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Ashton Coal Operations Pty Ltd v Director General, Department of Environment, Climate Change and Water (No 2) [2011] NSWLEC 116 (7 July 2011)

Last Updated: 13 July 2011

Judgment

Introduction

1. This judgment addresses a Notice of Motion ('NOM') by a witness to set aside the order of two Commissioners of the court rejecting his application to be joined as a party. The Chief Judge directed that it be dealt with by the Duty Judge.
   
2. The substantive class 1 appeal proceedings concern the deemed refusal of an Aboriginal Heritage Impact Permit ('AHIP') under Division 2 of Part 6 (ss 90-90R) of the National Parks and Wildlife Act 1974 (' NPW Act' ), in respect of lands in the Camberwell district, near Singleton.
   
3. An application for an AHIP is deemed to have been refused 60 days after its receipt by the Director General.
   
4. Regulations 80C and 80D of the National Parks and Wildlife Regulation 2009 are in Part 8A of the Regulation, which part came into effect on 1 October 2010. Regulation 80C(5) deals with the registration of Aboriginal persons as " registered aboriginal parties " ('RAPs'). Regulation 80D provides that an application for an AHIP must be accompanied by a cultural heritage assessment report ('CHAR'), dealing with matters prescribed in that regulation. The regulation also envisages that a copy of the application and any CHAR will be sent to RAPs, who will have 28 days to make submissions.
   
5. " Factors to be considered in making determinations regarding permits " are set out in s 90K of the NPW Act . They include compliance with statutory requirements for consultation, and for reporting of the results of consultation, with Aboriginal people. Section 90K(1)(g) puts the relevant requirement in these terms - " whether any such consultation substantially complied with any requirements for consultation set out in the regulations " (emphasis mine).
   
6. The appeal to this court is provided for in s 90L, and the decision on the appeal is binding on the applicant for the AHIP and on the Director General (s 90L(3)). Essentially the appeal in this matter has become a hearing on whether or not the Court should dispose of the appeal by the making of consent orders now agreed upon between the parties.
   
7. On 17 June the Commissioners hearing the present appeal declined to join the witness Scott Franks as a party to the hearing, and he is concerned that, in his absence, there is " no meaningful contradictor " to test the agreement the parties have reached on the AHIP - Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361, per Preston J at [57]. He alleges " a material change of circumstances, and evidence that could not be brought out in his original motion for joinder ", as required by Brimaud v Honeysett Instant Print Pty Ltd ("Brimaud") (1988) 217 ALR 44, at 46; and City of Sydney v Streetscape Projects (Aust) Pty Ltd [2011] NSWSC 363, at [20].
   

Background

8. The chronological order in which relevant events occurred is quite important for present purposes.
   
9. The applicant company (Ashton) received its development consent on 11 October 2002 and it was ultimately modified on 24 December 2010.
   
10. Condition 3.36 of the modified development consent required preparation of an Archaeology and Cultural Heritage Management Plan, in consultation with the local Aboriginal Community and the Department, to the satisfaction of the Director General. At the end of condition 3.37 is a " note " that no Aboriginal archaeological sites shall be disturbed in any way without prior approval of the Director General, under s 90 of the NPW Act . There is a stipulated commitment (schedule C to the consent, item 11.3 at fol 80f) that there will be " no construction within 70m of the Waterhole Site grinding grooves and appropriate controls will ... protect this site from inadvertent construction activity impacts ". Examples are given.
    
11. The application for the AHIP was received in the Department on 29 January 2011, a formal request for further information was made on 28 March 2011, and Ashton responded on 1 April 2011.
    
12. The appeal against deemed refusal of the AHIP was commenced on 21 April 2011, and, on Ashton's motion, the hearing of the appeal was expedited on 13 May.
    
13. A Statement of Facts and Contentions was filed on 26 May 2011, and, on 27 May the court was told that the parties might agree on consent orders.
    
14. The matter came on for hearing on 31 May and 2 June 2011 before Commissioner Pearson and Acting Commissioner Sullivan.
    
15. Scott Franks gave oral evidence on 2 June 2011 . He was one of some six Aboriginal witnesses, and he is a prominent Traditional Owner, who represents, speaks for, and gives evidence on behalf of the Wonnarua people, on a range of Native Title ('NT') and other cultural, archaeological and heritage issues such as those in this case. The parties submit that he was " unconstrained " in giving his evidence and was allowed to stray into submissions on matters of concern to him about the AHIP. Three expert witnesses on those issues gave evidence after Franks, including departmental officer Roger Mehr.
    
16. The hearing of the substantive appeal was adjourned to 7 June for the hearing of submissions, and to allow any refinement of the proposed draft conditions to attach to the AHIP. The respondent's written submissions dated 3 June and Ashton's dated 6 June were filed on 3 and 7 June 2011 respectively.
    
