Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Maules Creek Coal Pty Ltd (No 2) [2023] NSWLEC 97 Hearing dates: 18 September 2023 Date of orders: 19 September 2023 Decision date: 19 September 2023 Jurisdiction: Class 5 Before: Pritchard J Decision: The Court orders: (1) The defendant's application pursuant to s 5F(3)(b) of the Criminal Appeal Act 1912 (NSW) that Pritchard J certify that the judgment given on 15 September 2023 dismissing the defendant's application that Pritchard J recuse herself from hearing these proceedings is a proper one for determination on appeal is dismissed. (2) The defendant's application for a stay of the proceedings pending the determination by the Court of Criminal Appeal of the Court of Criminal Appeal proceedings as filed on 15 September 2023, or pending the withdrawal or discontinuance of the said Court of Criminal Appeal proceedings is dismissed. Catchwords: PRACTICE AND PROCEDURE – application to trial judge to certify recusal decision as a proper one for determination on appeal – whether recusal decision is an "interlocutory judgment or order" within meaning of s 5F(3) of the Criminal Appeal Act 1912 (NSW) – application for stay of proceedings pending determination of appeal of recusal decision to the Court of Criminal Appeal – applications dismissed. Legislation Cited: Criminal Appeal Act 1912 (NSW) s 5F Supreme Court Act 1970 (NSW) s 101 Cases Cited: Agius v R (2011) 80 NSWLR 486; [2011] NSWCCA 119 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Barton v Walker [1979] 2 NSWLR 740 Chamoun v Director of Public Prosecutions (NSW) [2018] NSWCCA 182 Environment Protection Authority v Riverina (Australia) Pty Ltd (No 2) [2014] NSWLEC 191 House v King (1936) 55 CLR 499; [1936] HCA 40 KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249 Macdonald v R (2016) 93 NSWLR 736; [2016] NSWCCA 306 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Osborne v R [2014] NSWCCA 17 Pellegrino v Director of Public Prosecutions (Cth) (2008) 71 NSWLR 96; [2008] NSWCCA 17 Polsen v Harrison [2021] NSWCA 23 R v Alexandroaia (1995) 81 A Crim R 286 R v Rogerson (1990) 45 A Crim R 253 Texts Cited: Nil Category: Procedural rulings Parties: Environment Protection Authority (Prosecutor) Maules Creek Coal Pty Ltd (Defendant) Representation: Counsel: C Leggat SC, A Garsia, G Marsden (Prosecutor) T Howard SC, J Lee (Defendant) Solicitors: Legal Services Branch, Environment Protection Authority (Prosecutor) King & Wood Mallesons (Defendant) File Number(s): 2021/234554; 2021/234556; 2021/234557; 2021/234558 Publication restriction: Nil Ex-TEMPORE JUDGMENT The applications before the Court 1. Submissions were made by both the prosecutor and the defendant yesterday, Monday, 18 September 2023 in relation to two matters in these Class 5 proceedings: 1. an application foreshadowed by the defendant on Friday, 15 September 2023 that pursuant to s 5F(3)(b) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) I certify that the judgment given by me on 15 September 2023 dismissing the defendant's application that I recuse myself from hearing these proceedings is a proper one for determination on appeal (the s 5F(3)(b) certification application); and 2. an application made by the defendant by notice of motion filed Friday, 15 September 2023 and moved on at the resumption of the part-heard hearing yesterday, Monday, 18 September 2023 for a stay of the proceedings pending "the determination by the Court of Criminal Appeal of the Court of Criminal Appeal proceedings as filed on 15 September 2023, or pending the withdrawal or discontinuance of the said Court of Criminal Appeal proceedings" (the stay application). The immediate background to the applications 1. This matter came before the Court on Thursday, 14 September 2023 for a hearing in relation to an application by the defendant, foreshadowed on Monday, 11 September 2023, that I recuse myself from hearing these proceedings "given the circumstances canvassed in Court before [me] on 8 September 2023 relating to [my] meeting with Ms Anna Christie in … chambers during the trial on 3 February 2023" (the recusal application). 2. On Friday, 15 September 2023, at 9:30AM I gave judgment dismissing the recusal application: Environment Protection Authority v Maules Creek Coal Pty Ltd [2023] NSWLEC 94 (the recusal decision). 3. Upon delivery of the recusal decision, the defendant through its senior counsel Mr Howard SC: 1. sought a certificate pursuant to s 5F(3)(b) of the Criminal Appeal Act certifying that the recusal decision is a proper one for determination on appeal; and 2. foreshadowed an application for a stay of the proceedings "pending either the determination or withdrawal or discontinuance of" any such appeal proceedings in the Court of Criminal Appeal in relation to the recusal decision. 