BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd [2011] QLAC 2 (2011) 32 QLCR 118

LAND APPEAL COURT OF QUEENSLAND CITATION: BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd [2011] QLAC 2 PARTIES: BHP QUEENSLAND COAL INVESTMENTS PTY LTD ACN 098 876 825 (first appellant) QCT RESOURCES PTY LTD ACN 010 808 705 (second appellant) BHP COAL PTY LTD ACN 010 595 721 (third appellant) QCT MINING PTY LTD ACN 010 487 840 (fourth appellant) MITSUBISHI DEVELOPMENT PTY LTD ACN 009 779 873 (fifth appellant) QCT INVESTMENT PTY LTD ACN 010 487 831 (sixth appellant) UMAL CONSOLIDATED PTY LTD ACN 000 767 386 (seventh appellant) v CHERWELL CREEK COAL PTY LTD ACN 063 763 002 (respondent) FILE NO: LAC009-10 DIVISION: Land Appeal Court of Queensland PROCEEDING: Appeal against a decision of the Land Court refusing separate determination of issue ORIGINATING COURT: Land Court at Brisbane DELIVERED ON: 8 April 2011 DELIVERED AT: Brisbane HEARING DATE: 15 November 2010; 16 November 2010 THE COURT: Peter Lyons J Mrs CAC MacDonald, President of the Land Court Mr WL Cochrane, Member of the Land Court -- 1 of 16 -- 2 Judgment of the Court ORDER: Appeal dismissed CATCHWORDS: APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - OTHER MATTERS - - where application for compensation under s 722G of the Mineral Resources Act 1989 (Qld) filed – where validity of a grant of an exploration permit for coal raised as a ground to oppose the application – where application made for the issue of validity to be determined separately from, and in advance of, other issues in the compensation application – whether refusal to allow such application should be overturned on the basis of a miscarriage of judicial discretion Mineral Resources Act 1989 (Qld), s 722G Land Court Rules 2000 (Qld), r 19 Re Multiplex Constructions Pty Ltd [1999] 1 Qd R 287, considered COUNSEL: B O’Donnell QC, with S B Hooper, for the appellant S L Doyle SC, with A M Pomerenke, for the respondents SOLICITORS: Holding Redlich Lawyers for the appellants Allens Arthur Robinson for the respondent [1] THE COURT: On 8 August 2008 the respondent (Cherwell Creek) filed an application in the Land Court (compensation application) for compensation under s 722G of the Mineral Resources Act 1989 (MRA). The appellants (a group of entities to whom it is convenient to refer as BMA) identified the grounds on which they opposed the application, in a document referred to as a defence. Paragraph 3(b)(ii) of the defence raised an issue (validity issue) about the validity of the grant to Cherwell Creek of an exploration permit for coal (EPC 545). BMA applied for a direction that the validity issue be determined separately from, and in advance of, the other issues in the compensation application. They have appealed against the refusal to make that direction, essentially on the ground that a discretion miscarried. Background [2] EPC 545 issued in 1994, and was renewed in 2003. A special lease (SL 12/42239) has been granted to BMA. There is an area of land which is common to SL 12/42239 and EPC 545. BMA also has a mining lease (ML 1775) over land adjoining the land the subject of EPC 545. Cherwell Creek made an application for a mineral development licence over part of the land within EPC 545 (MDLA 364). A dispute arose between BMA and Cherwell Creek, ultimately centred on the right to mine coal on land the subject of EPC 545. That resulted in an amendment of the MRA, by the insertion of Part 18A, which includes s 722G. [3] Section 722G gave Cherwell Creek the right to make the compensation application. If it is successful, BMA, and not the State, will be liable to pay compensation to Cherwell Creek. -- 2 of 16 -- 3 [4] Under s 722G, the Land Court is required to decide whether any compensation should be payable, and if so, the amount. In making these decisions, the Land Court is required to have regard to the likelihood that, if Part 18A had not been enacted, Cherwell Creek would have been able to “commercialise” a coal resource within the land the subject of EPC 545. In doing that, the Land Court is required to have regard to (amongst other things) the likelihood of a mining lease being granted to enable the exploitation of that resource, and to “any other relevant matter”.1 For that reason, it is asserted in paragraph 3 (b) (iii) of the defence that, without a valid grant of EPC 545, no mining lease or mineral development licence could or alternatively would have been granted to Cherwell Creek. As a basis for this allegation, BMA have raised the issue found in paragraph 3(b)(ii) of the defence, which is (along with introductory word) in the following terms: 3. As to paragraph 4 of Annexure A, the Respondents: … (b) Deny that the applicant would have been issued with a mining lease by reason of the following – … (ii) EPC 545 was not validly granted in 1994 and not validly renewed in August 2003. [5] The issue has been particularised in some detail. The formal grant of EPC 545 was executed, not by the Minister, but by a person who was then the Acting Director, Energy Division, Department of Minerals and Energy. BMA allege (amongst other things) that the purported grant was outside the scope of the