17. On 7 June 2011 , Mr Franks filed a NOM, supported by affidavit and detailed written submissions, seeking to be joined as a party. His duly authorised agent, Mr Oshlack, was not ready to proceed with the argument on the NOM on that day, and the Commissioners heard it on 16 June 2011.
    
18. Also on 16 June, the parties reached agreement upon some consent orders, which they considered would resolve the substantive proceedings.
    
19. In a judgment delivered on 17 June 2011 , joinder of Mr Franks was refused and his NOM dismissed - [2011] NSWLEC 1162. In the present hearing the order under attack is that made in par [57] of that judgment, to the effect that, because the Commissioners decided " this is not a proper case to order the joinder of Mr Franks as a party to the proceedings or to make an order under s 38(2) of the [ Land and Environment Court Act 1979 (' Court Act ')] (often called a Double Bay Marina order), Mr Franks' NOM dated 7 June 2011 should be dismissed.
    
20. On 20 June 2011, the parties handed up the proposed consent orders, dated 16 June, regarding the AHIP, and the Commissioners, apparently having raised some issues for the parties' further consideration, reserved their decision on the question of whether or not the court should make those orders.
    
21. On 22 June 2011 , Mr Franks filed the NOM presently before the court, in which he seeks (1) an order setting aside the Commissioners' decision not to join him as a party, (2) a stay on the Commissioners' delivery of judgment on the consent orders, pending the determination of this NOM, (3) an order that Mr Franks be joined as a party, (4) an order for costs, and (5) leave to issue, in the event that he is joined as a party, subpoenas for Sarah Paddington and Maria Cotter to attend and give evidence on his behalf. (Paddington is an employee of the respondent, and Cotter is apparently an archaeologist with Niche Environmental ). A Double Bay Marina order has not been sought before me, but the NOM could be construed as a fresh application for joinder.
    
22. The 22 June NOM is supported by an affidavit in chief sworn by Mr Franks on 21 June 2011, in which he relies also on his earlier affidavit of 7 June 2011 ( Exhibit F1 in the substantive proceedings). The 21 June affidavit sets out in detail his concerns about what he understands has been put to the Commissioners for approval.
    
23. On 24 June 2011, Ashton filed a " further note addressing matters raised by the court on 20 June 2011 ".
    
24. On 28 June 2011, the 22 June NOM was mentioned before me, and I gave directions in preparation for it to be heard on 30 June. That hearing commenced on 30 June, as scheduled, and continued on 1 and 4 July.
    

How such decisions are challenged or reviewed

25. Appeals against or from decisions of this court are dealt with in part 5 of the Court Act . Appeals are available only to parties, and lie from decisions of Commissioners in class 1 proceedings only on questions of law (ss 56A and 57).
    
26. Mr Franks is not a party to the substantive proceedings, and his NOM acknowledges on its face that the Commissioners' decision on joinder involved an exercise of discretion. Accordingly, even if the joinder NOM is properly regarded as a proceeding in its own right, in which Mr Franks is a " party ", the Commissioners' decision on it must be seen as " final and conclusive " in accordance with s 56 of the Court Act , and not subject to appeal. There is no other statutory provision for it to be reviewed by the court, so Mr Franks' present NOM must be deal with as an application by him to " set aside " the Commissioners' decision, and reopen the court's consideration of his joinder NOM.
    
27. Whereas appeals are the province of statute, applications to set aside or reopen are the province of rules and practice (unless s 46 of the Evidence Act 1995 is engaged which is not the case here). As the Court of Appeal said in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 (at 538B), " such proceedings are well-established in our law. They are independent of the appeal and equitable in origin and nature ". While there is a clear public interest in " finality of litigation ", the court has the power to reopen orders in the " interests of justice ": Sundararajah v Teachers Federation Health Ltd (No 3) [2010] NSWSC 471, at [15] (adopting Brimaud, at 46). The courts have an inherent duty and inherent powers to prevent injustice. In Wentworth v Rogers the ground was fraud, and the Court of Appeal laid down a series of six principles to be applied. Allegations of fraud must be strictly pleaded and put to strict proof. " Mere suspicion ... will not be sufficient... " (538G).
    
28. I can find no authority directly " on point " so far as applications by non-parties are concerned. Most of the authorities concern applications made by parties to reopen substantive proceedings, either before or after judgment has been delivered, and purported " final " orders have been made, and often entered or perfected, on the substantive issues.
    
29. Here, if the court regards the application for joinder as commencing a separate proceeding, it is reasonable to take the view that the same principles, and Uniform Civil Procedure Rules 2005 ('UCPR') 36.15(1) and 36.16(3) should be applied. Those Rules provide as follows:
    

36.15 General power to set aside judgment or order

(cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3)

(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

...