1. In relation to the defendant's application on Friday, 15 September 2023 for a certificate pursuant to s 5F(3)(b) of the Criminal Appeal Act, the prosecutor drew attention to: 1. the decision of Chamoun v Director of Public Prosecutions (NSW) [2018] NSWCCA 182 (Chamoun), in which the Court of Criminal Appeal at [10] referred to the authorities which suggest that there is no jurisdiction under s 5F for the Court of Criminal Appeal to entertain an appeal against a judge's refusal to disqualify himself or herself because such a refusal does not constitute an interlocutory order so as to come within the terms of s 5F; 2. the decision of the Court of Appeal in Polsen v Harrison [2021] NSWCA 23 (Polsen) in which the Court interpreted "judgment or order" in s 101 of the Supreme Court Act 1970 (NSW) (Supreme Court Act) to include a decision by a judge on an application for recusal, such that the Court had jurisdiction to consider the application for leave to appeal from the trial judge's refusal of the recusal application; and 3. a recent decision in the Court of Criminal Appeal with citation [2023] NSWCCA 98 subject to a non-publication order which, from its catchwords, seemed to consider whether a recusal decision is amendable to a s 5F appeal (the restricted decision). 1. In circumstances where the parties and the Court did not then have access to the restricted decision, I said: HER HONOUR:… I direct that the proceeding continue on Monday. In the event that any material becomes available to the parties during the course of the day, including available to the Court, I'll have those assisting me make inquiries of the registry. And if the decision, the restricted decision becomes available it will be provided to the parties. Mr Howard in light of what the prosecutor said I really can't make a decision in relation to the s 5F(3) matter. HOWARD: I understand your Honour. HER HONOUR: Yes very well. HOWARD: May it please the Court. Your Honour for what it's worth I'll simply say that we'll certainly consider the matters that have been raised by the prosecutor. The decision of Polsen would seem to make it quite clear that the judgment is, the matter is an application that would be amenable to an appeal, and that the judgment or order of the Court would be, but I do understand the prosecutor having properly raised the decision of Chamoun. We'll have a look at it and consider our position and we entirely understand why your Honour in that circumstance would not wish to certify the matter. HER HONOUR: Yes, in circumstances in which Polsen was handed down in 2021, and…The restricted decision in 2023, it would be appropriate for the parties and the Court to have access to that decision in order to-- HOWARD: Yes. HER HONOUR: --determine the s 5F matter. HOWARD: May it please the Court. 1. It appears that on Friday, 15 September 2023, after the delivery of the recusal decision, the defendant filed a notice of appeal to the Court of Criminal Appeal in relation to the recusal decision. The ground of appeal was articulated by the defendant as follows: The trial judge erred in dismissing the defendant's application that her Honour recuse herself from hearing the proceedings. The trial judge ought to have recused herself from hearing the proceedings on the grounds of apprehended bias. 1. Also on Friday, 15 September 2023, the defendant filed a notice of motion in this Court seeking a stay of the proceedings "pending the determination by the Court of Criminal Appeal of the Court of Criminal Appeal proceedings as filed on 15 September 2023, or pending the withdrawal or discontinuance of the said Court of Criminal Appeal proceedings". 2. On Friday, 15 September 2023, my chambers obtained access to the restricted decision and provided a copy of that decision to the parties. The s 5F(3)(b) certification application 1. At the resumption of the hearing on Monday, 18 September 2023, the defendant put to the Court that it understood that I had determined on Friday, 15 September 2023 to refuse to certify the recusal decision as a proper one for determination on appeal pursuant to s 5F(3)(b) of the Criminal Appeal Act. The transcript records as follows: HOWARD: … What I did on Friday was ask whether your Honour would be prepared to certify that the matter would be suitable for an interlocutory appeal under s 5F of the Criminal Appeal Act and your Honour indicated you would not be. HER HONOUR: I didn't say anything about it on the occasion. The record will clearly confirm that. In any event please proceed. HOWARD: Well perhaps I'm mistaken but my recollection of the matter was that when we ask whether your Honour would be prepared to certify the matter, Ms Garsia for the prosecutor drew your Honour's attention to some authorities which the prosecutor relied upon-- HER HONOUR: That's correct. HOWARD: --to suggest that - beg your pardon? HER HONOUR: I said that is correct. Yes, you did. I said nothing on the subject of in the application by yourself in relation to that. HOWARD: No, you did. HER HONOUR: Ms Garsia-- HOWARD: I'm sorry, you did. HER HONOUR: Ms Garsia indicated that there was an authority that she wished to have access to in the course of Friday and access to that restricted decision was provided on Friday. HOWARD: Am I able to tell your Honour what we say the position is? HER HONOUR: Yes please. HOWARD: Your Honour did, contrary to what you've just indicated, after Ms Garsia raised that matter, indicate to me that as a consequence of the matter that Ms Garsia had raised, it