Duty of general disclosure in objections hearings in Queensland: An update

Resources companies involved in objections hearings in Queensland Land Court need to be aware of the new developments regarding whether they need to provide objectors with documents relating to their projects.

What you need to know

• Resources companies preparing for objections hearings in the Queensland Land Court could still be required to provide objectors with potentially wide-ranging disclosure of documents about their projects, despite a Supreme Court decision to the contrary earlier this year.
• Overturning an earlier decision of the Queensland Land Court, the Supreme Court held in BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors that rule 13 of the Land Court Rules 2000 (Qld) – relating to disclosure – does not apply to objections hearings.
• However, the Land Court has subsequently issued Practice Direction Number 1 of 2015, which seeks to apply the Land Court Rules 2000 (Qld) – including rule 13 – to such matters.

The key State approvals required for a mining project in Queensland include a mining lease under the Mineral Resources Act 1989 (Qld) and an environmental authority under the Environmental Protection Act 1994 (Qld). The application processes for these approvals include an opportunity for third parties to lodge formal objections.

Under both Acts, objections to mining lease and environmental authority applications must be referred to the Land Court. After hearing the parties, the Land Court makes a recommendation which must be considered by, but is not binding on, the Minister deciding the relevant application.

Duty of general disclosure—decision of the Land Court

In December 2014 the Land Court decided the first contested and reported case regarding application of the duty of general disclosure to such matters. In BHP Billiton Mitsui Coal Pty Ltd v Baulch & Anor and Chief Executive, Department of Environment and Heritage Protection [2014] QLC 43, the Court found that rule 13 of the Land Court Rules 2000 (Qld) (Land Court Rules) operated to apply the disclosure rules in the Uniform Civil Procedure Rules 1999 (Qld) – including the duty of general disclosure – to the hearing of objections to mining lease and environmental authority applications.

The decision had the potential to require miners to provide objectors with a wide range of documents relating to their projects - including mining plans and proposals, commercial matters relevant to the development of the project, financial expectations for the project, and any other matter sought to be contested by any objector. Given the low threshold for objecting, the consequences of the decision could have placed significant burdens on mining lease applicants. The applicant sought review of this decision in the Queensland Supreme Court.

Subsequent decision of the Supreme Court

In BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors [2015] QSC 107, the Queensland Supreme Court overturned the Land Court's ruling, and decided that rule 13 does not apply to objections hearings.

Rule 13 seeks to pick up and apply the disclosure obligation in the Uniform Civil Procedure Rules 1999 "with necessary changes to disclosure in relation to a proceeding" in the Land Court (emphasis added).

In his decision, McMurdo J noted that the function of the Land Court in conducting objections hearings was administrative in nature. It results in a recommendation. This is a different role from the deciding of rights and liabilities of the parties. The Land Court itself has previously recognised this in Dunn v Burtenshaw (2010) 31 QLCR 156.

The Land Court Rules themselves identify what steps must be taken to start a "proceeding". These include the filing of forms with specific content. McMurdo J noted that these content requirements were not possible to reconcile with documents used to commence an objections hearing. In addition, the objections hearing process is not commenced by the applicant, but by the relevant Department.

The Land Court Rules themselves identify what steps must be taken to start a "proceeding". These include the filing of forms with specific content. McMurdo J noted that these content requirements were not possible to reconcile with documents used to commence an objections hearing. In addition, the objections hearing process is not commenced by the applicant, but by the relevant Department.

McMurdo J further noted that, in the process of civil litigation, issues disputed are precisely identified through formal pleading documents prepared by each side. In an objections hearing the Land Court has to consider wide statutory based criteria, including the public interest.

He ruled that the disclosure process for civil dispute is unsuitable for an administrative process before the Land Court

Legislative amendment and Practice Direction Number 1 of 2015

Following the Supreme Court's decision, the Land Court Act 2000 (Qld) was amended to expressly permit the Land Court Rules to provide for disclosure "in relation to the exercise or performance of an administrative function". There have not yet been any changes to the Land Court Rules in response to this amendment. However, we are aware that the government is conducting a broader review of Land Court powers. This may lead to further legislative change.

The Land Court has also issued Practice Direction Number 1 of 2015. Among other things, the practice direction states that the procedures to be applied in objections hearings "are the same as those outlined in the Land Court Rules 2000", with some limited exceptions. Notably, those limited exceptions do not include rule 13.

This means that, according to Practice Direction Number 1 of 2015, rule 13 does apply in objections hearing matters, despite the Supreme Court's decision. How the practice direction will be applied by the Land Court remains to be seen.

How does this compare to other States?

Queensland's application of the duty of general disclosure in these types of matters is unique.

The table below provides an overview of the application of the duty of general disclosure in other States.

Duty of general disclosure across other States