Land and Environment Court New South Wales Medium Neutral Citation: Lord v Broken Hill Cobalt Project Pty Limited [2023] NSWLEC 70 Hearing dates: On the papers Date of orders: 07 July 2023 Decision date: 07 July 2023 Jurisdiction: Class 8 Before: Duggan J Decision: See paragraphs 33 and 34 Catchwords: JUDICIAL REVIEW – s 155 of Mining Act 1992 (NSW) – remitter from Court of Appeal – scope of remitter – remitted to consider and determine the question of quantification of the compensation payable Legislation Cited: Mining Act 1992 (NSW) Cases Cited: Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271 David Anthony Lord v Broken Hill Cobalt Project Pty Limited [2021] NSWLEC 126 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1 Category: Procedural rulings Parties: David Anthony Lord (First Applicant) David Anthony Lord as representative of the estate of the Late John Montgomery Lord (Second Applicant) Broken Hill Cobalt Project Pty Limited (First Respondent) Cobalt Blue Holdings Limited (Second Respondent) Representation: Counsel: P Lane (Applicants) J Reid (Respondents) Solicitors: Harris Freidman Lawyers (Applicants) Lander & Rogers (Respondents) File Number(s): 2021/256624 Publication restriction: No Judgment 1. These proceedings relate to an appeal from a determination of an arbitrator in respect of a land access arrangement pursuant to s 155 of the Mining Act 1992 (NSW) (Mining Act). The determination of that matter was made on 12 November 2021 in David Anthony Lord v Broken Hill Cobalt Project Pty Limited [2021] NSWLEC 126 (Lord No 1). The facts of the matter are identified in Lord No 1 and I adopt them (together with the defined terms) without repetition here. 2. Since the determination of Lord No 1 Mr John Montgomery Lord has died. His son, who was one of the former Applicants in the proceedings is the representative of his father's estate. Accordingly, I granted leave for the proceedings to be restyled as related to the identity of the Applicants as: David Anthony Lord and David Anthony Lord as representative of the estate of the Late John Montgomery Lord. 3. The Respondents in Lord No 1 appealed that decision to the Court of Appeal on a number of grounds. The Court of Appeal determined that appeal in Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271 (Cobalt Appeal). In that appeal the Respondents' appeal was allowed in part and as a consequence the Court ordered: (1) Appeal allowed in part. (2) Remit the matter to Duggan J on the question of quantification of the compensation payable by the appellants for the compensable losses identified at [43] and [44]-[46] of the primary judgment. … 1. The paragraphs referred to in Order 2 of the Cobalt Appeal relevantly related to the following paragraphs of Lord No 1: 43. The mere fact of the presence of people and vehicles on the Land for 7 days per week for a number of years provides an intrusion that would not be experienced but for the Prospecting Operations. This intrusion will require the Applicants to consider the presence of these persons and the activities in all aspects of their use of the balance of the Land. The mustering of their flock, the movement of stock through paddocks, the travelling along the access tracks within the Land and the capacity to make other management decisions relating to the use of the Land as a whole will be impacted during the term of the Access Arrangement. This is a loss that cannot be measured by time spent in the handling of stock as it goes well beyond that action. The interference to management and influence upon management decisions is, in the circumstances of this case, a loss capable of comprising compensable loss within the heads of loss in s 262 as it is consequential upon the deprivation of the possession or of the use of the surface of land or any part of the surface, together with the loss being consequential on the disturbance of or interference with, stock. These management considerations are likely losses within the meaning of the definition in s 262 and, therefore, comprise a compensable loss for which compensation must be determined. 44. Further, I accept the Applicants' submissions based upon the evidence, that it is inherent in the carrying out of the Prospecting Operations that there will be damage to the surface of the Land. Such damage arises from the disturbance to the surface of the Land and the vegetation upon it. Such disturbances include, but are not limited to, the drilling platforms and the existing and proposed use of access tracks. 45. It is accepted that these disturbed areas of land will ultimately be rehabilitated to the satisfaction of the relevant regulatory authority, however, from the period of the commencement of access until completion of the rehabilitation there will be a lengthy period where the damage will be present. The rehabilitation of such areas after the Prospecting Operations have been completed does provide an end date to the damage but does not preclude a finding that such damage has occurred and that such damage may comprise a non-financial loss for which the Applicants are entitled to compensation. Such compensation relates to the actual period of occupation by Cobalt on the Applicants' Land. 46. In the circumstances of this case the evidence is that the Land is fragile. It is subject to erosion and its vegetation is sparse. That is the context within which the Prospecting Operations will occur and exemplifies the fact that the damage sustained to the Land during the period of access is not compensated for in the determination of financial losses which relate solely to the inability for the sheep to graze those areas during access. Accordingly, I find that there is the additional head of compensable loss for such damage relating to disturbed areas and consequential disturbance caused by the clearing and use of such areas. 