delegation, which did not permit the delegate to act in “unusual circumstances”, or where the matter was “of a sensitive or political nature”. BMA support the allegation that the Acting Director acted beyond the scope of the delegation by referring to the obligations found in the Central Queensland Coal Associates Agreement (CQCAA), which was the subject of the Central Queensland Coal Associates Agreement Act 1968 (Qld) (CQCAA Act). The CQCAA provided that the rights of the companies who are parties to the agreement, under the agreement and under certain mining tenements, should not “in any way through any act of the State be impaired, disturbed or prejudicially affected”. Some of the respondents to the proceedings in the Land Court are party to the CQCAA, and it is alleged that other parties to the agreement are the predecessors of other respondents to those proceedings. BMA then allege that the grant of EPC 545 would impair, disturb and prejudicially affect the rights of those parties; and accordingly, the decision whether to grant EPC 545, because of the “unusual circumstances” and because it was “of a sensitive or political nature”, was outside the scope of the delegate’s power. [6] The allegation that the grant of EPC 545 would impair, disturb and prejudicially affect the rights of the appellants is further particularised by reference to a submission made on 18 March 2002 to the then Minister for Natural Resources and Mines, in opposition to Cherwell Creek’s application for the renewal of EPC 545. Those particulars refer to the impact of the operations conducted by BMA on the land the subject of SL 12/42239, and ML 1775. [7] It should also be noted that Cherwell Creek has alleged that in respect of land to which EPC 545 relates, it would have been granted a mineral development licence (MDL 364) by about May 2008; and would have been granted a mining lease by about December 2009; in each case, but for the enactment for Part 18A of the MRA. 1 See s 722G(5)(g) and (h) of the MRA. -- 3 of 16 -- 4 In the defence, it is alleged that Cherwell Creek would not have been granted MDL 364; and it would not have been granted the mining lease (by about December 2009 or at all). The particulars given of these allegations include reliance on paragraph 3(b) of the defence, and the particulars of that paragraph. The Land Court’s power to order a separate determination [8] The Land Court determined BMA’s application by reference to r 19 of the Land Court Rules 2000 (Qld) (LC Rules). There has been no suggestion that it was not the relevant provision for the application, or that some other statutory provision relevantly regulated the Land Court’s power. Rule 19 of the LC Rules is as follows:- 19 Directions hearing (1) At any time after an originating application for a proceeding is filed— (a) any party may apply to the court for a hearing about an order or directions about the proceeding (a directions hearing); or (b) the court may order the parties to attend a directions hearing. (2) Without limiting subrule (1), a party may apply for, or the court may on its own initiative make or give, 1 or both of the following— (a) an order about a preliminary point that may wholly or substantially decide a significant issue in the proceeding; (b) an order or direction about the conduct of the proceeding, not provided for in these rules or under an Act, including an order about 1 or more of the following— (i) identifying and separating or making an early decision about the issues in dispute; (ii) filing and serving statements of evidence; (iii) filing and serving outlines of intended argument; (iv) disclosure by delivery or production of documents or delivery of interrogatories; (v) a court-supervised settlement conference; (vi) a hearing date. (3) The application must be filed and served on each other party to the proceeding at least 5 business days before the date set for hearing the application. (4) If the application is for an order mentioned in subrule (2)(a), a party wishing to make submissions on the application must file with the registrar and serve on each other party the following documents— (a) any affidavit on which the party intends to rely; (b) a short outline of the party’s intended argument. -- 4 of 16 -- 5 (5) The affidavit and outline of argument must be filed and served at least 2 business days before the application is heard. The Decision of the Land Court [9] The Land Court member held that the issue raised by paragraph 3(b)(ii) of the defence was capable of being treated as a preliminary point that might decide an issue in the proceeding. He held that it might “wholly or at least substantially” decide that issue. He also found the issue to be “significant”, though he also found it not to be more significant than other issues in the proceeding. [10] He further found that a determination of the issue would not be “determinative or nearly so of the whole case”. Nevertheless, he considered that it was “still open for consideration as ‘a significant issue’ in respect of which a separate determination has been requested”. He stated that a separate determination of the issues “may be more realistic where there is a question of law or where