really wasn't an appropriate matter to certify. My reaction was I entirely understand your Honour's position. So where the matter was left on Friday was that your Honour indicated that it was not an appropriate matter to certify in light of those matters and that I accepted that… 1. As the transcript discloses, on Friday,15 September 2023, I stated that I "[could]n't make a decision in relation to the s 5F(3) matter" and that "it would be appropriate for the parties and the Court to have access to [the restricted] decision in order to… determine the s 5F matter." Mr Howard later on Monday, 18 September 2023 withdrew his submission in relation to that matter: HOWARD: I stand corrected and I apologise that I got that wrong. On Friday it seemed to me I only needed an indication from your Honour because of course there was quite compelling need for us to move in a prompt way, which we did, so we sought leave to appeal. But I accept without reservation what your Honour's just told me and I withdraw with apology the submission I put to the contrary. 1. Despite the defendant proceeding to file a notice of appeal with the Court of Criminal Appeal on Friday, 15 September 2023, yesterday I invited the parties, having the benefit of receiving access to the restricted decision, to make submissions on the s 5F(3)(b) certification application. I now turn to those submissions. 2. Section 5F of the Criminal Appeal Act provides relevantly in relation to appeals against an interlocutory judgment or order: 5F Appeal against interlocutory judgment or order (1) This section applies to— … (c) proceedings in Class 5 of the Land and Environment Court's jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979 ). … (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings— (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal. (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal. … Construction of "interlocutory judgment or order" in s 5F of the Criminal Appeal Act 1. The parties agreed that the recusal decision is interlocutory in nature. However, the parties made competing submissions as to whether the recusal decision was an "interlocutory judgment or order" within the meaning of s 5F(3) of the Criminal Appeal Act so as to enliven that provision. 2. The prosecutor relied upon Chamoun where Gleeson JA (R Hulme and Button JJ agreeing) noted the preponderance of authority to the effect that a recusal decision is not amenable to an appeal under s 5F: 10. The authorities which suggest that there is no jurisdiction under s 5F for the Court of Criminal Appeal to entertain an appeal against a judge's refusal to disqualify him or herself because such a refusal does not constitute an interlocutory order so as to come within the terms of s 5F, include: R v Rogerson (1990) 45 A Crim R 253 at 255 (Gleeson CJ, Wood and Brownie JJ agreeing); R v Reid [2004] NSWCCA 301; (2004) 148 A Crim R 425 at [12]-[15] (Spigelman CJ, Wood CJ at CL and Howie J agreeing); Gurung v R [2012] NSWCCA 201 at [41] (McClellan CJ at CL, Garling J agreeing; contra McCallum J at [57]). … 12. Even assuming, contrary to the authorities referred to above, that her Honour's refusal to accede to the application that she should disqualify herself is an interlocutory judgment or order in respect of which an appeal would lie with leave under s 5F of the Criminal Appeal Act, this is a case in which leave to appeal should be refused, essentially for the same reasons as given by the Court of Appeal for dismissing the application for judicial review in Chamoun (CA). 1. The prosecutor accepted that the decision in Polsen reflected a different view in relation to whether a recusal decision constitutes an "interlocutory judgment or order", but in the context of appeals to the Court of Appeal pursuant to s 101 of the Supreme Court Act. The prosecutor submitted that if Polsen was the correct authority in relation to s 5F of the Criminal Appeal Act, the Court of Criminal Appeal ought to have overruled Chamoun when it had the opportunity to do so in 2023 in the restricted decision. 2. The defendant relied upon Polsen in which the Court of Appeal considered whether the refusal by the trial judge to recuse herself was an "interlocutory judgment or order" pursuant to s 101 of the Supreme Court Act. The Court held at [42] that the reasoning in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 meant that there was "no basis for construing the phrase "judgment or order" in s 101 of the Supreme Court Act as not including a judgment or order determining a recusal application, whether such an application is made by formal notice of motion or not". The defendant submitted that in the earliest of the line of decisions cited in Chamoun, being R v Rogerson (1990) 45 A Crim R 253 (Rogerson), the Court determined that a decision made by a judge refusing to recuse himself or herself was not a judgment or order within the meaning of s 5F. However, in Rogerson the Court was following the decision of Barton v Walker [1979] 2 NSWLR 740, which the Court in Polsen considered to have been overruled. 