1. Consequent upon the determination of the Cobalt Appeal I listed the matter before me for mention on 9 March 2023 to facilitate the determination of the remitter. At that mention the Respondents submitted that the remitter was not limited solely to the requirement for the giving of reasons with respect to the paragraphs referred to in Order 2 of the Cobalt Appeal but rather permitted the Court upon remitter to consider and determine the question of quantification of the compensation payable. 2. Leave was granted to the Respondents to provide written submissions as to this contention, with consequential directions providing for a response by the Applicants. The parties provided such submissions, the last of which were filed on 21 April 2023. The parties agreed that the issue could be determined on the basis of the written submissions, and I will do so here. Scope of Remitter Respondents' submissions 1. The Respondents submit that the scope of the remitter is not limited to providing further reasons and permits the Court to further consider and determine the question of quantification of the compensation payable by the Respondents. 2. Relevant considerations where the scope of a remitter is in question, were canvassed by the Court of Appeal in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1. There, Basten JA, with whom Beazley and Young JJA agreed, made the following observations, among others: 1. The starting point in considering the nature of an order of remittal from the Court of Appeal "is the statutory conferral of power": at [19]; 2. The next question which arises is "the identity of the 'matter' which is the subject of the remitter": at [29]; 3. It is commonplace for orders of remittal to be made without indication to the court below as to how it should proceed to determine a matter, otherwise than 'according to law', a phrase which undoubtedly includes the conclusions of the appellate court as to the applicable law: at [33]; 4. Where the terms of the order are unclear "it is appropriate to have regard to the judgment constituting the reasons for the order": at [37]; and 5. In considering the intended scope of a remitter, a material consideration will often be the nature of the matter in dispute: at [38]. 1. The order of remittal made by the Court of Appeal in the Cobalt Appeal is expressed clearly, and readily enables the 'matter' and scope of the remitter to be identified, that is the consideration and determination of the "quantification of compensation payable by the [respondents] for the compensable losses identified at [43] and [44]-[46] of the primary judgment". The order does not constrain the Land and Environment Court, on remitter, to providing further reasons alone. 2. The Respondents do not accept that the terms of the order are unclear. In the event that the Court was not minded to agree with that proposition, when regard is had to the judgment constituting the reasons for the remittal order, the scope of the remitter is intended to permit a determination of the quantification of the compensation payable rather than being limited to giving reasons for the earlier quantification. So much is clear from the following findings and observations of the Court of Appeal: 1. That it was impossible to know how much of the lump sum was referable to impacts on management and how much to inherent damage, let alone how each was quantified: at [114]; 2. That there was nothing to suggest how the ultimate figure was reached, by reference to Mr Ivey's calculations or otherwise, and to the extent that the compensation for impacts on management related to additional work to be done by existing farm employees or their diversion from other tasks there might well be a question as to how to quantify that loss: at [115]; 3. That there was no evidence relating to the loss caused by "inherent damage" to the land: at [139]; 4. That "the matter should be remitted on the determination of the compensation payable for additional aspects of compensable loss identified by the primary judge" and that "(t)he [Respondents] will no doubt have the opportunity there to address the calculation of those amounts": at [155]; 5. Referring to the Land and Environment Court's "judicial task on the remittal of the matter when considering any further submissions and providing further reasons for that or any other conclusion that her Honour might then reach as to the compensation amount": at [168]; 6. That any deficiencies in the reasons "can be rectified by the remittal of the matter to the primary judge for further consideration and provision of additional reasons": at [169]; and 7. That it is "undesirable that the issue of compensation for compensable loss remain unresolved": at [170]. 1. Having regard to the language of the Order and the Court of Appeal's reasons, the quantification of the compensation payable is to be further considered and determined, with further reasons to be given for the conclusion that a lump sum amount is appropriate compensation or for any other conclusion that the Land and Environment Court may reach as to the compensation payable. Applicants' submissions 1. The Applicants say that the scope of the remitter is to require the Court to provide reasons for the conclusions reached in respect of the compensable losses identified at [43] and [44]-[46] of the Court's determination in Lord No 1 is a matter of interpretation of Order 2 made by the Court of Appeal (the Order). 