the facts are agreed”. He considered that the determination would not narrow the issues, but would merely remove one of them. He considered that there was no reasonable prospect that the separate determination of the validity issue would save any time and expense, and there were disadvantages of fragmentation of the case. His Honour considered whether there was a prospect of a finding relating to the credit of a witness to be called both on the validity issue and on other issues. He regarded this consideration as not of great significance, on the ground that the evidence of the witness, was at best, marginally relevant to the validity issue. [11] A submission had been made in the Land Court that “it would be better to have two (or more) large but manageable trials rather than a single indeterminable and unmanageable one”. With reference to that submission, the learned member made observations about the management of large trials and the responsibilities of the parties and the court in relation to them. Contentions of the parties [12] The submissions made on behalf of BMA may be summarised as follows: (a) the learned member wrongly imposed as a threshold to be crossed before the discretion under r 19 of the LC Rules can be exercised, a requirement that the issue to be determined separately be of decisive importance for the proceedings; (b) the learned member erred in finding that there would be no saving of time if the validity issue was determined separately from, and in advance of, the other issues in the compensation application; (c) the learned member erred in holding that the issue identified in paragraph 3(b)(ii) of the defence would incorporate (and would therefore be included in the question for separate determination) the issue raised in paragraph 3(b)(iii) of the defence; (d) in taking into account the absence of agreement about the relevant facts, the learned member erred, because he took into account a consideration which was irrelevant to the exercise of his discretion; and (e) the learned member, in taking into account considerations of case management in the event that there was a single hearing for the compensation application, either erred by taking into account an irrelevant consideration; or he erred by failing to take into account a -- 5 of 16 -- 6 relevant consideration, namely, that case management principles could apply to the determination of the separate question, as well as to the later determination of the balance of the issues. [13] Cherwell Creek’s submissions may be summarised as follows: (a) the learned member did not impose a threshold requirement in considering whether the determination of the validity issue would be decisive. Rather, he did so in the course of deciding how the discretion should be exercised; (b) the learned member was correct to find that there would be no saving in time and cost if the validity issue were determined separately and in advance of the balance of the issues raised in the compensation claim; (c) the incorporation of paragraph 3(b)(iii) into the question for which a separate determination was sought played no role in the learned member’s reasoning when it came to exercising the discretion; and (d) it was relevant for the learned member to consider whether there was an agreed statement of facts. [14] Each side made submissions about the manner in which discretion should be exercised afresh, if there were occasion to do so. Relevant principles [15] BMA accepted that its appeal was against the exercise of a discretion, and accordingly, subject to the principles stated in House v The King.2 Since the Land Court’s decision involved a matter of practice and procedure, BMA accepted that the appeal faced “formidable obstacles”: see The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd.3 As was pointed out on behalf of Cherwell Creek, this Court has previously accepted the applicability of the principles relating to an appeal against an exercise of discretion by the Land Court.4 Indeed, it may fairly be said that the submissions of both parties were drawn against the background of these principles. Separate question not decisive of claim [16] For BMA, it was said that the learned member regarded it as a condition of the exercise of discretion to order a separate determination of the validity issue, that the issue be decisive. Reliance was placed on paragraphs [55] and [59] of the Land Court’s reasons for judgment. [17] The submissions made on behalf of BMA do not, however, correctly reflect the manner in which the learned member proceeded. Having earlier set out the relevant extract from r 19 of the LC Rules, he first addressed the condition identified in r 19(2)(a). As noted, he concluded that the validity issue was “capable of being treated as a preliminary point that may decide an issue in the proceeding”; and that it was “significant”. It is clear, therefore, that he was conscious that the rule itself included a condition, to which he applied his mind; and that he was satisfied the condition was met. Having reached that point, and having expressed the view that 2 (1935) 55 CLR 499, 504-505; see also Norbis v Norbis (1986) 161 CLR 513, 518-519. 3 (2008) QCA 224, [5]. 