Citigold Corporation Limited v Chief Executive, Department of Environment & Heritage Protection (No. 2) [2015] QLC 50 (2015) 36 QLCR 496

LAND COURT OF QUEENSLAND CITATION: Citigold Corporation Limited v Chief Executive, Department of Environment & Heritage Protection (No. 2) [2015] QLC 50 PARTIES: Citigold Corporation Limited (applicant) v Chief Executive, Department of Environment & Heritage Protection (respondent) FILE NO: EPA055-15 DIVISION: General Division PROCEEDING: Application for a stay DELIVERED ON: 16 December 2015 [Ex tempore] DELIVERED AT: Brisbane HEARD ON: 16 December 2015 HEARD AT: Brisbane MEMBER: PA Smith ORDER: 1. The original decision of the respondent dated 27 November 2014 be stayed until midnight on 29 February 2016 save for further order of the Court. 2. That the applicant pay financial assurance in the total sum of $1 million by cash or bank guarantee to the respondent. 3. That costs be reserved. CATCHWORDS: Practice and procedure – continuation of stay of proceedings – Environmental Protection Act 1994 s 535 – application of relevant principles Practice and procedure – issue of prejudging substantial matter in hearing stay application. Environmental Protection Act 1994, s 535. Land Court Act 2000. -- 1 of 5 -- 2 Citigold Corporation v Chief Executive, Department of Environment and Heritage Protection [2015] QLC 10 Minister for Immigration and Multicultural Affairs v Legeng and Others (2000-2001) 205 CLR 507 APPEARANCES: Ms McIntyre of Counsel for the applicant, Citigold Corporation Limited Mr Dillon of Counsel for the respondent, the Department of Environment and Heritage Protection. [1] The Court has before it an application by the appellant in these proceedings to continue a stay on the same basis as that set out in my reasons for decision in Citigold Corporation v Chief Executive, Department Environment and Heritage Protection.1 That is, that the original decision of the respondent of 27 November 2014 be stayed for a period of time to be extended on the basis of the applicant paying a financial assurance in the form of cash or bank guarantee to the respondent in the total amount of $1 million. It is certainly not necessary for me to repeat anything that I have said in my original decision on the stay application, but all of that needs to be taken into account. [2] It is also highly pertinent to note that the stay application has quite properly been brought by the appellant, in the complete knowledge of the respondent, at this late time of the year, and late in the hearing, due particularly to the nature in which the hearing of the matter has progressed. The hearing of the substantive matter was originally anticipated to take five days, including an inspection (perhaps) of the property. We are as of now at the conclusion of eight days of hearing, including two days of inspection, and we have only just managed to complete the evidence of two expert witnesses. I offer no criticism whatever to the representatives of each party with respect to the length of time that the substantive matter is taking to hear as it is an important case. [3] As I have pointed out during the hearing of the substantive matter, the substantive matter is the first financial assurance matter to proceed to a full hearing before this court and it is therefore being understood by all parties to be a test case of the financial assurance provisions of the Environmental Protection Act 1994, and in those circumstances there comes with a test case benefits and pitfalls. The benefits, of course, are that one is not troubled so much by previous precedents which may have gone against the arguments of one side or another in the way in which they choose to put their cases. The pitfall is that one is not troubled by previous cases and the way in which they have been considered, so there is no guidance as to the manner in which the court will consider matters. It has been 1 [2015] QLC 10. -- 2 of 5 -- 3 necessary, as I understand it, for both counsel to cross-examine the respective expert witnesses extensively and to a much greater extent than they had originally anticipated. To me, that goes with the territory of test cases in areas as complex as this matter. [4] I make those comments by way of background but also to highlight a major concern that I have, and this is a concern that has been squarely put by Ms McIntyre for Citigold; that is, that to increase the amount of the financial assurance payable at this point as part of a condition of an extended stay may be viewed as a form of prejudging the substantive decision which I have to give in this matter. [5] I am determined to do all I can to ensure that I do not prejudge the substantive issue. I say this bearing in mind the observations of the High Court of Australia in the decision of Justice Hayne in the case of Minister for Immigration and Multicultural Affairs v Legeng and Others,2 where Justice Hayne had this to say at paragraph 185 on page 564: “Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudiced is one which should be considered afresh in relation to the particular issue.” [6] The appellant has not closed its case. The appellant enjoys at this time all of the benefits and obligations of proceedings, including proceedings brought pursuant to the Land Court Act 2000, where the rules of evidence and forms of procedure are somewhat different to those which apply in the traditional courts. I have specifically asked Ms McIntyre to advise the court as to the amount of financial assurance contended for by Citigold at this time. She has responded in a sum of approximately $550,000, being the same sum contended for when I heard the original stay application. For the reasons that I have already given in my earlier stay decision, I do not consider, taking into account all the circumstances of this matter, including the financial position of the appellant and the nature of the evidence known to me specifically in the stay application hearings both originally before me and in the material before me in the stay application only at this time, that that amount is sufficient. 