36.16 Further power to set aside or vary judgment or order

(cf SCR Part 40, rule 9)

...

(3) ... the court may set aside or vary any judgment or order except so far as it:

(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or

(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.

...

30. A useful collection of relevant considerations in applications to reopen is contained in Austin J's judgment in Australian Securities and Investment Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587, at [18], and in Fitzgerald P's judgment in R v Pettigrew [1996] QCA 235; [1997] 1 QdR 601, at 606-612.
    
31. Some leading relevant High Court cases on the principles are Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, Smith v New South Wales Bar Association (No 2) [1992] HCA 36; (1992) 176 CLR 256, DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226, and Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218. The NSW Court of Appeal has also considered reopening applications in many important cases, for example, Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13, Haig v Minister Administering National Parks and Wildlife Act 1974 (1994) 85 LGERA 143, and Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; (2008) 75 NSWLR 462.
    
32. In this court several major cases have stated and applied the principles - see, for example, Lloyd J in Woollahra Municipal Council v Ferella [2005] NSWLEC 402; (2005) 141 LGERA 166 and Pittwater Council v Brown Bros Waste Contractors Pty Ltd [2009] NSWLEC 50, Craig J in Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192, Pain J in Michales v Dimoski [2007] NSWLEC 443, and myself in Teoh v Hunters Hill Council & Anor (No 3) ('Teoh') [2009] NSWLEC 121; (2009) 167 LGERA 432, especially at [43]-[60].
    
33. What clearly emerges from all these cases is, as I said in Teoh at [45]:
    

Any power to reopen has been held to be a "limited, special, and wholly exceptional jurisdiction", "not lightly to be exercised", and there must be shown to be "exceptional circumstances", often in the nature of some "unfinished business". The courts will not simply respond to some "undefined feeling that an injustice has occurred which the court must correct".

34. The court must be satisfied that the order challenged was made " improvidently ", or is tainted by an " irregularity ", not necessarily brought about by fraud. ( In re William Bruce (1886) 2 VLR 696).
    

The Commissioners' decision

35. In their judgment on the 7 June NOM, the Commissioners provided (at [3]-[12]) a summary of the background to the AHIP application, and the conduct of the substantive hearing, and noted (at [13]) that Mr Franks had given evidence on the substantive issues. They fairly summarised his position on joinder, the need for further witnesses, and Mr Oshlack's submissions in that regard, as the matter stood as at 16 June 2011 (at [15]-[25]). Ashton opposed Mr Franks's application for joinder, and the respondent neither opposed nor consented. Ashton's evidence and submissions on joinder were summarised at [26]-[36].
    
36. Their judgment proceeded to consider the competing arguments, and relevant authorities, at some length ([37]-[53]). Their comments (at [51]) indicate how clearly they were alive to the concerns Mr Franks had and expressed about the AHIP.
    
37. For completeness I set out pars [51] and [53] of the Commissioners' joinder judgment:
    

51 The Court has had the benefit of hearing detailed oral evidence from Mr Franks, in which he outlined his reasons for stating that the requirements listed in s 90K(1) have not been properly addressed; his response to the draft AHIP, in particular his concerns that the conditions were not sufficiently stringent; and his concerns about whether the requirements in the consultation guidelines had been met. Mr Franks was questioned about his participation in the consultation process, and that of Mr Barry French, one of his field officers. He was also questioned as to whether he had received documents as one of the registered Aboriginal parties in the consultation process, his familiarity with the earlier archaeological studies, and his observations on his visit to the site. Having heard Mr Franks' evidence, including the matters which he raised and the detail with which he gave his evidence, we are not persuaded that he was disadvantaged in the manner in which he was able to do so. The three expert archaeologists referred to earlier gave their expert evidence after, and having heard, Mr Franks' evidence.

...

53 The matters in issue in the proceedings are the matters specified in s 90K(1) of the Act as being matters which must be taken into account in making a decision to grant or refuse an AHIP. The Court must, in accordance with the applicable Practice Direction, be satisfied before making orders by consent, that the making of such orders is both lawful and appropriate. The parties have the obligation to present such evidence as is necessary to allow the Court to make that determination. We have not been able to identify any further evidence or submissions that Mr Franks might call, or make, that would be necessary for us to be able to make a proper and lawful decision. Accordingly, we are not satisfied that this is a proper case to order the joinder of Mr Franks as a party to the proceedings.

38. Having concluded that his joinder was not appropriate, they considered ([54]-[56]) making an order under s 38(2) of the Court Act , and found themselves satisfied that the issues had been " sufficiently addressed ". In [57], as noted above, they dismissed the 7 June NOM.
    