4 BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd [2009] QLAC 5, [30]; Anson Holdings Pty Ltd v Wallace & Anor [2010] QLAC 2, [23]; De Tournouer v Department of Natural Resources and Water [2009] QLAC 6, [16]. -- 6 of 16 -- 7 determination of the validity issue would not be “determinative or nearly so of the whole case”, he nevertheless regarded this issue as “still open for consideration … (for a separate determination)”. He then considered matters relevant to the decision whether to make the order sought. His reliance on the point that determination of the validity issue would not determine the whole case was simply part of the manner by which he came to a conclusion about how the discretion should be exercised. It was neither a condition necessary to be fulfilled, nor a threshold to be crossed, before the discretion arose. [18] Not surprisingly, it has been recognised that, on an application for an order for the early determination of an issue, the question whether that determination is, or is likely to be, decisive of the whole of the proceedings is of some significance.5 The learned member did not err by taking it into account when deciding how the discretion should be exercised. [19] BMA has not demonstrated that the Land Court member erred in the way he dealt with the fact that the determination of the validity issue would not be decisive of the compensation claim. Desirability of separate determination [20] For BMA, reference was made to the following passage from Re Multiplex Constructions Pty Ltd:6 It is true that deciding the question of construction here would not ‘settle the litigation between the parties’, to adopt a phrase from the decision of Warrington J in Lewis v Green [1905] 2 Ch 340 at 344 relied on below by the present appellant. But, whatever the position may have been in England in 1905, that is certainly not the correct approach now either under O 64 r 1A or under O 39 r 12. In both cases judges have a wide discretion permitted by those rules to decide questions. There are often questions in a dispute the decision of which, whilst it may not necessarily resolve the whole dispute, may nevertheless lead to its resolution, in a way which results in considerable savings in time and cost, often for reasons which are neither strictly legal nor logical. It is therefore desirable that, whenever possible, judges should decide summarily questions which can be conveniently so decided. [21] BMA also referred to a statement by Thomas JA in Heerey v Criminal Justice Commission7 where his Honour noted the change of approach between Evans Deakin Industries Ltd v Commonwealth8 and Re Multiplex Constructions. It is apparent that in Evans Deakin Industries, a significantly greater reluctance was shown for making an order for an early determination of an issue, though the Court pointed out that that was not itself a statement of principle. 5 See Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130, 141-142; Michael Wilson and Partners Ltd v Nicholls [2008] NSWSC 501, [25]; see also AWB Ltd v Cole (No 2) (2006) 233 ALR 453, [36]-[37]. 6 [1999] 1 Qd R 287, 288. 7 [2001] 2 Qd R 610, 621. 8 [1983] 1 Qd R 40, 45. -- 7 of 16 -- 8 [22] While Re Multiplex Constructions makes it clear that an issue may be determined in advance of the balance of the issues in a case even where that issue is not decisive, and provides encouragement for this course, it by no means mandates it. The course is simply identified as “desirable”, and the discretion is recognised as wide. It cannot be said that Re Multiplex Constructions has the consequence that the discretion miscarried because the learned member decided not to order that the issue raised by paragraph 3(b)(ii) be determined in advance of the rest of the case. Moreover, the learned member referred to Re Multiplex Constructions on at least two occasions in his reasons (on one occasion citing a relevant passage from the reasons). It is difficult to conclude that he was unaware of the view expressed in it, or that he did not take it into account. A saving in time? [23] For BMA, it was submitted that the Land Court erred in concluding that there would be no saving of time from an early determination of the preliminary issue. It was submitted that if the validity issue were determined in favour of Cherwell Creek, it would then be unnecessary to consider the matters raised by the particulars of this allegation in the defence. It was submitted that the Land Court erred in failing to take into account the resultant saving of time. [24] It is apparent that the factual matters raised by the particulars may well be extensive. This appears to have been accepted by Cherwell Creek. However, it was pointed out, as has been mentioned, that the same particulars were provided of other allegations in the defence which were not intended to be dealt with in advance of the remainder of the compensation claim. [25] BMA’s response was, in effect, that while the particulars raised the same topics in respect of all of these allegations, in fact, they fell for consideration at different points in time. For the validity issue, the relevant times appear to be unspecified times between 1994 and about 