The High Court has upheld an appeal against New Acland Coal’s (NAC’s) applications to extend the New Acland open-cut coal mine (Project) (Applications). The Applications must now be determined afresh as a result of apprehended bias in the Land Court of Queensland.
- On 6 October 2020, the High Court heard an appeal brought by Oakey Coal Action Alliance Inc (Alliance) against the Project.
- The Alliance argued that the Applications could not be determined because the Land Court’s decision was affected by apprehended bias. NAC argued that the Applications were not tainted by, and could be granted despite, the apprehended bias.
- The High Court has upheld the appeal and sent the matter back to the Land Court. In doing so, the High Court has reiterated that a decision affected by bias should ordinarily be set aside.
We have summarised the history of this matter in an earlier post. In short:
- the Alliance objected to the Applications. In May 2017, the Land Court (Member Smith) recommended that the Applications be refused;
- in May 2018, the Supreme Court (Justice Bowskill) dismissed a claim that Member Smith was biased but remitted the case to the Land Court to reconsider three other issues (Remittal Orders);
- both parties appealed to the Court of Appeal. Meanwhile, in November 2018, the Land Court (President Kingham) recommended the Applications be granted. One Application was subsequently granted; and
- in November 2019, the Court of Appeal declared Member Smith’s decision to be affected by apprehended bias but did not remit the matter.
On 5 June 2020, the High Court granted the Alliance special leave to appeal.
On 6 October 2020, Chief Justice Kiefel and Justices Bell, Gageler, Keane and Edelman heard the appeal.
The Alliance argued the Applications could not be granted
Key submissions made by the Alliance included that:
- Member Smith’s findings were infected by apprehended bias and were therefore beyond the Land Court’s jurisdiction;
- President Kingham’s decision, which relied on those findings, was equally beyond jurisdiction and could not be authorised by the Remittal Orders; and
- the Applications could therefore not be granted.
Meanwhile, NAC argued:
- apprehended bias did not infect any decision to grant the Applications, as the Land Court’s role was limited to making a recommendation;
- the Remittal Orders, being made by a supreme court, validated President Kingham’s decision until they were set aside, even if a defect was found later; and
- the complexity of this case was a discretionary factor weighing against remittal.
High Court upheld the Alliance’s appeal
The High Court unanimously upheld the Alliance’s appeal, set aside the Application that had been granted and remitted the Applications to the Land Court.
Chief Justice Kiefel, Justices Bell, Gageler and Keane reasoned that President Kingham’s recommendations had no legal consequences under the:
- Remittal Orders, because those orders could not authorise the Land Court to exceed its jurisdiction and should have been set aside; and
- relevant legislation, because adopting Member Smith’s findings was a breach of the implied condition that the Land Court’s powers be exercised independently and impartially.
As the Land Court’s duty remained unperformed, the judges in the joint judgment held that the Land Court should reconsider the Applications unless there were sufficient reasons to order otherwise, which there were not.
Justice Edelman agreed but gave separate reasons. His Honour held that Justice Bowskill’s order for a rehearing confined to the three other issues should be set aside. Once that order is set aside, it could not give continuing validity to President Kingham’s decision.
The High Court’s decision represents a major setback for the Project. The proposal to extend the Project has effectively been wound back to its status in March 2016, before the start of the first Land Court hearing that took more than a year and almost 100 sitting days to complete.
Apart from its relevance for the Project, this decision also usefully illustrates how a decision affected by bias interacts with subsequent decisions. In particular, the High Court has reiterated that a decision affected by bias should ordinarily be set aside. The High Court has also made it clear that the mere practical inconvenience of having to re-determine subsequent decisions cannot justify withholding that remedy.
By Peter Briggs, Partner, Tom Dougherty, Senior Associate, and Zhongwei Wang, Solicitor.