39. I should note at this point that Mr Oshlack's written submissions before me on Mr Franks's behalf include (in par 34) an assertion that par [53] of the judgment (quoted in [37] above) involves an error of law, allegedly because it understates the powers of the court pursuant to ss 38 and 39 of the Court Act , but that submission has not been made good. In any event it would be an appeal point and not germane to the issue presently before me.
    

Evidence

40. Each party to the present debate objected to many elements of the other's evidence, but, as the court must apply an " interests of justice " test to the arguments, I determined to admit it all subject to relevance. Having now concluded my consideration of the questions and materials before the court, I have found all the evidence relevant, even though some is defective, and has been given little weight.
    
41. Ashton filed an affidavit by Jeffrey Peck , its mine surveyor-in-charge at the relevant underground mining project since April 2008. Mr Peck annexed four " drawings " (A-9588/1 to 4), all dated 23 June 2011 , which he says depict the location of relevant features of the subject site, and their relationship with one another. In his oral evidence he told the court he marked the drawings as instructed by his superiors. In his affidavit, he deposes to the sources he searched for his mapping work (including the 2002 archaeological survey prepared by Dan Witter, and cadastral information at Land & Property Information NSW), and to making use of a hand-held GPS unit. It must be noted that Mr Peck's drawings were all prepared and provided after the Commissioners had reserved their decision.
    
42. The respondent filed an affidavit by Gary Davey , its Director - North East Branch (of what is now the Office of Environment and Heritage - 'OEH'), the senior departmental officer relevant to this project, and a master of science in Zoology. It was Davey who determined on 23 May to relieve Paddington of her duties regarding this matter, and to replace her with a fellow OEH Officer, Roger Mehr, rather than with a consultant, Maria Cotter. Davey deposed to Mehr's relevant experience, and dealings with the site. Davey remained unshaken in his view that the AHIP should be granted on the quite specific conditions proposed (notably Nos. 8-12, 14 and 16).
    
43. Mr Franks required both Peck and Davey for cross-examination before me, and filed an affidavit in reply, which he affirmed and filed on 30 June, after I had fixed the NOM for hearing on that day and given directions about evidence and submissions.
    
44. Mr Oshlack also tendered to the court in support of Mr Franks's application:
    

As Exhibit F1 : Two " archaeological assessment " documents, one of 46 pages ( Exhibit F1B ) and one of 58 ( Exhibit F1A ), both authored by Insite Heritage Pty Ltd, both dealing on their face with the proposed diversion of Bowmans Creek, and both bearing the date " October 2009 ". It emerged during submissions that Exhibit F1A was sent to Mr Franks and/or other Aboriginal " parties ", and that Exhibit F1B ("Appendix 11") became Appendix 1 to the Aboriginal CHAR and AHIP application submitted by Ashton to the Department in January 2011 (see Exhibit A3 before me, at fols 34ff).

As Exhibit F2 : " Aboriginal Cultural Heritage Consultation Requirements for Proponents 2010 " (under Part 6 of the NPW Act ). The " Guidelines " document says that the Department requires proponents to have " effective consultation with Aboriginal people as a fundamental component of the AHIP assessment process ", and that those people are to be " the primary determinants of the cultural significance of their heritage ", and " should have the right to directly participate in matters that may affect " it. The consultation process has four main phases - (1) notify identified Aboriginal people (including registered native title claimants or holders), who become RAPs, of the nature and scope of the proposal; (2) gather information so as to understand what might be present in the landscape, and its cultural significance; (3) determine potential impacts and identify strategies proposed to deal with them; and (4) provide to RAPs the draft CHAR for their review and comment. Franks asserts that this process was not followed in this instance.

As Exhibit F3 An Ashton Coal " drawing " dated 16 June 2011, said on its face to depict " Mine Lease 1533, Mine Lease Application 351, and western AHIP boundary " of the " Western Panels AHIP Area ". Mr Oshlack was in some doubt as to whether the document was placed in evidence before the Commissioners, or simply given to him or Franks at the substantive hearing.

45. Ashton tendered before me:
    

As Exhibit A1: A further Ashton Coal " drawing " dated 25 May 2010, said on its face to depict " Ashton Coal Project South east Open Cut Mine Lease Application ".

As Exhibit A2 : A 19-page AHIP document plus two attachments, one of which was a drawing of the AHIP area dated 31 May 2011, and the other a statement of " methodology for the salvage of aboriginal objects ". This document was said to have been Exhibit 4 before the Commissioners, but Mr Oshlack expressed some doubt, and I asked the Commissioners to provide me with their Exhibit 4 (which became Exhibit A4 before me - see below).