2008; whereas for the other allegations, the relevant times are particularised as May 2008 and December 2009. [26] These submissions make it appropriate to set out further parts of paragraph 7 of BMA’s defence; as well as the relevant particulars in full. Paragraph 7 of the Defence 7. As to the allegations in paragraph 12 of Annexure A - (a) Whether or not the Amending Act was enacted - (i) the applicant would not have been granted, and the Minister would have refused, MDL 364; (ii) accordingly, the applicant would not have applied for approval for the extraction of a bulk sample commencing in the first quarter 2009 or at all; Relevant Particulars Paragraph 3(b)(ii) of the Defence 3. As to paragraph 3(b)(ii) of the Defence, the Respondents say that the particulars are those set out under paragraph 3(b)(iii) of the Defence (the heading for which will in due course be amended to read ‘Particulars of (ii) and (iii)’). -- 8 of 16 -- 9 Paragraph 3(b)(iii)(B) of the Defence 4. As to paragraph 3(b)(iii)(B) of the Defence, the Respondents say that the particulars are those set out in paragraphs 3(b)(iii)(B)-(C) of the Defence. Paragraph 3(b)(iii)(C)(iii) of the Defence 5. As to paragraph 3(b)(iii)(C)(iii) of the Defence, the Respondents say that: (a) operational aspects, safety aspects and financial aspects of the activities conducted by the Respondents on the Special Lease and the Mining Lease would be impaired, disturbed and prejudicially affected and: (i) as to the operational aspects of the activities that would be impaired, disturbed and prejudicially affected, they rely on the matters referred to in paragraphs 5.1 (save for the first sentence thereof), 5.2 and to 5.3, and paragraphs 5.8 to 5.10 of their submissions to the Minister for Natural Resources and Mines dated 18 March 2002 (the ‘Submissions’); (ii) as to the safety aspects of the activities that would be impaired, disturbed and prejudicially affected, they rely on the matters referred to in paragraphs 5.3 to 5.7 of the Submissions; (iii) as to the financial aspects of the activities that would be impaired, disturbed and prejudicially affected, they rely on the matters referred to in paragraphs 5.1 (save for the first sentence thereof), 5.2 and to 5.3, and paragraphs 5.8 to 5.10 of the Submissions; (b) the grant of EPC 545 impaired, disturbed and prejudicially affected their rights under the Special Lease by displacing their legal right (under the Special Lease) to refuse the Applicant entry to the area common to both EPC 545 and the Special Lease. Paragraph 3(b)(iv) of the Defence 6. As to paragraph 3(b)(iv) of the Defence, the Respondents say that the Land Court would, in accordance with its obligation to do so, have considered each of the matters in section 269(4) of the MRA in determining not to recommend to the Minister that an application for a mining lease be granted. Paragraph 3(b)(v) of the Defence 7. As to paragraph 3(b)(v) of the Defence, the Respondents say that: (a) the Minister would, in accordance with his obligation to do so, have considered each of the matters in section 271(1) of the MRA in not granting a mining lease in whole or in part to the Applicant; (b) otherwise, the best particulars they can give until the completion of interlocutory steps are that it is to be inferred -- 9 of 16 -- 10 from the Minister's Second Reading Speech that a mining lease would not have been granted in whole or in part. Paragraph 7(a)(i) of the Defence 8. As to paragraph 7(a)(i) of the Defence, the best particulars the Respondents can give until the completion of interlocutory steps are to repeat and rely upon paragraphs 2(c)and 3(b) of the Defence, and the particulars of those paragraphs. Paragraph 7(a)(ii) of the Defence 9. As to paragraph 7(a)(ii) of the Defence, the best particulars the Respondents can give until the completion of interlocutory steps are to repeat and rely upon paragraphs 2(c), 3(b) and 7(a)(i) of the Defence, and the particulars of those paragraphs. [27] The following is taken from the Submission by Central Queensland Coal Associates dated 18 March 2002, referred to in the Particulars. 5.0 Operational, safety and financial considerations lead to the inevitable conclusion that genuine field exploration and mining operations cannot co-exist over the same land while under separate ownership, and it is inconceivable that a successor mining tenure to EPC 545 would be granted. 5.1 In the unlikely event that there is any recoverable coal on EPC 545, such coal would be in small quantities and not economic to mine. Moreover, any attempt to mine any such areas would cause massive disturbance to Peak Downs Mine and materially adversely affect the value of that Mine and consequential return to the State. As stated previously, Peak Downs Mine produces some 7.5 million tonnes of coking coal per annum (the forecast for the current financial year is 7.6 million tonnes) of which some 7.25 million tonnes is shipped to export markets, producing FOB revenues in excess of A$600 million. This translates into a yearly return to the State of Queensland of royalties of some $41 million, Port charges of $8.2 million and rail freight charges in excess of $39 million. Additionally, more