2. This result is reached by the interpretation of the Order in accordance with the ordinary rules of interpretation, having regard to the context provided by the reasons of the Court of Appeal. 3. The Order require remitter to this Court of a question: the "quantification of certain compensable losses". With remitter, the question is as to the 'matter' remitted. In the Orders, 'matter' must mean 'proceedings' as the Order then further specifies the particular aspect of the matter that is the subject of the remitter. It is specific and confined. 4. The reference to the "matters identified at [43] and [44]-[46] of the primary judgment" is descriptive only. The Order for remitter does not require "determination in accordance with the decision of the Court" or "according to law". The identified error was the failure to give reasons for certain conclusions in relation to the matters identified in the specified paragraphs. 5. Those considerations suggest that the remitter was made on a limited basis – that of the Court providing further articulation of the reasoning underpinning its conclusions. 6. When considered in the light of the relevant contextual matters, the scope of the remitter is confined to the requirement to provide reasons for the determination. 7. The relevant contextual matters are: 1. The determination was not set aside, and there was no direction for reconsideration or redetermination of the quantum of the compensation payable; 2. The sole basis on which the Appeal was allowed was the deficiency of reasoning in respect of the conclusions identified in the specified paragraphs; and 3. The Court of Appeal did not accept that the remitter should be to a different judge. 1. These contextual matters suggest that the scope of remitter was limited to giving reasons, as otherwise the Orders would have either set aside the determination or given some direction such as 'reconsideration' or 'further hearing'. 2. The effect of the Order was to correct a particular identified deficiency in the reasons for determination of the Court. The Respondents seek to go beyond the purpose of the Order to assert a reopening of argument, and re-determination of the quantum of the compensation payable. The Applicants say that the purpose of efficient determination of disputes suggests that the narrow ground for review identified by the Court of Appeal ought not to be broadened as it adds further delay and cost to the process, particularly if the Court is equipped with all the relevant material on which to provide those further reasons. 3. The Respondents argue that the effect of the order is to require reconsideration of the determination so far as it concerns the specified losses. This flaw in their reasoning is exposed in paragraph 9 of the Respondents' submissions. They seek a determination of the quantum of the compensation payable. That determination has already been made and has not been set aside. They say (at paragraph 10) that their view of the remitter is that quantification is to be further considered and determined, irrespective of the existing determination. 4. The identified deficiency of reasons for the existing determination is met by the Court giving those reasons, not by reopening argument on any matter going to the substantive determination of the quantum of the compensation payable. 5. The Respondents' submissions on the use of 'findings and observations' as contextual material (paragraph 9) are misplaced: 1. [114]-[115] of the Cobalt Appeal deals with absence of reasoning having regard to the evidence. The Respondents failed on their "no evidence" ground. The reasoning specifically referred to the fact that "nothing turns on this point until the primary judge's reasoning process has been more fully articulated": at [139] of the Cobalt Appeal; 2. The Respondents' reference to [139] is really reagitating the "no evidence" point on which the Respondents failed on appeal; 3. The Court of Appeal's general observations about the procedural aspects of any remitter (at [155] and [168] of the Cobalt Appeal) need to be considered in the light of the remitter actually ordered. It is for this Court to determine the procedure on remitter and whether any further assistance is required by way of submissions from the parties; and 4. The reference at [170] of the Cobalt Appeal "the issue of compensation for compensable loss" is not a general direction to redetermine compensation. It reflects the conclusion of the Court that the determination of compensation should stand, but that the "issue" of compensation would not be settled until adequate reasons were given. 1. The Respondents do not refer in any depth to the critical passages in the Cobalt Appeal at [116] and [169]: [116] … However, it is difficult in the absence of further reasons to understand how the calculation of compensation for those aspects of the compensable loss has been carried out; and I do not accept that it was sufficient for her Honour to nominate a global figure without explaining how it was reached. I accept that the primary judge made reference to the matters that had been taken into account in that regard (see at [53]) but the difficulty remains that it is not possible to ascertain how those matters resulted in the calculation of the lump sum figure for those aspects of compensable loss. In those circumstances, ground 6 has been made good. … [169] Rather, any deficiencies in the reasons of the primary judge can be rectified by the remittal of the matter to the primary judge for further consideration and the provision of additional reasons. [citations omitted] 1. Those paragraphs set out the nub of the Court of Appeal's reasoning and make clear that the essential deficiency to be rectified was the adequacy of reasons. 