As Exhibit A3 : Documents at tab 2 of a large binder of documents tendered to the Commissioners as Exhibit A , or one volume of it. The index to the binder describes the very lengthy document at tab 2 (being fols 8-350 in the binder) as the " Aboriginal Cultural Heritage Assessment Report and AHIP application ". The index to the binder notes that some confidential material has been " extracted and will be provided separately to the Court ". The document itself notes (at fol 8) that it was prepared by Insite Heritage Pty Ltd, A Besant and E Wyatt. It is dated January 2011 and addressed to what was then 'DECCW'. Mr Howard submits that this documentation fulfilled the requirements of s 90A of the NPW Act , subject to further information provided on request. Mr Oshlack submits that it does not meet the requirements of the section.

As Exhibit A4 : The actual Exhibit 4 before the Commissioners, being the AHIP. This exhibit was the document in Exhibit A2 , minus the two attachments. The two 19-page documents would certainly appear identical in text, but the version in Exhibit 4 ( A4 before me) has each page over-stamped " DRAFT ". The particular elements to which I was taken were identified in the two documents. The AHIP document in Exhibits A2 and A4 applies to land located in Part Lot 3 DP 1114623 and Part Lot 2 DP 1089848 in Mining Lease ML 1533, all of which land is depicted in the map attached to Exhibit A2 , but referred to and not attached to the ' draft ' in Exhibit A4 . Both exhibits acknowledge, on p 2 of 19 in item A(iv), that there has already been coal extraction in the subject site and more is planned. " Full extraction of all 4 seams may result in up to 8m subsidence". Proposed "Operational" condition 16 (on p 9 of 19) provides as follows: "The AHIP holder will invite all RAPs to provide any information on the traditional cultural values and/or associations of Aboriginal people with the AHIP area. Detailed recordings, such as maps, photographs and descriptions of local landscape and topography should be collected, collated and reported with the information provided by the RAPs. The information collected and recording during this stage will need to be managed through a culturally appropriate protocol which the AHIP holder is to develop with the RAPs. At the completion of the works permitted under this AHIP, or earlier if appropriate, interpretative material, as endorsed by the RAPs, should be installed to inform the community of the cultural values of the AHIP area ". Mr Oshlack complains that this should have occurred before any works were carried out.

46. Mr Davey conceded in cross-examination that there had been subsidence in the proposed AHIP area, where there are objects of Aboriginal significance, but he is not familiar with all the terms of the development consent which Ashton must obey, and was not aware of any harm caused to any items of Aboriginal interest by Ashton's operations so far. He conceded that Ms Paddington, who reports to him, had expressed some misgivings to him about the proposed AHIP, and that she was a thorough investigator, very familiar with the site, having more experience of the subject site than her colleague, Mr Mehr, whom he assigned to this case in her place. He flatly denied Mr Franks's allegation that he misled the court regarding Ms Paddington's ability to give evidence and that he exerted any pressure on her regarding the matter. In his affidavit, Mr Davey gave evidence about her leave arrangements and her possible availability to represent the Department's views at the hearing.
    
47. Mr Franks relied upon his affidavits of 22 and 30 June and gave oral evidence before me. He satisfied the court of his relevant expertise and experience, he having done CHARs for 15 years, especially in the Hunter's Bowmans Creek area, with which he has strong cultural ties. He was extremely critical of the comprehensiveness and accuracy of the mapping work done by Peck and others, and of Mr Peck's evidence before me. After he had given his evidence before the Commissioners, Mr Franks obtained a Department of Planning map, and he based his complaints before me on that Department's representation of what the development consent actually does, says, and requires.
    
48. A major focus of Mr Franks's second affidavit is a NT claim, lodged by him and Robert Lester on 5 October 2010 , mainly for land known as the Camberwell Common, relevantly part of tribal lands extending to about 2,000 square kilometres. Exhibit A1 is an enlarged copy of the map/diagram attached to the NT claim (as Attachment One). Again Franks argued that Peck's representations of the site and proposal were wrong - the area claimed (and the extra land " earmarked" for possible later NT claim) is understated, MLA 351 and lot 7004 are not identical, and MLA 351 is not completely depicted.
    
49. Mr Franks rejected much of what Davey said about Paddington, and claimed to have " direct personal knowledge " to refute it. His professional relationship with Paddington covered more lands than those involved in the present AHIP. He urged the court not to accept, without challenge, the evidence of three " European archaeologists ". He told the court that Exhibit F3 had been " handed to the Commissioners ".
    
50. After Mr Franks concluded his evidence before me, Mr Howard (for Ashton) tendered Exhibits A3 and A4 (described in [45] above), and Mr Oshlack observed to the Court that Exhibit A3 had not been shown to Mr Franks before (at least not in its entirety), as required by the consultation requirements in Exhibit F2 . He re-called Mr Franks, who responded to cross-examination by Mr Howard by acknowledging that a CD (which he could not open) had been forwarded to him, and a list of its alleged contents faxed to him, presumably including the CHAR and the AHIP application, now in Exhibit A3 . The CD was accompanied by a letter from Besant. Mr Franks had asked Paddington to get him the contents of the CD, but he could not say what they were.
    

