Nearly fourteen years ago, New Acland Coal Pty Ltd (“NAC”) applied for additional mining leases under the Mineral Resources Act 1989 (Qld) (“MRA”), and for an amendment to its existing environmental authority under the Environmental Protection Act 1994 (Qld) (“EPA”), to expand its open-cut coal mine near Oakey on the Darling Downs in Queensland, in what NAC described as its Stage 3 expansion (“the Applications”).
History of Litigation:
Objectors included the Oakey Coal Action Alliance Inc. (“OCAA”), representing over sixty key landholders. The Land Court (Member Smith) recommended the Applications be refused.
NAC applied to the Supreme Court for judicial review on the grounds that the Member’s recommendations contained errors in law and were affected by apprehended bias.
Bowskill J found substantive errors of law. Significantly, Her Honour did not find that the recommendations were affected by apprehended bias.
The absence of apprehended bias informed Bowskill J’s decision to remit the matter back to the Land Court for a fresh hearing, with qualified orders that the Land Court proceed on the basis on several of the matters concluded in the first Land Court hearing, so as to prevent a ‘lengthy and costly’ re-hearing of concluded matters.
The reconstituted land court (Kingham P) recommended NAC’s applications for mining leases and amendment to its environmental authority be approved subject to conditions concerning noise.
The existence of Kingham P's new recommendations and the Chief Executive’s decision were brought to the Court of Appeal’s attention before the hearing of the appeal and cross-appeal.
OCAA appealed Bowskill J’s decision that the recommendations made by Member Smith were affected by errors of law. By way of cross-appeal, NAC sought to challenge the finding of Bowskill J that the recommendation to refuse the Applications were not affected by apprehended bias on the part of Member Smith.
In the Court of Appeal, Sofronoff P (with whom Philippides JA and Burns J agreed) found:
1. Member Smith’s recommendations were affected by apprehended bias; and
2. Bowskill J was correct in Her finding that Member Smith’s recommendations were affected by errors of law.
Despite these findings, the Court of Appeal resolved that setting aside Bowskill J’s qualified orders lacked utility, because the orders were already spent in the rehearing by Kingham P. The Court of Appeal held it was not open to them to interfere with the final orders made by President Kingham or with the decision.
OCAA obtained special leave to appeal to the High Court.
The ultimate question in the High Court appeal give the accepted finding of apprehended bias was whether it was open to the Court of Appeal to make their consequential order limited to a declaration that procedural fairness was not observed, rather than referring the entirety of the matters to which the recommendations related back to the Land Court for full reconsideration.
OCAA submitted the new recommendations made by Kingham P were administrative decisions of an inferior court. Being based in part on the findings and conclusions of Member Smith, Kingham P’s recommendation to grant the Applications was affected by the same apprehended bias the Court of Appeal found affected the initial recommendations. For this reason, OCAA argued the orders ought to be set aside and the Applications refused.
NAC accepted that Kingham P’s recommendations were affected by the same apprehended bias the Court of Appeal found affected the recommendations by Member Smith. Nevertheless, NAC contended the Court of Appeal was correct to treat the recommendation and decision by the Chief Executive as ‘valid’ and ‘binding’ because:
· the recommendations were sufficient to satisfy the condition precedent component of the statutory processes required in the Land Court’s exercise of its jurisdiction; and
· the present circumstances (i.e. extensive litigation history) invited the High Court to exercise its discretion to uphold the Court of Appeal’s refusal to set aside the already executed qualified order of Bowskill J.
NAC submitted the matter ought not be referred back to the Land Court for another potentially lengthy and costly hearing.
The HCA held that Kingham P’s new recommendations did not have any legal consequences by force of the orders of Bowskill J. The High Court referred to the established principle that ‘a thing done in the purported but invalid exercise of power [is] a nullity in the sense that it lacks the legal force it purports to have’.
The HCA provided two justifications:
1. Despite being orders of a superior court, the qualified orders could not authorise the Land Court to exceed its jurisdiction.
The High Court maintained that the source of the power for Bowskill J’s qualified order was s 30(1) of the JRA. Wide though the discretionary power conferred by s 30(1)(b) of the JRA to attach directions to the order for referral back to the Land Court is, the power does not extend to authorise a decision-maker to proceed in a manner inconsistent with the state that governs the making of the decision referred back for further consideration. The Court of appeal ought to have set aside the orders under appeal, as an incident of the appeal.
2. The Land Court’s exercise of jurisdiction is only enlivened by its compliance with implicit and explicit conditions of the statutory processes by which its recommendations to the Minister are required to be produced.
The administering authority must comply with the express and implied conditions of the statutory process. The implied statutory process is that the Land Court observe procedural fairness in conducting a hearing and in making its recommendations. Kingham P was required to reconsider the Applications based on Member Smith’s conclusions. Since Member Smith’s conclusions - on which Kingham P’s recommendations were based - lacked procedural fairness, the entire remitted ‘stepped-decision process’, and resultant decision to grant NAC’s application for amendment of the environmental authority was beyond the jurisdiction of the Land Court.
Significance for Legal Practitioners:
A decision of an inferior court that is one step removed from apprehended bias (i.e. involving an invalid condition precedent) is a decision lacking in procedural fairness. This placed the decision beyond its statutory jurisdiction, rendering it a legal nullity. Particular attention must be paid to procedural fairness – otherwise parties risk exposing themselves to lengthy and expensive litigation of matters.
This case note was prepared with thanks to Sarah Gough.
For the full decision: https://eresources.hcourt.gov.au/showCase/2021/HCA/2
You can also listen to this case note on my podcast "Veritas" available through Goodgle Podcasts, Spotify, Breaker, PocketCasts, RadioPublic and AnchorFM:
 Oakey Coal Action Alliance Inc. v New Acland Coal Pty Ltd  HCA 2, 21  per Edelman J.  Judicial Review Act 1991 (Qld) ss. 20 and 21; New Acland Coal Pty Ltd v Smith (2018) 230 LGERA 88.  Oakey Coal Action Alliance Inc. v New Acland Coal Pty Ltd  HCA 2, 8  per Kiefel CJ, Bell, Gageler, and Keane JJ.  Ibid, 5 .  Oakey Coal Action Alliance Inc. v New Acland Coal Pty Ltd  HCA 2, 5 – per Kiefel CJ, Bell, Gageler, and Keane JJ.  Oakey Coal Action Alliance Inc. v New Acland Coal Pty Ltd (2019) 2 QR 271, 308–310 –.  Ibid, 315 .  Oakey Coal Action Alliance Inc. v New Acland Coal Pty Ltd  HCA 2, 3  per Kiefel CJ, Bell, Gageler, and Keane JJ.  Ibid, 8 .  New South Wales v Kable (2013) 252 CLR 118 at 138-139 , citing Forsyth, “The Metaphysic of Nullity: Invalidity, Conceptual Reasoning and the Rule of Law", in Forsyth and Hare (eds), The Golden Metwand and the Crooked Cord (1998) 141, esp. at 147-148.  Judicial Review Act 1991 (Qld).  Oakey Coal Action Alliance Inc. v New Acland Coal Pty Ltd  HCA 2, 12  per Kiefel CJ, Bell, Gageler, and Keane JJ , p. 12.  Ibid, 15 .  Environmental Protection Act 1994 (Qld) Part 5, Chapter 5; Mineral Resources Act 1989 (Qld).  Oakey Coal Action Alliance Inc. v New Acland Coal Pty Ltd  HCA 2, 32  per Edelman J.