2. The Court should now take under consideration the evidence and produce reasons for the conclusions expressed in the specified paragraphs without requiring further argument or submission. Findings 1. From the reasons in the Cobalt Appeal there is no doubt that the remitter anticipated that reasons would be given by me as to the determination of the compensation I ordered. Such is plain from the fact that the Court of Appeal upheld the appeal with respect to Ground 6 which was in the following terms: Ground 6 – Adequacy of reasons Together with the Court's determination of that ground at [102]-[116] and in particular that part of [116] where the Court determined (emphasis added): …However, it is difficult in the absence of further reasons to understand how the calculation of compensation for those aspects of the compensable loss has been carried out; and I do not accept that it was sufficient for her Honour to nominate a global figure without explaining how it was reached. I accept that the primary judge made reference to the matters that had been taken into account in that regard (see at [53]) but the difficulty remains that it is not possible to ascertain how those matters resulted in the calculation of the lump sum figure for those aspects of compensable loss. In those circumstances, ground 6 has been made good. And at [169] of the Cobalt Appeal where it was observed (emphasis added and citations omitted): Bearing in mind that the issue on which the matter is to be remitted is as to adequacy of reasons and the caution with which the discretion to remit a matter to a different judge is to be exercised, I am of the view that the matter should not be remitted to a different judge. Rather, any deficiencies in the reasons of the primary judge can be rectified by the remittal of the matter to the primary judge for further consideration and the provision of additional reasons…. 1. This was the only ground upon which the Cobalt Appeal was upheld and must be the ground to which Order 1 on the Cobalt Appeal (above) relates. 2. If the Court of Appeal had anticipated that the remitter would be limited to merely the giving of reasons it could have formulated an order that reflected such limitation, it did not do so. Instead, Order 2 is formulated in a broader scope of the question of quantification of the compensation payable. Whilst no other ground of appeal was upheld the Court did observe at [155] of the Cobalt Appeal (emphasis added): In the circumstances, in my opinion there was no denial of procedural fairness (and ground 3 is not made good) but in any event nothing turns on this given the conclusion reached in relation to ground 6, namely that the matter should be remitted on the determination of the compensation payable for the additional aspects of compensable loss identified by the primary judge. The appellants will no doubt have the opportunity there to address the calculation of those amounts. 1. For those reasons, and accepting that, as was submitted by the Applicants at [21(3)] above, that it was for me to determine the manner in which the remitter is to be conducted, I consider that the scope of the remitter is sufficiently broad as to permit me to consider submissions relating to the quantification of the compensation payable for the heads of compensation identified in the paragraphs of Lord No 1 specified in Order 2 of the Cobalt Appeal. 2. Accordingly, it is appropriate that I permit and make directions for the filing of further submissions limited to the quantification of the compensation payable on that limited basis. 3. The Applicants indicated that they may wish to seek leave to adduce further evidence relating to quantification. No application has been made. If and when such application is made it will be dealt with. Accordingly, I will make a direction to provide a timeframe for the making of any such application so as to permit the final disposal of this matter in a timely manner. Conclusion and orders 1. For the reasons set out above, I accept the submissions of the Respondents that the remitter does permit the making of further submissions as to the quantification of the compensation payable in the paragraphs nominated in Order 2 of the Cobalt Appeal. To permit such submissions to be made it is necessary to make directions to facilitate the finalisation of the proceedings on the remitter. 2. The Court directs that: 1. Any application to rely upon further evidence on the remitter is to be filed and served within 7 days of the publication of this judgment and is to be made returnable for a one-hour hearing at 9am on 27 July 2023; 2. If no application as referred to in (1) above is made: 1. The Respondents are to file and serve written submissions relating to the quantification of the compensation payable by the appellants for the compensable losses identified at [43] and [44]-[46] of Lord No 1 by 28 July 2023; 2. The Applicants are to file and serve written submissions relating to the quantification of the compensation payable by the appellants for the compensable losses identified at [43] and [44]-[46] of Lord No 1 by 11 August 2023; 3. The Respondents are to file and serve any written submissions in reply by 18 August 2023; and 4. Unless otherwise ordered by the Court the remitter will be determined upon the papers. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2023