fisheries Ltd (1993) 43 FCR 565, 574. -- 9 of 19 -- 10 a decision, and with inadequate financial assurance, until the court finally determines an appeal. This provision will ensure that the amount of financial assurance held is not significantly lower than the amount that the administering authority has decided is required, to minimise the risk that insufficient funds will be available if the financial assurance needs to be drawn on.” (underlining added) [26] There were further notes as to s 535 and s 535B. These shed no light on why a jurisdiction to stay pending appeal might be included in s 522 as well as s 535. These notes are: “Amendment s 535 (Stay of operation of decisions) Clause 14 provides that the operation of section 535, which contains the power for the Planning and Environment Court to stay a decision during an appeal from a review decision, is subject to the operation of section 535A and 535C. Insertion of new s 535B and 535C Clause 15 inserts provisions that are equivalent to those contained in clause 13. This clause inserts provisions that deal with the grant of stays for decisions about financial assurance or decisions to issue environmental protection orders under section 535 of the EP Act, whereas clause 13 [adding ss 522A and 522B] relates to the grant of stays for decisions about financial assurance or decisions to issue environmental protection orders under section 522.” (underlining added) [27] It must be said that these notes betray, in the parts underlined above, a lack of detailed understanding as to the precise provisions of the Act. It is wrong to say that s 535 contains “the power” if, as the notes to s 522A suggest, the drafter thought that power was also contained in s 522. Further, it is wrong to say that s 535 concerns stays pending appeal from a review decision; the section concerns stays pending appeal from either a review decision or an original decision. [28] Pursuant to s 14B(1)(a) of the Acts Interpretation Act 1954 (Qld) regard may be had to extrinsic material, which is defined to include explanatory notes, if a provision in an Act is ambiguous or obscure, and if the extrinsic material is capable of assisting in interpreting the legislation. In our view, the underlined parts of s 522 are ambiguous and obscure. However, we find the explanatory notes just discussed of little assistance for, as has been seen, they do not use language which assists in deciphering legal meaning, and betray little understanding of the precise legal concepts in the subject provisions of the Act. (3) No Specific Grant of Power to Stay in Division 3 subdivision 1 [29] The other thing to note about ss 535, 535B and 535C is that, while they appear in Chapter 11 Part 3 Division 3 subdivision 2 (appeals to the Planning and Environment Court), no equivalent provisions appear in subdivision 1 (appeals to the Land Court). Looked at broadly then, the scheme of Part 3 is that ss 522, 522A and 522B appear in Chapter 11 Part 3 Division 2, primarily directed at granting jurisdiction to both Courts to stay pending -- 10 of 19 -- 11 internal review. Jurisdiction to stay pending appeal is expressly given to the Planning and Environment Court in very similar terms, but nothing is said in the subdivision concerning appeals to the Land Court. This must have been deliberate on the part of the legislature. [30] The appellant argued that the legislature’s cognisance of the Land Court’s jurisdiction to stay pursuant to s 7A of the Land Court Act once an appeal had been made to the Land Court accounted for this scheme. Its argument was that the statutory scheme was logical in that it: (a) granted jurisdiction to both the Land Court and Planning and Environment Court to stay pending review, for both courts lacked that jurisdiction without a specific grant (s 522); (b) granted the Planning and Environment Court power to stay pending appeal, for that Court lacked that jurisdiction without specific grant (s 535); (c) omitted to make a similar grant to the Land Court because it understood that s 7A of the Land Court Act made that unnecessary, and (d) granted jurisdiction to both Courts to stay after a review decision, but before appeal, for both Courts lacked that jurisdiction without a specific grant (s 522(2) and (4)). [31] The respondent met this with a rather ingenious response based upon its interpretation of ss 523 and 524 of the Act. It argued that the legislature intended that the Land Court only have jurisdiction to hear appeals from review decisions, and no jurisdiction to hear appeals from original decisions. This intention accounted for the fact that no sections equivalent to ss 535, 535B and 535C were thought necessary to include in Division 3, subdivision 1 (appeals to the Land Court). The argument was that Parliament realised no such provisions were