2 (2000-2001) 205 CLR 507. -- 3 of 5 -- 4 [7] The vexed question is, of course, whether or not the sum of $1 million should be increased. The State seeks to increase that amount by a sum of $2,574,055. It does so for, in my view, completely understandable and transparent reasons. It has provided in exhibit 2 in the stay application proceedings of this afternoon a marked up document from the substantive proceedings which clearly shows a logical analysis of the evidence by which such a sum could quite reasonably be taken to be ultimately concluded in this matter. The main point, though, is that it is a matter which may ultimately be decided, not which must ultimately be decided, and in a technical sense I do not consider any of the material in the substantive hearing, particularly one in which the appellant’s side has not closed, to be before me specifically for this stay application. I should add that even if it were, my concerns, mirroring those as expressed by Justice Hayne as to prejudging of the issue, would remain [8] The time will come, I trust, sooner rather than later when the appellant will be required to state clearly before this court based on all of the evidence in the substantive hearing what amount of financial assurance it says is properly payable with respect to the plan of operations. I find it inconceivable that the State should bear the risk of an amount of financial assurance actually paid and held in circumstances where the amount contended for by an appellant is less or, indeed, somewhat less than the amount for which the appellant contends. Technically, though, at this stage, the appellant still contends for a sum of $550,000, and it would, in my view, be prejudging the issue to do otherwise at this still early stage of the proceedings. [9] I do not propose, though, to simply allow a blanket continuance of the stay under its present terms as effectively sought by Ms McIntyre. I think that itself would be counterproductive to the interests of the public and of the State. Accordingly, what I propose to do is to continue the stay in accordance with the orders that I made on 13 March 2015 by changing the date in order 1 from 31 December 2015 to 29 February 2016. [10] In continuing the stay on the conditions I have indicated until 29 February 2016, I do so with these relevant factors being taken into account: firstly, based on the current estimates by both counsel, that the hearing of evidence will conclude in early February; secondly, that at a time relatively shortly after the conclusion of the evidence and certainly before 29 of February, the appellant should be in a position to advise both the court and the respondent of the quantum of financial assurance that it is seeking in light of the evidence in the closed case at that time; thirdly, I do so in the knowledge that my calendar is rather horrific for the first half of the year and I do not know at this time, -- 4 of 5 -- 5 particularly when it comes to preparation of transcripts and other necessary matters which I know the parties will need for the preparation of submissions, just when the final submissions in this matter will be heard. [11] The material before me on this stay application has been quite understandably a little rushed from both parties’ point of view. I think, as Mr Dillon indicated, the nature of the application of the stay as it has been understood by the State and by the court for that matter has evolved not only throughout the previous months but particularly has evolved today. I make no criticism of anybody in that regard. [12] In allowing the stay until the end of February and on the assumptions that I have made and just detailed, I explicitly state that my expectation would be that if there is no decision in the matter by 29 February 2016 and particularly if there is a potential that there may be a considerable delay before that decision can be granted simply because of my physical unavailability to write a decision while I’m sitting in court in other matters for 16 weeks, I would require both parties to come back before me prior to 29 February 2016 to fully argue the question of what should happen to the stay on the basis of the then state of the proceedings, whatever that may be. [13] The orders, therefore, will be that the original decision of the respondent dated 27 November 2014 be stayed until midnight on 29 February 2016 save for further order of the Court; that the applicant pay financial assurance in the total sum of $1 million by cash or bank guarantee to the respondent; and that costs be reserved. Orders 1. The original decision of the respondent dated 27 November 2014 be stayed until midnight on 29 February 2016 save for further order of the Court. 2. That the applicant pay financial assurance in the total sum of $1 million by cash or bank guarantee to the respondent. 3. That costs be reserved. PA SMITH MEMBER OF THE LAND COURT -- 5 of 5 --