Submissions by Mr Franks

51. In support of setting aside the Order of 17 June, Mr Franks argues five main issues (Mr Oshlack's written submissions par 7):
    

(a) The proposed AHIP does not comply with the conditions of consent

(b) The Court was misled in regards to the availability of Ms Sarah Paddington

(c) That Ms Paddington was being placed under pressure not to give evidence which is probative and directly relevant to the Court's decision.

(d) That the Court was misled as regards Mr Franks, (sic) Native title connection to the AHIP area.

(e) That the Court was not being provided with the relevant policy documents

52. Mr Oshlack's written submissions go on to make or expand upon serious allegations against the parties and their legal representatives -
    

(1) that the departmental expert, Sarah Paddington, was " deliberately prevented from testifying by the Respondent ", as she would have given " probative evidence ... why the AHIP should not be issued " (pars 7(b), 7(c), 12, and 14);

(2) that senior counsel for Ashton made a " false " statement to the court (rather than, as the parties claim, a minor mistake in stating an area) about Mr Franks's NT credentials (pars 7(d) and 17); and

(3) that the parties have acted in " bad faith " in (i) jointly seeking consent orders issuing the AHIP when it lacked the required CHAR (pars 22 and 29), and in (ii) arguing that Mr Franks has " no further probative or compelling evidence " that could assist the court (par 30).

53. When one looks beyond some hyperbole in those submissions, Mr Franks's central submission can be put no higher than that he asserts that the Commissioners have been " misinformed ", rather than deceived by fraud, or by the withholding of " facts " from the court (par 11 - citing R v Pettigrew, and In re William Bruce ).
    
54. Mr Oshlack's submissions (pars 19-33) assert that failures by the Department to enforce the requirements of relevant regulations regarding cultural heritage assessment, and to abide by the procedures it lays down in its published consultation guidelines, will infect any AHIP, if made by the court on the present evidence, with legal error. The combined effect of s 90A(2)(b) of the NPW Act and Regulation 80D(1) is to make the submission of a complying CHAR with a complying application for an AHIP a mandatory requirement imposed on an applicant, and so a question of jurisdictional fact. See Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55; (1999) 102 LGERA 52. As the report submitted in this case does not comply with the requirements for a CHAR, the jurisdictional fact is not proven, and the application is, therefore, invalid.
    
55. As I understand the rest of the submissions made by Mr Franks or on his behalf, they are to the following effect:
    
56. As mining has already occurred in the AHIP area, and some damage may have resulted from subsidence as a result, an AHIP cannot have retrospective effect to legalise it.
    
57. As alleged consultation with Mr Franks predated the filing of the application for the AHIP, and involved mainly the Bowmans Creek diversion, it cannot be relied upon now to establish compliance with the consultation requirements. The whole of the AHIP/CHAR documentation was not sent to him, and he, therefore, obviously has not had the prescribed 28 days to respond to it.
    
58. Mr Franks's significance in the local Aboriginal community makes him a crucial party who should be joined in the proceedings, and there are no discretionary considerations sufficient to deny him joinder.
    

Submissions by the Respondent

59. The respondent has played a relatively inactive role in the joinder debate, leaving it for the court to decide on both occasions. Where relevant, it has adopted Ashton's submissions on that matter, but it has been understandably keen to refute the allegations of misconduct and bad faith. Dr Pritchard was unable to be present during the whole of the hearing before me, but she put her position and that of her client in the strongest terms in her opening address, and in some " notes for address " which she handed up. Her instructing solicitor, Mr Bateman, affirmed those submissions in the respondent's closing address.
    
60. The respondent relied primarily on the sworn and tested evidence of its most senior relevant official, Mr Davey, to refute much of what was put against the respondent by Mr Franks and Mr Oshlack, especially their allegations (a) that the court was misled about Paddington's availability, and (b) that she was " under pressure " not to give her evidence, which was probative and directly relevant. Dr Pritchard noted that Mr Franks's evidence did " not go so far as Mr Oshlack's submissions ", especially in terms of " serious allegations of fraud ", and/or of professional misconduct.
    

Submissions by Ashton

61. Mr Lloyd and Mr Howard made extensive written submissions on their client's behalf, and Mr Howard made oral closing submissions. Ashton is most concerned that the substantive proceedings be concluded as soon as possible, it being now almost two months since it satisfied the court of the urgency of its position while coal production is suspended (see written submissions pars 24, and 80).
    