needed because s 522 did all the necessary work: it gave a power (limited by ss 522A and 522B) to grant stays of a review decision pending appeal. Because the Planning and Environment Court also had jurisdiction to hear appeals from original decisions, more jurisdiction to stay was needed in Division 3, subdivision 2 and was given in s 535, limited by ss 535B and 535C. [32] It must be remarked at the outset that the fact that s 535 is not in terms confined to appeals from original decisions, and that therefore there is necessarily duplication in those provisions, does not favour this interpretation. However, to deal fully with this argument it is necessary to examine a very fundamental question: what jurisdiction to hear appeals do ss 523 and 524 of the Act confer on the Land Court? Our conclusion is that the words of these sections can only be construed as granting jurisdiction to hear appeals from review decisions. Were an appellant to appeal to the Land Court from an original decision, even an original decision from which there was no right of internal review,9 this Court would be obliged to hold that it had no jurisdiction to hear the appeal. This would be so, for while it can be discerned from ss 523 and 524, in conjunction with ss 522(2), 522(4), 527 and 531(2)(a), that the Land Court has jurisdiction to hear appeals from review decisions,10 there is no unambiguous grant of jurisdiction to hear appeals from original decisions, even where there is no right of internal review. 9 For example, the third decision in Schedule 2 Part 1 Division 1, s 51(2)(b)(ii) decision about way of publishing EIS notice. 10 Which review decisions result from reviews of original decisions mentioned in Schedule 2 Part 1. -- 11 of 19 -- 12 [33] There is a clear indication both from the words of ss 523 and 524, and the explanatory notes to them, that there is error or omission in the drafting of these sections. This is of such a magnitude that the Court cannot correct it. However, having identified the error or omission, this Court cannot conclude, as the respondent invited it to, that there was any deliberate intention of the Parliament to limit appeals to the Land Court to appeals from review decisions and, in consequence, not include a section equivalent to s 535 in Division 3 subdivision 1. Ambit of Appeal to the Land Court [34] It will be recalled that Chapter 11 Part 3 establishes that a review decision is made on internal review when an applicant is dissatisfied with an original decision. Further, the scheme of the Act is that some appeals are heard in the Land Court, whereas others are heard in the Planning and Environment Court.11 As to the latter class of decisions, the provisions of Division 3 subdivision 2 are detailed and specific. At s 531(1) of the Act it is provided that a person dissatisfied with a review decision may appeal against the decision to the Planning and Environment Court. At s 531(2) it is provided that no appeal lies to the Planning and Environment Court from (a) review decisions to which subdivision 1 applies (Land Court appeals), and (b) some other scheduled decisions. The Chief Executive may appeal to the Planning and Environment Court against original and review decisions of a particular type – s 531(3). Lastly, at s 531(4) it is provided that a person who is dissatisfied with an original decision to which section 521 does not apply, may appeal against the decision to the Planning and Environment Court. In summary, the Planning and Environment Court is to hear appeals from review decisions, and a limited class of original decisions. [35] By contrast ss 523 and 524 are less detailed and unfortunately, it must be recognised that these sections contain drafting errors; most likely some words, perhaps even whole subsections, have been omitted. The sections provide: “Division 3 Appeals Subdivision 1 Appeals to Land Court 523 Review decisions subject to Land Court appeal This subdivision applies if the administering authority makes an original decision mentioned in schedule 2, part 1. 524 Right of appeal A dissatisfied person who is dissatisfied with the decision may appeal against the decision to the Land Court. …” [36] The words “the decision” in s 524 of the Act would normally be construed as meaning the decision in the previous section – ie, an original decision in Schedule 2 Part 1. It would however be absurd to grant an appeal only against an original decision having regard to the purpose of Chapter 11 Part 3 Division 1, ie, to establish the concept of a 11 See s 522(1)(a) and (b). -- 12 of 19 -- 13 review decision. Further, s 522, s 527 and s 531(2)(a) clearly contemplate that there may be appeals to the Land Court from review decisions. [37] The heading to s 523 forms part of that section – see s 35C of the Acts Interpretation Act 1954 (Qld). The respondent’s argument was that the word “Review” in the heading of s 523 ought govern the meaning of “the decision” in s 524, rather than the actual words of s 523. That is that “the decision” in s 524 should be construed as meaning a review decision made from an original decision, which original decision is mentioned in Schedule 2 Part 1. [38] The respondent saw s 527 of the Act as supporting this construction. Section 527 is headed “Nature of appeal” and provides that, “appeal is by way of rehearing, unaffected by the review decision.” The section makes no reference to original decisions. The Court accepts that the words of s 527 are a strong textual indication in favour of the respondent’s construction. [39] It is certainly possible that the legislature intended that the only appeals which the Land Court was to hear were appeals from review decisions. If that were the intention of the legislature, it would have been necessary to make clear that it was review decisions from original decisions listed in Schedule 2 Part 1, not all review decisions, which were to be the subject of an appeal to the Land Court. This would account for the words “original decision mentioned in Schedule 2, Part 1” in s 523. That is, it is possible that those words were the beginning of such a provision. It is possible to imagine words at the end of the existing s 523 such as, “and a review decision is made about that original decision pursuant to s 521”. Such a provision would be consistent with both the heading to s 523 and s 527. It is also possible to imagine the existing words of s 523 being recast as the first of a series of subsections which provided, at least, that review decisions made about Schedule 2 Part 1 original decisions could be the subject matter of an appeal to the Land Court. Further, it is possible to imagine a subsection or subsections in this series which allowed appeal to the Land Court from a limited class or classes of original decisions in much the same way as appears in s 531. Such a provision might not have sat happily with the heading to s 523, or s 527, but such inconsistencies are not unknown in legislation, and the provisions of Chapter 11 Part 3 are not without other infelicities. As well, the extant provision at s 524 is rather bare; it is quite possible that words, or indeed another subsection, may have been omitted from it. [40] Is the Court justified in assuming that some such provision or provisions were intended to be included either at the end of s 523 or at the beginning of s 524? Courts have presumed to overcome error or absurdity using what is known as the golden rule.12 Generally, however, such readings involve only a change to one or two words, or the position of one or two words.13 In Sevmere Pty Ltd v Cairns Regional Council & Anor14 the Court of Appeal applied Lord Diplock’s formula in Wentworth Securities Ltd v Jones as to when errors or omissions could be remedied. It was to the effect that three preconditions needed to be met: 12 Statutory Interpretation in Australia, above, [2.4] and [2.28]. 13 See the examples given at Statutory Interpretation in Australia, [2.28]. 14 [2009] QCA 232, per Holmes JA at [53] ff and per Dutney J at [71]. -- 13 of 19 -- 14 “First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.”15 [41] As the discussion in the judgment of Holmes JA shows, the Court’s use of the golden rule in such circumstances is very much aligned with its taking a purposive approach to the interpretation of legislation, so that if the object or purpose of the legislation can be discerned, the Court should strive to give effect to it.16 [42] In Taylor v The Owners – Strata Plan No 11564 & Ors17 the High Court approved Lord Diplock’s three conditions in Wentworth Securities, “as reformulated” in Inco Europe Ltd v First Choice Distribution18 saying, “The reformulation was of the third condition: the court must be abundantly sure of the substance, although not necessarily the precise words, the legislature would have enacted.” [43] As can be seen from Lord Diplock’s formulation, the Court must be careful not to cross “the boundary between construction and legislation”. In particular, the cases contain warnings about supplying omitted words.19 In both Taylor and Sevmere the Courts expressly adopt the warning given by Lord Nicholls of Birkenhead in Inco Europe to the effect that even when Lord Diplock’s three conditions are met, the Court may still refrain from interpreting the statutory provision, “in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. In Western Bank Ltd v Schindler [1977] Ch 1, 18, Scarman LJ observed that the insertion must not be too big, or too much at variance with the language used by the legislature.”20 [44] The legislative history and explanatory notes which relate to the provisions at ss 523 and 524 are relevant in interpreting them. Under the original legislation – the Environmental Protection Act 1994 – there was provision for internal review of decisions and then provision for appeal only to one court – the Planning and Environment Court. The appeal 15 [1980] AC 74, at pp 105-106. 