Land and Environment Court of New South Wales CITATION : Corowa and Ors; Donnelly and Anor. v Donnelly & Anor; Caparicornia Prospecting Pty Ltd [2000] NSWLEC 286 APPLICANTS: Corowa & Ors; Donnelly & Anor. PARTIES : RESPONDENTS: Donnelly and Anor; Capricornia Prospecting Pty Ltd FILE NUMBER(S) : 30236 of 1999; 40243 of 1998 CORAM: Bignold J KEY ISSUES: Practice & Procedure :- Re-opening of concluded proceedings LEGISLATION CITED: CASES CITED: DATES OF HEARING: 19/12/2000 EX TEMPORE 12/19/2000 JUDGMENT DATE : APPLICANTS: Mr A Oshlack, Agent SOLICITORS N/A LEGAL REPRESENTATIVES: 1ST-2ND RESPONDENTS: Ms J Hughes, Solicitor SOLICITORS Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BIGNOLD J 19 December 2000 30236 of 1999 R COROWA & P STANFORD v THE WATER ADMINISTRATION MINISTERIAL CORPORATION & CAPRICORNIA PROSPECTING PTY LIMITED 40243 of 1998 A DONNELLY v CAPRICORNIA PROSPECTING PTY LTD JUDGMENT HIS HONOUR INTRODUCTION 1. This is a Motion to re-open related class 3 and class 4 proceedings which were concluded in this Court on 17 November 2000 when judgment in each case was reserved. The hearings, which followed one another and involved the joint reception of evidence common to both sets of proceedings, occupied some 15 sitting days. 2. The class 3 proceedings involve a reference by the Minister to the Court, under the Water Act, for investigation and report into a water licence application made by the gold mine companies. The proceedings, because of objections raised to the grant of the water licence, came before the Local Land Board in 1998 or 1999 when the chairman of the board referred the matter to the Court without completing the hearing. The matter was not heard by the Court until October and November 2000, notwithstanding the earlier reference in the early stages of which the gold mining companies raised objection to the Court's jurisdiction. 3. The related class 4 proceedings involve a challenge to the decision of the Tenterfield Shire Council to grant development consent for the water licence infrastructure relevant to the water licence. The gold mining companies, notwithstanding the protracted nature of the proceedings under the Water Act initially before the Local Land Board and latterly this Court, nonetheless had the benefit of taking water from Nelson Creek pursuant to water permits granted under the Water Act. Two annual consecutive permits were granted and the last one expired on 2 December this year. 4. The companies have not been producing gold at the gold mine for more than a year and the question of the resumption of mining activities is still up in the air. Nonetheless, the companies are attempting to sell the assets with the view to a resumption of gold mining activity on the existing gold mine and, upon the extension to it and in consequence of that strategy, have pursued their application for the water licence which has been strongly opposed by the Applicants on a number of grounds, including ecological or environmental grounds, most particularly focusing attention upon the alleged deleterious effects likely to be caused by the pumping of water from Nelson Creek on frog populations known to and thought to inhabit the waters of Nelson Creek. 5. At the hearing of the water licence application, a principal issue in dispute concerned the identity of a species of frog found in the environs of the water licence site on Nelson Creek, it being the Applicant's case that the species found was the threatened and endangered species known commonly as peppered frog. A Considerable amount of evidence was adduced at the hearing by the gold mine companies through the testimony of Professor Tyler in particular and by the Applicant through the testimony of Dr Mahoney. 6. Faced with voluminous affidavit evidence of the two undoubted and distinguished experts, the Court directed, in the course of the hearing, that the experts confer, in accordance with the Court's practice for expert evidence, with a view to preparing for the Court a joint report setting forth the heads of agreement and disagreement between the experts. I took this course, being particularly encouraged by the advice from Professor Tyler that he was confident, if he and Dr Mahoney could jointly confer with reference to samples of preserved frogs maintained in the Australian Museum, that the dispute between them as to the appropriate identification of the frogs in question would be readily resolved. Unfortunately, the joint conference failed because the relevant specimen maintained in the Australian Museum was misplaced for reasons unknown. 7. In the result, the hearing concluded without the benefit of the experts conferring and, more particularly, without the benefit of them conferring with reference to the museum specimen. 8. At the end of the day, the Court is left with the diametrically opposed opinions of eminent experts on a matter that, according to Professor Tyler at least, could be readily resolved between the experts if they jointly conferred by reference to the specimen. 