3. There appears to be a tension between the 2018 decision of the Court of Criminal Appeal in Chamoun in relation to s 5F of the Criminal Appeal Act and the 2021 decision of the Court of Appeal in Polsen in relation to s 101 of the Supreme Court Act concerning the meaning of "judgment or order" in the context of recusal applications. 4. I do not need here to resolve the question of the construction of "interlocutory judgment or order" in s 5F of the Criminal Appeal Act. That is because in the exercise of my discretion to certify the recusal decision as "a proper one for determination on appeal", I decline to exercise such discretion. Exercise of discretion to certify the recusal decision 1. In relation to the question of whether I should exercise my discretion to certify that the recusal decision "is a proper one for determination on appeal", the prosecutor relied upon a number of other authorities, including: 1. Pellegrino v Director of Public Prosecutions (Cth) (2008) 71 NSWLR 96; [2008] NSWCCA 17 at [6] and [9], where Basten JA (Hidden and Barr JJ agreeing) said that "the power [under s 5F] should be exercised with caution" and that "[t]he power of the trial judge to certify may properly be exercised in circumstances where the appropriateness of an interlocutory appeal is not in doubt and particularly where that factor is combined with lack of opposition" (see also WO v DPP [2009] NSWCCA 275 at [23]); and 2. Osborne v R [2014] NSWCCA 17 at [3], where Basten JA (Hidden J and R Hulme AJ agreeing) indicated that "it is usually preferable for that issue to be determined by this Court, rather than the primary judge, unless there are circumstances known to the primary judge and not revealed in the judgment or order sought to be challenged". 1. In relation to the Court's "very broad discretion" under s 5F, Mr Howard for the defendant said: We accept that if your Honour was in doubt about whether it's an appropriate matter within - that is, if your Honour is in any doubt as to it being a decision which is amenable to a 5F appeal, then your Honour would not certify. If your Honour is not entirely content that the other discretionary considerations in favour of certification would prompt a certification, then your Honour would not certify. Doing the best we can, it's pretty clear to us that your Honour shouldn't certify. 1. In declining to exercise my discretion to certify pursuant to s 5F(3)(b) of the Criminal Appeal Act that the recusal decision is a proper one for determination on appeal, I have regard to the following: 1. that the power under s 5F should be exercised with caution; 2. that the defendant has not pointed to any matter suggesting any appealable error in the recusal decision; and 3. significantly, the undesirability of further fragmenting, and delaying the conclusion of, proceedings which were commenced on 16 August 2021, and adjourned part-heard on 10 February 2023. 1. In any event, having regard to the circumstances that on Friday, 15 September 2023, the defendant proceeded to file a notice of appeal to the Court of Criminal Appeal in relation to the recusal decision, the question of whether I should certify the recusal decision as a proper one for determination on appeal under s 5F of the Criminal Appeal Act no longer arises. The stay application 1. In the stay application, commenced by notice of motion filed on Friday, 15 September 2023 and moved on by the defendant yesterday, Monday 18 September 2023, the defendant seeks the following orders: 1. The proceedings are stayed pending the determination by the Court of Criminal Appeal of the Court of Criminal Appeal proceedings as filed on 15 September 2023, or pending the withdrawal or discontinuance of the said Court of Criminal Appeal proceedings. 2. Upon the determination, or withdrawal, or discontinuance, of the said Court of Criminal Appeal proceedings, the parties are to promptly approach this Court to seek a relisting of the proceedings for directions. 1. The principles in relation to granting a stay application were stated in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 693-695 (Kirby P, Hope and McHugh JJA). Those principles were summarised by Pepper J in Environment Protection Authority v Riverina (Australia) Pty Ltd (No 2) [2014] NSWLEC 191 at [18] in relation to criminal proceedings in Class 5 of the Court's jurisdiction as follows: 18. The principles applicable to the grant of a stay of criminal proceedings in Class 5 of the Court's jurisdiction (other than where a term of imprisonment has been ordered) were recently confirmed in Harris v Harrison [2013] NSWCCA 314 (at [23]-[33]). They are as follows: (a) first, the onus of persuading the Court to grant a stay is on the party seeking the relief (Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694 and Harris at [24]); (b) second, an applicant for a stay of the orders of a trial court pending an appeal to an intermediate appellant court is required to establish a proper basis for a stay that is fair to all parties (Alexander v Cambridge Credit Corp at 694 and Harris at [24]); (c) third, it is not necessary to establish "special" or "exceptional" circumstances (Alexander v Cambridge Credit Corp at 693-694 and Harris at [24]); (d) fourth, a discretionary