16 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, cited at [55] in Sevmere Pty Ltd, see also Statutory Interpretation in Australia, [2.28]. 17 (2014) 253 CLR 531, [39]. 18 [2000] 1 WLR 586 at 592, see footnote 84 of the High Court judgment in Taylor. 19 R v Young (1999) 46 NSWLR 681, 687, see also Sevmere at [59]. 20 Inco, p 592, cited at [61] of Sevmere and [40] of Taylor. -- 14 of 19 -- 15 provision was an early version of s 531. Relevantly, it, like s 531, was much clearer than the current ss 523 and 524. That original provision was: “Who may appeal 204.(1) A dissatisfied person who is dissatisfied with a review decision may appeal against the decision to the Court. (2) The chief executive may appeal against another administering authority’s decision (whether an original or review decision) to the Court. (3) A dissatisfied person who is dissatisfied with an original decision to which section 202 [Procedure for review] does not apply may appeal against the decision to the Court.” [45] The explanatory notes to that original legislation are to the effect that the legislation provides for persons dissatisfied with an original decision to go through the internal appeals process, and then, if still dissatisfied, appeal to the Planning and Environment Court.21 The notes go on to explain that there will be some original decisions from which there can be no internal review22 and that appeal to the Planning and Environment Court was from (1) review decisions and (2) original decisions which could not be the subject of internal review.23 [46] The Environmental Protection and Other Legislation Amendment Act 200024 introduced the scheme under which appeal lay from some decisions to the Planning and Environment Court, and from other decisions to the Land and Resources Tribunal. That Act contained the wording which is now found at ss 523, 524 and 527.25 [47] The explanatory notes to No 64 of 2000 do not assist either in interpreting ss 523 and 524, or in understanding the intention of Parliament as to these sections.26 However, they strongly support the idea that something went fundamentally astray in the drafting of s 523 at least. The explanatory notes themselves contain an obvious omission, and it is an omission of the very thing which matters in this appeal: the subject matter of an appeal to the then Land and Resources Tribunal. The explanatory notes are as follows: “ Division 3 – Appeals Subdivision 1 – Appeals to tribunal Review decisions subject to tribunal appeal Section 203A states that this division applies to that are subject to objection or appeal to the Land and Resources Tribunal (listed in schedule 1, part 1).” [sic] 21 See the notes to ss 199 and 200 at p 36 of the explanatory notes to the Environmental Protection Bill 1994. 22 See the notes to s 201. 23 See the notes to s 203. 24 No 64 of 2000. 25 See s 39 of No 64 of 2000. 26 Environmental Protection and Other Legislation Amendment Bill 2000 explanatory notes and pp 122 ff. -- 15 of 19 -- 16 [48] Schedule 1 Part 1 referred to in the explanatory notes, and indeed the legislation was headed: “Part 1 – Original decisions for tribunal appeals”. In all the circumstances that heading to the schedule is ambiguous as to whether or not there was some intention to include some original decisions as the subject matter for tribunal appeals. [49] This Court cannot supplement the existing words of ss 523 and 524. To use the words of the cases reviewed above, while this Court can conjecture as to what the parliamentary intention was, and conjecture as to the substance of what is missing, it is not enough that such conjecture is “reasonably open having regard to the statutory scheme.”27 This Court could not be abundantly sure that the legislature meant to exclude appeals from original decisions to the Land Court. The original 1994 legislation, and the explanatory notes to it, show that originally someone dissatisfied with an original decision who had no right of internal review was not left to whatever remedy might be provided by administrative law, but was to have a right of appeal to the Court. The changes introduced by No 64 of 2000 certainly contain indications that that position may have changed, but the obvious omission at either s 523 or s 524, and the obvious omission from the explanatory notes to the 2000 amending legislation, reveal that there is at least one rational competing hypothesis: that, undetected by the parliamentary draftsman, the position was still under consideration at the time the