62. The Ashton submissions dealt with Franks's case as it stood prior to the hearing commencing on 30 June, on the basis that his 22 June NOM might be either an attempt to appeal the Commissioners' decision, or a fresh application for joinder. They note that Mr Oshlack's written submissions really called for the application of the UCPR 36.15 and 16. For abundant caution all three options were addressed.
    
63. Ashton rightly submits it cannot be an appeal (see [25]-[26] above).
    
64. Ashton then submits that, if it is a fresh joinder application, it would amount to " abuse of process ", because there has been no relevant change in circumstances since the first joinder application was argued on 16 June. If the court accepts it as a fresh application, and not an abuse of process, Ashton argues it should be dismissed for the same reasons as generally found favour with the Commissioners, other than Ashton's continuing view that the Court of Appeal decision in Tweed Shire Council v Minister Administering Crown Lands Act [1996] NSWSC 423; (1996) 92 LGERA 80 would suggest that the regime for appeals in the NPW Act (s 90L) would oust the application of UCPR 6.24 to add any party other than Ashton and the Department.
    
65. Ashton submits, and I accept, that the appropriate test for joinder under UCPR 6.24(1) is that found in Lord Diplock's judgment in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52, at 55-6, adopted by the Full Federal Court in News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; (1996) 64 FCR 410, at 524, and applied in this court, for example, by Biscoe J in Charlton v Moore [2009] NSWLEC 61, at [2] - an order disposing of the subject matter of the proceedings must have the potential to " directly affect " the joinder applicant's " rights against or liabilities to a party ". Ashton submits that Mr Franks is not such a person.
    
66. The Commissioners chose to afford Mr Franks every opportunity to make his case for joinder on its merits, and ultimately found against him, in their undoubted discretion, albeit leaving some interesting legal points undecided. Ashton addresses some of those points in its submissions (pars 55-68), but Franks did not press them in any way, so I do not consider it appropriate or useful to decide them now.
    
67. Ashton submits that " nothing relevantly has changed " since the Commissioners found joinder was not shown to be necessary in order for the court to make a proper and lawful decision on the AHIP. If, however, the court revisited the question, Ashton would rely, in arguing that the court should refuse joinder on discretionary grounds, on its economic arguments about further delay flowing from joinder at this late stage, and also on the fact that joinder was discussed with Mr Franks before the hearing of the substantive proceedings, and he chose not to seek it until after the evidence had closed.
    
68. If joinder were allowed now, and leave were granted to involve two more expert witnesses, the whole report/conferencing process would have to commence afresh, necessitating further delay, and seriously undermining the expedition order made in May.
    
69. Ashton submits that setting aside a considered judgment must require satisfaction of a more stringent test than the court might apply to an early application for leave to reopen one's case to adduce more evidence.
    
70. There is no need to join or reopen in order for the court to consider the adequacy of the mandatory consultation process, as that matter is already clearly before the Commissioners. The CHAR was clearly before the Department and is now clearly in evidence before the Commissioners, and it notes ( Exhibit A3 , fol 24, item 11) both the objective and subjective significance of the cultural heritage values of the AHIP area, and includes relevant submissions.
    
71. Status as a person who must be consulted does not establish a right or even a potential entitlement to be joined as a party to litigation relevant to the matters which were the subject of the consultation.
    

Consideration

Adequacy of Consultation

72. Mr Franks clearly was, and remains, a significant member of the relevant Aboriginal community, and a NT applicant, and, therefore, entitled to be consulted regarding both the AHIP application and any associated CHAR. The allegation that the Court was misled as to his NT status is clearly refuted by having regard to par [21] of the Commissioners' judgment.
    
73. I am satisfied that he was, indeed consulted, but I am not satisfied that he was adequately consulted, in terms of what is required by the NPW Act and Regulation, and what is envisaged by the published consultation guidelines. Adequacy of that consultation is a matter or consideration for this court on the application for the AHIP, and so is a matter for the Commissioners in the Class 1 appeal, under s 90K(1)(g). Ashton's submissions record that there was expert evidence on compliance, and I know of no reason at law why any earlier consultation on the project itself should not be regarded as satisfying , in part, the requirement of later consultation on the AHIP. The terms of the relevant requirements ([5] above) are clear. It is certainly not a matter for me to decide in determining the present NOM, but Mr Franks gave before me evidence relevant to the adequacy question, which could not have been given before the Commissioners in view of his asserted non-exposure to the relevant documents prior to the tender of Exhibit A3 on 1 July.
    

Joinder

74. The test for joinder is as I set it out above ([65]), and I accept Ashton's submission that Franks does not meet it. What I think about it is, however, not the issue - I have to decide if the Commissioners' judgment on that matter should be set aside in the interests of justice, and I am in no way satisfied that it should.
    