consideration favouring the grant of a stay is if there is a risk that an appeal will prove hollow if the party succeeds on the appeal but no stay is granted (Alexander v Cambridge Credit Corp at 695 and Harris at [25]); (e) fifth, similarly, if there is a real risk that the appellant will suffer prejudice or damage if the stay is not granted and such prejudice or damage is not able to be addressed by the successful appeal, it is more likely that a stay is warranted (O'Brien v The Australian Securities and Investment Commission [2009] NSWCA 312; (2009) 74 ACSR 324 at [25] and Harris at [25]); and (f) sixth, in determining whether to grant a stay the Court makes a preliminary assessment as to whether the applicant has an arguable case on appeal (Alexander v Cambridge Credit Corp at 695 and Harris at [26]). 1. The prosecutor opposed the defendant's stay application, referring to the Court's inherent power to direct a temporary stay of proceedings "to prevent injustice", "to avoid unfairness" and "to relieve against unfair consequences": Macdonald v R (2016) 93 NSWLR 736; [2016] NSWCCA 306 at [140] (Bathurst CJ, R Hulme and Bellew JJ agreeing). 2. The prosecutor referred to the decision of KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249 (Beazley ACJ, Walton and N Adams JJ), where the Court of Criminal Appeal refused a stay application of the trial pending determination of an application for leave to appeal pursuant to s 5F of the Criminal Appeal Act. 3. The prosecutor, here, submitted that a temporary stay should not be granted to the defendant for the following reasons: 1. there were low prospects of leave for the appeal being granted, particularly in light of the "high bar" to be met by the defendant in satisfying the Court of Criminal Appeal that the recusal decision demonstrates error in accordance with the principles in House v King (1936) 55 CLR 499; [1936] HCA 40 (House v King); and 2. the granting of a temporary stay would not serve to "prevent injustice" or "avoid unfairness", bearing in mind the "undesirability of interrupting criminal proceedings" (Agius v R (2011) 80 NSWLR 486; [2011] NSWCCA 119 at [10] (Johnson J, Tobias AJA and Hall J agreeing)) and "the strong presumption in favour of the correctness of the [recusal] decision" (R v Alexandroaia (1995) 81 A Crim R 286 at 290 (Hunt CJ at CL, Grove and Dunford JJ)). 1. The defendant accepted that the question of whether a stay should be granted is "not a question which...we pretend falls very clearly on our side of the scales", however that "the scales do tip in…favour of a temporary stay" for the following reasons: 1. to prevent, to the fullest extent possible, the parties wasting time and costs, both of their own, and of the Court's, if the appeal of the recusal decision is allowed; and 2. to minimise the further adducing of evidence in the matter, again, if the appeal be allowed. 1. In relation to the concern raised by me in relation to the fragmentation of these criminal proceedings, the defendant submitted that the matter would "on no view" conclude between 18 to 21 September 2023, and, in relation to the further resumption of the matter in November, there was "some force" to the prosecutor's submission, "in the sense that it is a possibility that by reason of there only being the four days in November, it's a bit speculative." 2. In relation to the stay application, I find as follows: 1. the onus is on the defendant to persuade the Court to grant a stay; 2. in the circumstances here, there is no real risk that an appeal would prove hollow if the defendant succeeded on its appeal from the recusal decision, but a stay were not granted; 3. likewise, there is no real risk that the defendant would suffer prejudice or damage if the stay were not granted, any such prejudice or damage being capable of being addressed by a successful appeal; 4. the defendant has failed to identify error in the recusal decision in accordance with the principles in House v King, there being a strong presumption in favour of the recusal decision; 5. there is no suggestion here by the defendant of any injustice or unfair consequences of declining to order a stay; and 6. there is a recognised undesirability in further interrupting or fragmenting criminal proceedings which were commenced on 16 August 2021, adjourned part-heard on 10 February 2023, and listed to recommence on 18 to 21 September 2023 and 13 to 16 November 2023. Orders 1. The Court orders: 1. The defendant's application pursuant to s 5F(3)(b) of the Criminal Appeal Act 1912 (NSW) that Pritchard J certify that the judgment given on 15 September 2023 dismissing the defendant's application that Pritchard J recuse herself from hearing these proceedings is a proper one for determination on appeal is dismissed. 2. The defendant's application for a stay of the proceedings pending the determination by the Court of Criminal Appeal of the Court of Criminal Appeal proceedings as filed on 15 September 2023, or pending the withdrawal or discontinuance of the said Court of Criminal Appeal proceedings is dismissed. ********** 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: 19 September 2023