legislation was enacted, or, had it been resolved, that final resolution was not included in either the Act or the explanatory notes. [50] In these circumstances, this Court could not conclude that Parliament intended that original decisions never be the subject matter of appeals to the Land Court and could not therefore conclude that it was with this in mind that the legislature determined that no equivalent to ss 535, 535B and 535C was needed in relation to Division 3 subdivision 1, as stays from review decisions were already covered by the provisions of s 522. Conclusion as to Land Court’s Power to Grant a Stay [51] The Court’s conclusion is that s 522 should be construed as the appellant contends, particularly having regard to the three matters discussed under the heading Chapter 11 Part 3 (above). The Court prefers the appellant’s construction because it results, as the appellant contended, in the logical scheme set out at paragraph [30] above. [52] As already remarked there are considerable difficulties with the drafting in Chapter 11 Part 3. However, the scheme referred to at [29] above has been in the legislation since 2000. It was well established when ss 522A and 522B, and ss 535B and 535C were introduced. These sections were introduced into the existing framework, ie., the legislature did not make any change to the exiting scheme. Appellant’s Alternative Argument: Stay upon Payment [53] The appellant made an argument in the alternative to that just dealt with, as to the construction of s 522A(2). The argument was that it was not necessary for a dissatisfied person to pay 75 per cent of the amount of financial assurance as required by this subsection before the Land Court or Planning and Environment Court determined the stay 27 Director of Public Prosecutions (Vic) v Leys (2012) 296 ALR 96, [96] cited in Taylor at [39]. -- 16 of 19 -- 17 application pending internal review. It was argued that, consistently with the words of s 522A(2), an order might be made on such a stay application to the effect that, upon the applicant for a stay paying the requisite amount of money as required by s 522A(2), the original decision was stayed. [54] While the point is strictly obiter given the Court’s construction of s 522 (above), we would record that we thought the appellant’s argument correct in this regard, particularly having regard to the difference in language used at s 522A(2) – the decision may not be stayed, and the language at s 522B(2) – the Court must refuse the application. We will also record that the respondent conceded this interpretation of s 522A(2). Stay [55] The parties were content for this Court to determine whether or not a stay ought to be granted in this matter, rather than remit the matter to the Land Court. [56] The principles governing the exercise of discretion to grant a stay pending appeal are to be found in Alexander & Ors v Cambridge Credit Corporation Ltd (receivers appointed) & Anor,28 Berry v Green,29 and Cook’s Construction Pty Ltd v Stork Food Systems Aust Pty Ltd.30 The following principles are drawn from those cases. Neither party contended that these principles were not applicable to a stay pending appeal from a review decision, ie, a decision of the executive, rather than the decision of a court. [57] At base, orders to stay pending appeal are granted so that the appeal itself is not rendered nugatory. One relevant factor then is the Court’s assessment of the prospects of success of the appeal. However, it is recognised that a court deciding whether to grant a stay is not in as good a position as the appeal Court will ultimately be to judge those merits. It is not necessary for special or exceptional circumstances to be shown before a stay will be granted; it is sufficient if there is appropriate reason shown for a stay, bearing in mind that the decision appealed from is final until it is overturned on appeal. Harm to the applicant if a stay is not granted is relevant. So is disadvantage to the respondent if the stay is granted. In weighing all these factors, particularly the last two, the Court will sometimes impose a condition on the grant of a stay to ameliorate harm. Often that condition is to require security for monetary harm which the Court sees as likely. The Court strives to produce a situation which is fair in the interests of all parties. [58] At the hearing in the Land Court, affidavits were read by both sides. No-one was required for cross-examination and the matter proceeded on the basis that the member was to determine it on the affidavit material. [59] The affidavit material showed that the financial assurance was required in relation to a site, formerly a gold mine, located 60 kilometres south-west of Greenvale in North Queensland. Mining had not been undertaken on that site since 1998. A financial assurance of $175,536 had been provided by the appellant in relation to the site in 1996. 