than 500 people are employed at Peak Downs Mine full time. The establishment and expansion of Peak Downs Mine has also contributed significantly to the creation and development of the township of Moranbah, which houses virtually all full time employees of the mine. The existing prosperity of Moranbah Township is directly related to the continuance of the current level of operations at Peak Downs Mine. 5.2 Around 40% of Peak Downs mine product comes from the northern half of the Mine and it is this 40% of production which would be severely disrupted by a third party conducting exploration activities or mining on the Special Lease. In this regard, CQCA again draws the Minister's attention to the objectives of the MRA, in particular section 2(e), which provides ‘to ensure an appropriate financial -- 10 of 16 -- 11 return to the State from mining’. The need to protect this mining operation has been recognised by the DNRM in the Matheson Memo [Attachment J], the Dickie Memo [Attachment K] and also in correspondence from Minister McGrady [Attachments L and M] and in the Minister's correspondence of 8 May 2001 [Attachment E]. 5.3 The Minister needs to carefully consider the potential interference with and resulting impact (including safety impact) of the renewal of the EPC adjacent to and overlapping with a large operating mine and its infrastructure. It must be understood that this infrastructure, particularly the haul roads and the reject stockpile, is integral to the continued efficient operation of Peak Downs Mine. Exploration activities could not be allowed to occur in an uncontrolled manner, because in such circumstances this would present uncontrolled and unacceptable risk in the active areas of the mine. These risks would be particularly high wherever there was interaction of exploration equipment and personnel with the large and mobile heavy equipment of Peak Downs Mine. Travelling through the mine to access exploration areas in itself compounds the risks because of the frequency factors. 5.4 As mentioned in paragraph 5.3, granting a renewal of (the) EPC with the possibility of an active exploration programme could well lead to safety risks and may also be inconsistent with CQCA's obligations under the CMSHA and the regulations made thereunder. 5.5 As the Minister is no doubt aware, the CMSHA imposes a range of health and safety obligations upon a range of persons in respect of ‘coal mines’. Relevantly, s 9 of the CMSHA defines a coal mine as including the following places: (a) a place where ‘on site activities’ are carried on within the boundaries of the land the subject of a mining tenure; (b) a place where on site activities are carried on on land adjoining, adjacent to, or contiguous with, the boundaries of land the subject of a mining tenure and within which is a place mentioned in paragraph (a); and (c) a place where on site activities are carried on unlawfully because land at the place is not the subject of a mining tenure. ‘On site activities’ are defined widely as activities carried on principally for, or in connection with, exploring for or winning coal. It is submitted that the infrastructure and activities conducted by CQCA’s appointed manager and operator on the Special Lease fall within the definition of a ‘coal mine’, -- 11 of 16 -- 12 regardless of whether or not a mining lease is in force in respect of that infrastructure. 5.6 Further the CMSHA imposes health and safety obligations upon a range of persons in respect of those activities, including the following:  Any coal mine worker ‘or other person at a coal mine or a person who may affect the safety and health of others at a coal mine’ must comply with the Act and any procedures applying to the worker or person that are part of the safety and health management system for the mine.  Any coal mine worker or ‘other person at a coal mine’ has an obligation to carry out activities in a way that does not expose the worker or person or someone else to an unacceptable level of risk and to comply with instructions given for safety and health of persons by the coal mine operator or Site Senior Executive ("SSE") for the mine or a supervisor at the mine.  The coal mine operator for a coal mine has an obligation to ensure that the risk to coal mine workers while at the operator's mine is at an acceptable level including by providing and maintaining a place of work and plant in a safe state.  The SSE has an obligation to ensure the risk to persons from coal mining operations is at an acceptable level and to develop and implement a safety and health management system for the mine. Consequently, it is submitted that while CCC or any of its agents or employees are within any place where activities are carried on by CQCA's manager and operator for, or in connection with, exploring for or mining coal, they would be required to comply with the safety systems in place for Peak Downs and to comply with the directions of the Peak Downs Mine coal mine operator or SSE in conducting their activities on that location. 