9. By Notices of Motion filed in both proceedings in recent days, the Applicants seek, in both proceedings, to re-open the case in the light of the recent discovery by them that the Australian Museum has now and latterly located the missing frog specimen, a matter about which I was informed from the bar table, when the matter first came before me last week, was known and had been known to the gold mining company or its advisers for at least the last month. HIS HONOUR: Do you want to correct that? OSHLACK: Yes, your Honour. HIS HONOUR: You told me that. OSHLACK: I told you that because that was my understanding from Ms Hughes, but I believe it's not a whole month. HIS HONOUR: How long before you found out? OSHLACK: I found out, as in my Affidavit, that when I spoke to the museum they put it about two or three weeks, not the whole month. Ms Hughes might be able to - because that's what she said to me, that's why I raise it-- HIS HONOUR: Ms Hughes, would you like to correct the matter? I had been told that you had known for about a month. HUGHES: From recollection, your Honour, and I'd have to check my notes for sure, it would be about a month. I think it would be 11-12-15 November, a date of that order. HIS HONOUR: Thank you, Ms Hughes. OSHLACK: I just wanted to confirm that. HIS HONOUR: Thank you, Mr Oshlack, for that fair comment. In other words the Respondents and their advisers were aware of the rediscovery of the lost specimen at about the time the case concluded. HUGHES: No, your Honour HIS HONOUR: 17 November, that's-- HUGHES: No, in that case I must be wrong, it was well and truly after the case had concluded. HIS HONOUR: After the case had concluded, it has only been concluded a little more than a month ago. HUGHES: Then in that case, your Honour, I stand corrected, it was about a week after the case concluded. OSHLACK: That fits with what the museum-- HIS HONOUR: Thank you, that's fine. 10. A week after the case had concluded on 17 November 2000 the Applicant became aware of the discovery of the misplaced specimen on 13 December 2000 and moved the Court soon thereafter to re-open the cases. On the hearing of the Motion today, which was opposed by the gold mining companies but was neither opposed nor consented to by the Water Administration Ministerial Corporation, the ambit of the re-opening has been more precisely defined, namely to receive into evidence the Australian Museum's specimen with a view to the Court directing a joint expert conference by reference to the specimen to be conducted by Professor Tyler, on behalf of the gold mining companies, and Dr Mahoney on behalf of the Applicant, with a view to preparing a joint report to the Court in accordance with the Court's Practice Direction in relation to expert evidence and that leave be given to receive into evidence an affidavit sworn by Dr Mahoney on 16 December 2000, together with photographic exhibits and that the parties have the opportunity to advance further submissions to the Court in response to the reception of any additional evidence including the expert joint report. 11. In opposing the application to re-open, Ms Hughes, on behalf of the gold mining companies, has rightly drawn the Court's attention to the proper test to be applied on an application such as the present, namely a decision in all the circumstances by the Court whether the interests of justice are better served by re-opening or refusing the re-opening request. In support of her view that the interests of justice would not be served by the re-opening, Ms Hughes drew attention to the following matters: (1) additional costs would be incurred; (2) additional time would be involved delaying the reserved judgments in the two proceedings; (3) that the evidence, if admitted, would be unlikely to materially affect the decision of the Court in the case in any event; (4) this only applies to Dr Mahoney's Affidavit sworn on 16 December 2000, to allow a re-opening to receive that evidence would be apt to create an adverse litigation precedent of parties being encouraged to prepare for their cases haphazardly or slackly. 12. After hearing argument, I notified the parties that the Court could minimise delay by setting aside a day in the first week of new term, namely 31 January 2001 to hear the re-opened case to its conclusion. I inquired of Ms Hughes whether in these circumstances a delay during the Court vacation, currently under way of judgment in the cases, would cause any unreasonable burden upon her clients and I also inquired of her as to whether Professor Tyler could be made available for the purpose of attending the joint conference with Dr Mahoney and inspecting the museum samples so that their report could be before the Court so that the case, if re-opened, could be concluded in the first week of new term. Upon resumption of the matter this afternoon, Ms Hughes has informed the Court that Professor Tyler would be available to attend Sydney and the museum, for the purpose of conducting the joint conference by reference to the sample, on any day between 15 and 25 January 2001. This would enable any joint report to be prepared and filed in Court on or before the contingently fixed hearing day for the re-opening on 31 January. 13. Ms Hughes, however, maintained her objection to the re-opening of the case pointing out a fact that came up in the evidence in the class 3 case that I have already adverted to, that the gold mining companies are attempting to sell their assets with the view to the mine being resumed and that whilever the cases in this Court remained unresolved that enterprise was prejudiced. She pointed out currently in the Court there are a number of matters which have not been resolved, including these two cases where judgment has been reserved since 17 November and an earlier case heard involving the construction of the mine access road, which has been substantially concluded by Consent Orders albeit with the prospect or potential for the matter to require adjudication by the Court in the event of disagreement between the parties on the nature and extent of the rehabilitation plan that those consent orders contemplate and the fact that in those proceedings, there is an outstanding contempt Motion brought against the companies by the Applicants which has been fixed for hearing in