75. As Ashton submitted (par 10), the judgment of the Commissioners consisted of " clearly articulated reasons ", and I find it a judgment of high quality, in which the learned Commissioners thoroughly and fairly assessed all that Mr Oshlack and Mr Franks put before them on the joinder application. Absolutely no error has been established requiring me to intervene - the judgment reached the conclusion clearly dictated by all the relevant authorities.
    
76. There is no evidence whatever that the Commissioners' judgment or order was made irregularly, illegally, or against good faith, or any combination of the three. It was not made " improvidently " ([34] above) No allegation of fraud was clearly particularised, as required, and the applicant for joinder has totally failed to satisfy the six point test prescribed by the Court of Appeal in Wentworth v Rogers . He has also failed to establish any evidentiary foundation whatsoever to support any allegation of bad faith at all.
    

Serious allegations made

77. Allegations that public servants engaged in fraud and that legal representatives misled the court, acted in bad faith, or engaged in other professional misconduct, are extremely serious, and are not mollified by protestations from the bar table that they are " not personal ". Such submissions against public servants and legal professionals are indeed " personal ", and can have serious consequences and implications for them, personally and professionally. These allegations have been shown to be totally unfounded, and do no credit to either Mr Oshlack or his client. I can find not one scintilla of evidence to support them.
    

Mr Franks's 5 grounds

78. In terms of the five " main issues " articulated by Mr Franks (see [51] above), I have already dealt with (b), (c) and (d). So far as (a) is concerned, no inconsistency between the AHIP and the development consent, as both documents appear in the evidentiary materials, has been established. So far as (e) is concerned, the Court clearly does have before it, whether as a tendered exhibit or from the Commissioners' own researches, the " relevant policy documents ", which I would take to be the guidelines for consultation ( Exhibit F2 before me and, it would appear from the exhibit sheet, Exhibit 6 before the Commissioners).
    

Other issues

79. In terms of some other issues raised during argument, I have already indicated my conclusion on the alleged error of law made by the Commissioners in par [53] of their judgment (see [39] above), and on the relevance of all the material received into evidence on the present NOM (see [40] above).
    

Conclusion

80. The inevitable consequence of these findings is that the remainder of the NOM (prayer 1 for short service having been granted by consent earlier), in so far as it still seeks to set aside the judgment and order of the Commissioners (prayer 2), and/or to secure an order for joinder and a consequential grant of leave for subpoenas (prayers 3 and 7), should be dismissed. The order sought for a stay on the Commissioners' judgment on the consent orders (prayer 4) would now be of no utility.
    
81. The two remaining prayers (5 and 6 respectively) deal with " any further order or direction deemed appropriate " and " costs of the motion ".
    
82. I reject Mr Franks's submission that the Commissioners have been " misinformed " (see [53] above), but I am somewhat concerned after hearing this NOM that they may in some respects remained " underinformed ". In that regard, I reject the parties' submission that nothing of significance to the matter before them has occurred since 16 June.
    
83. Mr Franks gave his evidence before the parties agreed on consent orders. The Commissioners expressed the need for more information on 20 June. The materials placed before the Court by Mr Peck also came into existence after the Commissioners reserved their decision. Those materials could be of some use to them in reaching their decision, and Mr Franks has expressed some informed views on that material (in both his affidavit of 30 June and his oral evidence before me).
    
84. I am of the opinion that the interests of justice dictate that the hearing of the substantive matter should be reopened to enable the Commissioners to consider these reasons and the evidence which was placed before me, and to enable Mr Franks to give the Commissioners some further evidence in regard to those issues.
    
85. As the matter must now be remitted to the Commissioners for further consideration in any event, they can give whatever directions they deem appropriate to bring the matter back before them for these purposes, and proceed to conclude their consideration of the appeal and the suggested consent orders as expeditiously as possible.
    
86. So far as the question of costs is concerned, it is clear that the parties and Mr Franks would have incurred significant costs as a consequence of Mr Franks's NOM. As requested by Ashton, I will formally reserve the question.
    

Orders

87. The orders of the Court will, therefore, be:
    
    • (1) Prayers 1 and 4 of the Notice of Motion of Scott Franks dated 22 June 2011 are discharged.
      
    • (2) Prayers 2, 3 and 7 of the Notice of Motion are dismissed.
      
    • (3) The costs of the Notice of Motion are reserved.
      
    • (4) The hearing is reopened on the limited basis described in these reasons, and the matter is remitted to Commissioner Pearson and Acting Commissioner Sullivan for expeditious disposition.
      
    • (5) Exhibits A3 and A4 will remain in the Court file, but the other exhibits are returned.
      
    • (6) The matter will be listed before Commissioner Pearson for mention and directions at 4pm tomorrow, Friday 8 July 2011.