5.7 If the Minister were to grant a renewal of EPC 545, it is submitted that CCC would be conducting ‘on site activities’ and would also be bound by the obligations under the CMSHA. Therefore, there would obligations imposed on both CCC and the Peak Downs Mine coal operator in relation to the health and safety of persons within the area of EPC 545. However, given the nature and extent of the Peak Downs Mine operations, the primary obligation for safety would have to reside with the SSE of the Peak Downs Mine. The CMSHA does not contemplate nor consequently deal with the situation of overlapping tenements which effectively create two ‘coal mines’ for the purposes of the CMSHA over one area of land where there is no geographic separation. In particular, the CMSHA does not deal with which safety system is to take priority in those circumstances. -- 12 of 16 -- 13 5.8 It is further submitted that renewal of EPC 545 as intended by the Minister is also inconsistent with CQCA's ownership of the reject coal. Clause 16 of Part III of the CQCA Agreement Act previously required the CQCA companies to stockpile wash plant reject coal, and other coal discarded during beneficiation, and make it available to the State at cost for use in State power stations if requested. The reject coal was therefore required to be separately stockpiled, and in order to meet the requirement of maximising the resources in ML 1775, the reject had to be located on the Special Lease rather than ML 1775. 5.9 In 1997, Clauses 15 and 16 of Part III of the CQCA Agreement Act were amended. The explanatory notes to the amending Act noted that ‘Crown Law advice indicates the reject material is the property of the CQOA Companies.’ [Attachment AB]. It is clear, therefore, that CQCA now owns the stockpiled reject coal. 5.10 CQCA is concerned that granting an exploration permit over an area the surface of which contains large stockpiles of coal owned by CQCA may cloud the exercise of its ownership rights in respect of those stockpiles. CQCA has concerns as to whether the exploration permit may purport to enable CCC to exercise rights (for instance, sampling and prospecting) in relation to CQCA stockpiles of coal. 5.11 Based on these difficulties it is clear EPC 545 should not be renewed. Further, even if the EPC is renewed, that renewal cannot ultimately lead to the grant of a mining lease. This fact is recognised within the DNRM with respect to the area of the existing Peak Downs Mine infrastructure in both the Matheson Memo and Dickie Memo [Attachments J and K]. Therefore, if the Minister were to grant the renewal of EPC 545 as he has indicated, he would be ignoring consistent advice from senior DNRM officers and also the objectives of the MRA which have been highlighted. [28] It is apparent from a perusal of these particulars that they are not themselves time- specific. In other words, although they are initially raised in respect of the scope of the delegation said to have been exercised in 1994, they refer to events which are not confined to that time. Thus, BMA’s case in which they seek to demonstrate the grant of the EPC was outside the scope of the delegation depends upon a consideration of BMA’s mining operations over a period of time up to the present (and into the future).9 [29] The amount of interference alleged by BMA would arise not from the original grant, but from the exercise of rights pursuant to that grant. It is somewhat unlikely that the question would be considered hypothetically, without reference to what is known to have happened. It is by no means obvious that evidence relevant to the particulars provided for the validity issue would not also be relevant by virtue of the particulars provided for the issues raised by paragraphs 7(a)(i) and (vi) of the 9 See the reference to “continued efficient operation of Peak Downs mine” in Particular 5.3. -- 13 of 16 -- 14 defence. It is therefore difficult to see that a separate determination of the validity issue would have resulted in any significant saving in time. [30] BMA’s submissions to the Land Court refer to the allegation made by Cherwell Creek that, if the EPC had not been validly granted, then a fresh permit would be granted; and say that if the validity issue were determined in Cherwell Creek’s favour, it would be unnecessary to determine Cherwell Creek’s alternative allegation. The submission was not the subject of detailed elaboration. It seems likely that many of the matters raised by BMA to establish the invalidity of the grant of EPC 545, or in relation to the prospect that Cherwell Creek would have been able to “commercialise” the coal resource, would be equally relevant to the question whether a fresh permit would have been granted. The point advanced on behalf of BMA was that the matters would have to be considered at different times, but for the reasons already expressed, that does not appear to be so. [31] On more than one occasion, the Land Court member expressed the view that a separate determination of the validity issue would not shorten the litigation, without reference to the considerations which led to that conclusion. However, on one occasion, he stated that, if the validity issue were determined adversely to Cherwell Creek, that would not truncate the case. That is explicable by reference to BMA’s written submissions in