28 (1985) 2 NSWLR 685, 693 ff. 29 [1999] QCA 213. 30 [2008] QCA 322. -- 17 of 19 -- 18 [60] In early 2015 the appellant had been issued with an Environmental Protection Order in relation to environmental hazards on the mining site. During the course of 2015, rehabilitation works were undertaken in compliance with the Environmental Protection Order and accepted as being satisfactory. The cost of these works was paid by the appellant and did not affect the amount of financial assurance which the respondent held. It appears those works were accepted as having been finalised on 10 December 2015. [61] This history is of consequence given the scope of the respondent’s authority to impose a condition requiring a financial authority. Section 292(2) provides a financial assurance may only be required if the respondent is satisfied it is justified, having regard to the degree of risk of environmental harm being caused, the likelihood of action being required because of that harm and the environmental record of the holder. The evidence establishes that the appellant has, in the past, dealt with identified hazards to the respondent’s satisfaction. [62] The original decision to require $4,498,744 as a financial assurance was made on 30 October 2015 and it appears that the appellant’s objection to the amount of financial assurance required is that it is calculated having regard to work which the appellant says is not necessary, or is no longer necessary having regard to its compliance with the Environmental Protection Order. There is considerable detail of the appellant’s contentions in its affidavit material. This Court is not in a position to understand that detail, but it was conceded on appeal that the appeal was not unmeritorious.31 [63] The appellant did not say that it could not provide the amount of the financial assurance fixed by the respondent, but explained, again in some detail, that as it is a company primarily funded by a group of companies situated in Papua New Guinea, it would be very difficult to provide the financial assurance. The group financial controller for the New Guinea group of companies explained why it was most unlikely that cash could be transferred from New Guinea to Australia. To provide the financial assurance it would be necessary for the New Guinea group of companies to borrow money while providing 110 per cent of the loan amount as a cash security in New Guinea. Taking that amount of cash out of the New Guinea operations would adversely impact upon the New Guinea businesses and perhaps necessitate the sale of income producing assets in New Guinea. As well, there would be interest charged on the loan. Those consequential losses to the business, and interest, are financial expenditures which the appellant claims would be irrecoverable if it were successful on appeal. [64] The respondent emphasised the importance of having adequate financial assurances in terms of protecting the environment of the State. That much may be accepted. It may also be accepted that it is more prudent to have adequate financial assurances from a company which, it appears, does not have the resources to fund large rehabilitation projects but has relied upon other companies in a group situated outside Australia for funding. [65] The respondent did not offer any undertaking as to consequential loss which the provision of the financial assurance pending stay might produce. The respondent did not seek to cross-examine the appellant’s deponents to suggest that the difficulties in obtaining funds 31 t 1-23 and t 1-50. -- 18 of 19 -- 19 from New Guinea, or that the difficulties and potential commercial losses to the appellant’s parent group of companies were less than indicated in its affidavits. Nor was it sought to cross-examine along the lines that some amount short of the full amount of the financial assurance required by the respondent could be provided with less difficulty or less potential financial loss to the appellant. There was no submission made by the respondent that any lesser amount than 75 per cent of the financial assurance should be given as security if a stay were made. That is, its arguments about security if a stay were made were based only on the provisions of s 522A, not on any factual basis. The respondent did not urge that there was any immediate risk of harm if a stay were granted, or were granted without security being provided by the applicant. [66] In the circumstances this Court will order that the review decision of the respondent dated 22 April 2016 is stayed until the disposition of the appeal begun on 20 May 2016 in this Court, or further prior order. DALTON J FY KINGHAM PRESIDENT OF THE LAND COURT WL COCHRANE MEMBER OF THE LAND COURT -- 19 of 19 --