Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources

COURT OR TRIBUNAL

New South Wales Land and Environment Court

DATE FILED (OR FIRST HEARING DATE)

31/08/2009

LITIGATION TYPE

Project Approval - Mitigation, Access to Justice, Access to Justice

SUBJECT MATTER

Coal mine, Costs, Transparency and disclosure

REVIEW TYPE

Judicial review

SUMMARY

The applicant has brought proceedings for judicial review, challenging the validity of an exploration licence. The applicant applied for a maximum costs order to be issued. The power to make such an order is discretionary. The purpose of the order is to maximise access to justice. However, this does not always equate to access to justice. On the facts of this case, the Judge could not find that access to justice would be impeded by not making such an order, and the proceeding was dismissed.

In the second judgment, Caroona CAG proceeded with its challenge to Minister's decision to grant coal mining exploration licence on narrow grounds, unrelated to climate change. The challenge was unsuccessful. In a subsequent hearing, the Court held that Caroona CAG should pay the respondents legal costs.

In the third judgment, CMA and the Minister applied for an order that the applicant pay their costs. The primary ground on which the applicant opposes any order for costs is that the proceedings were brought in the public interest. There is a three limb test to determine whether a departure should occur from the usual costs rules. Despite passing the first limb of the test, the second and third limbs were not made out to justify a departure from the usual costs rule. Applicant was ordered to pay all costs.

In the fourth judgment, CMA (the coal company) applied to restrict Caroona CAG's access to a document that their legal advisers had received into evidence. The confidential document was an expression of interest submitted by CMA's parent company, BHP Billiton, to the NSW Government entitled 'Caroona Coal Exploration Area December 2005' ('Caroona EOI'). Caroona Coal Action Group opposed the application for restricted access, arguing it was not required for the purposes of litigation and instead was contrary to 'open justice'. The Court upheld CMA's application.

CASE DOCUMENTS

Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources [2009] NSWLEC 165
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 2) [2010] NSWLEC 1; 172 LGERA 25
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; 173 LGERA 280
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 4) [2010] NSWLEC 91