chief, which are to the effect that a determination of the validity issue adverse to Cherwell Creek might determine the entire proceeding; and accordingly vast amounts of time would be saved. In view of that, it is by no means clear that his Honour’s other statements that a determination of the validity issue would not save time were made without considering the effect of a determination of the validity issue in favour of Cherwell Creek. [32] On balance, BMA has failed to establish that the learned member erred in failing to find that a preliminary determination of the validity issue would have resulted in a saving in time and cost; or in failing to take into account the effect of a determination of the validity issue in favour of Cherwell Creek. Reference to paragraph 3(b)(iii) of defence [33] At an early point in his reasons, the learned member appears to have taken the view that an order for the separate determination of the validity issue would be wide enough to include the issue raised by paragraph 3(b)(iii) of the defence. It is common ground that such a conclusion is wrong. [34] However, it has not been shown that that conclusion played any role in the reasoning of the Land Court member, when it came to the exercise of the discretion conferred by r 19. In those circumstances, no relevant error on the part of the learned member has been demonstrated. No agreement as to facts [35] For BMA, it was submitted that the Land Court member erred in taking into account in the exercise of his discretion, the fact that there would be factual disputes to be determined at the preliminary hearing. It was said that this was an irrelevant consideration. BMA’s submissions refer to a passage from Bass v Permanent Trustee Co Ltd10 where, by reference to Jacobson v Ross,11 it was recognised that there may be a necessity for the judicial determination of facts to enable the preliminary determination of an issue in a case. 10 (1999) 198 CLR 334, [53]. 11 [1995] 1 VR 337, 341. -- 14 of 16 -- 15 [36] One of the matters considered by the learned member in determining whether to order the separate determination of the validity issue was the fact that there had been no agreement about the relevant facts. He noted that such an agreement would make the separate determination of the issue “more attractive”. [37] Ultimately, BMA’s submission was that this consideration was irrelevant. That is not demonstrated by reference to authority which recognises that judicial determination of facts may be necessary to enable the separate determination of an issue. On the other hand, as has been pointed out on behalf of Cherwell Creek, there are a number of authorities where this consideration has been recognised as relevant.12 One reason why this consideration is relevant is that, where there is a lack of agreement about the facts, there is an increased risk of an appeal from the preliminary determination. That, in turn, carries with it the risk of delay, potentially negating the savings said to result from the preliminary determination. [38] It has not been established that the Land Court member erred in taking into account the absence of agreement about facts, in exercising the discretion conferred by r 19. Case management issue [39] It will be recalled that the learned member made reference to this issue in the course of his discussion of a submission made on behalf of BMA, that absent a separate determination of the validity issue, there would be a “single interminable and unmanageable” trial of the compensation application. For BMA it is submitted that either the prospect of case management was irrelevant to the exercise of the discretion; or, if it was relevant, it should also have been taken into account when considering the consequences of making an order for the separate determination of the validity issue. [40] The submission fails to recognise the question being addressed by the learned member. It was not, at this point of his reasons, whether there was some advantage in making the order for separate determination. Rather, it was in response to the submission made on behalf of BMA about a trial, absent that determination. The learned member did no more than reject the submission that the refusal of BMA’s application would result in a “single interminable and unmanageable” trial, by pointing out ways of avoiding that result. That does not result in an error in the exercise of the learned member’s discretion. Exercise of discretion afresh [41] In view of the conclusions which have been reached on BMA’s submissions in support of the appeal, it is unnecessary to deal with this matter. 12 Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495, [8]; AWB Ltd v Cole (No 2) (2006) 233 ALR 453, [39]; Matrix Film Investment One Pty Ltd & Ors v Alameda Films LLC and Anor [2007] NSWSC 523, [14], [15]. -- 15 of 16 -- 16 Conclusion [42] It has not been established that the Land Court member erred in exercising his discretion to refuse BMA’s application for a separate determination of the validity issue. BMA’s appeal should be dismissed. ORDER Appeal dismissed. Peter Lyons J CAC MacDonald President of the Land Court WL Cochrane Member of the Land Court -- 16 of 16 --