February 2001 14. The fact that the civil enforcement action brought by the Applicant against the companies in relation to the RMT extension has not been concluded this term (and it stands adjourned for completion at the end of March) and the fact that final judgment has not been given in the challenge to the irrigation licence issued by the EPA in terms of which the gold mining companies have been allowed to dispose of treated waste waters by spray irrigation method, all these matters in the state of lack of finality that she has referred to are said, and understandably so, to cause the gold mining company difficulty in its endeavour to sell its assets. Although final judgment in the irrigation case has not yet been delivered, the company has enjoyed the full benefit of the irrigation licence by virtue of the fact that I discharged the interim injunction that I had earlier put in place on 23 August 2000 so that although it awaits judgment, in the meanwhile it has the full benefit of the impugned environmental protection licence variation. In any event, judgment in that matter is likely to be handed down this week. 15. In my opinion, the interests of justice in this case warrant the re-opening sought. In my view, the case against re-opening has not been substantiated. The Court can complete the re-opened case in one day. The amount of time and effort and additional expense likely to be incurred by bringing Professor Tyler to Sydney to undertake an exercise he has already undertaken by himself but not with the benefit of Dr Mahoney, is likely to be small compared with the amount of money that the company has expended on the case. I have said already it occupied fifteen sitting days and the fact that judgment will necessarily be delayed in both cases does not visit the company with any disadvantage that has been demonstrated, save for the fact that the judgments remain outstanding. 16. No interim relief has been obtained against the companies and I have not received any evidence as to the need by the company to extract water from Nelson Creek, indeed the evidence in the other case indicated that the infrastructure is not even operational, the pipelines and the like not operational, and indeed the raw water pond which was the receptacle for the permitted water is occupied by the treated effluent, the subject of the irrigation case. All this suggests that there is no material disadvantage suffered by the company if judgment in the two cases is delayed during the Court vacation, in which time the contemplated evidence for the completion of the case on 31 January 2001 is being garnered. 17. I have already dealt with the question of additional costs, of additional time, which in my view, upon analysis, do not involve material detriment. 18. The proposition has been advanced that the reception of the evidence would not materially affect the judgment in the case. It is, of course, relevant to inquire into the likely impact of the reception of fresh evidence in a case because in a clear case, where the Court can in advance determine that the reception of the evidence would not have a material bearing, obviously the practice of the Court conventionally is not to grant a re-opening. 19. In the present case, I am far from satisfied that the potential of the new evidence would have no material bearing upon the Court's decision. As I have already pointed out, the opposition to the water licence is primarily based upon ecological and environmental consequences alleged by the Applicant to be deleterious when weighed against the interest claimed by the company in obtaining the water licence. I need not go further into the matter other than to say I am by no means satisfied that the potential for the evidence that ultimately comes from the joint report is not likely to be such as to have no bearing upon the outcome of the case. 20. The matter concerning the identity of the frog in question was a crucial issue in the hearing and is likely to play a critical role in the determination of the strength of the Applicant's case that the water licence will involve such significantly adverse environmental consequences as to tilt the scales in favour in support of their objection to the grant of the licence. 21. In so concluding, I also have regard to the fact that the nature of the class 3 proceedings before the Court is a wide ranging one where the Court is asked in effect to advise the Ministerial Corporation on the desirability or otherwise of the granting of the water licence. It is true that the case has been conducted by the parties advancing their own respective interests, but the interests asserted by the Applicant in the protection of threatened or endangered species under the Threatened Species Act obviously raises matters of public interest and the stakes in the class 3 proceedings by no means can be regarded as being legitimately confined to private interest of the parties who have appeared before the Court. 22. In all the circumstances, I grant the application to re-open both cases. I fix 31 January 2001 as the date to receive the additional evidence. 23. I direct the parties through their experts, Professor Tyler and Dr Mahoney, to carry out, in accordance with the Court's practice for expert testimony, joint conference by reference to the relevant samples maintained in the Australian Museum of the frog's exhibit with the view to the joint report being filed in Court on or before 31 January 2001 to enable the re-opened case to be heard and judgment to be delivered therein as soon as is convenient. 24. The question of costs on the Motion is reserved. 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.