High Court

I post here a copy of the judgment of the High Court last week of Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd.

HER HONOUR: Thank you, Mr Andreatidis.

Oakey Coal Action Alliance Inc (“Oakey”) has been granted special leave to appeal from the orders of the Court of Appeal of the Supreme Court of Queensland (“the Court of Appeal”). This is an application by the first respondent, New Acland Coal Pty Ltd (“New Acland”) for an order that Oakey give security for New Acland’s costs of the appeal in the sum of $90,000.

The litigation has a lengthy history. In summary, Oakey was an objector before the Land Court of Queensland (“the Land Court”) to New Acton’s applications with respect to two mining leases under the Mineral Resources Act 1989 (Qld) and for the amendment of an environmental authority under the Environmental Protection Act 1994 (Qld).

The Court of Appeal found that the Land Court’s decision was affected by an apprehension of bias, but it declined to set the decision aside and remit the matter for rehearing. By special leave, Oakey appeals to this Court contending error in the failure to remit the proceedings for a rehearing on all issues. A question of general importance to which the appeal gives rise is whether considerations of utility justify not setting aside the findings of a tribunal which are acknowledged to be affected by an apprehension of bias.

Section 77S of the Judiciary Act 1903 (Cth) makes provision for the Rules of Court to provide for the giving of security for the prosecution of an appeal without delay and for the payment of the costs that may be awarded against the appellant. Part 59 of the High Court Rules 2004 (Cth) makes such provision.

New Acland has adduced evidence of its estimated costs of the appeal in an amount of close to $170,000, calculated on the professional time likely to be taken on each of the components of the work to be done under the current rates for work on and after 1 January 2020. The estimate includes an amount of around $17,000 for the costs of the present application. New Acland accepts that in light of the present COVID‑19 pandemic, certain of the assumptions on which the estimate is based are likely to be falsified in that it is probable that outlays such as travel and accommodation will not be incurred. Nonetheless, there is no challenge to New Acland’s contentions that its likely costs of the appeal will be well in excess of the amount of $90,000 that it seeks.

Oakey is a registered charity incorporated under the Associations Incorporation Act 1981 (Qld). It has around 60 members. It was formed in 2011 with the object of opposing the expansion of the New Acland Coal Mine. Oakey provided the sum of $40,000 by way of security for the costs of its appeal to the Court of Appeal. This sum was raised from supporters. The moneys remain with the Department of Justice of Queensland.

In a statutory declaration made by Paul Bernard King, Oakey’s secretary, in apparent support of its application for waiver of filing fees in the Court of Appeal, it was stated that Oakey’s members had reached the limit of their capacity to raise funds. It is common ground that Oakey does not have the capacity to pay the costs of an unsuccessful appeal to this Court. As at 3 August 2020, the balance in Oakey’s bank account was $4,783.12. Oakey does not have any regular income and it has no material assets.

Mr King deposes to the membership of Oakey as comprising, “largely local farmers, graziers, veterinarians and concerned townspeople who share a common interest in seeing that the Stage 3 expansion of the New Acland Coal Mine be refused”. Mr King deposes to having had regular contact with fellow members and he asserts his belief that the current COVID‑19 pandemic has had an impact on the income and the economic security of many of them, such as to severely affect their ability to provide further funds to pursue the litigation. Mr King states that Oakey will endeavour to raise funds from the public were an order for security to be made. He expresses doubts, again in the particular economic circumstances, about the prospects of raising $90,000 and confidence about Oakey’s inability to do so in time for the hearing of the appeal.

If security was ordered, Mr King states that Oakey would seek support from other charities, noting that it has received some limited support from one like‑minded charity in the past in the sum of $5,000 and that it has been unsuccessful in respect of a number of recent requests for limited financial assistance from other charities. Mr King draws attention to a body, the Grata Fund, which provides assistance for costs in some public interest cases and deposes to Oakey’s willingness to approach the Grata Fund were an order for security made. He states that the process is “quite involved” and he is unable to say whether the fund would be willing to provide an amount of $90,000.

More generally, Mr King asserts his belief that the prospects of obtaining assistance from any of these sources is weakened, in his view, by steps that have been taken by New Acland seeking personal costs orders against Oakey’s officeholders. Mr King asserts that it is “likely that Oakey would not be able to raise $90,000 from any known source in the time available”, which I take to be a reference to the 14 days proposed by New Acland in its form of order.

Central to New Acland’s application is the contention that Oakey has failed to identify its members or to adduce evidence of their financial position from which it might be inferred that there is no one standing behind the organisation with the capacity to provide the sum sought. New Acland submits that Oakey’s members are not to be viewed as persons acting in the public interest, but rather as individuals with a personal interest in the outcome of the appeal.

Oakey does not contest that some of its members may have financial resources, nor that some may be said to have an interest in the outcome of the appeal, in the sense that the value of farming properties may be increased in the event the expansion of New Acland’s mine does not proceed. Oakey points to its objects, which include ensuring the protection of aquifers and the Great Artesian Basin and the protection of environmentally and culturally sensitive areas, in addition to the protection of rural residential and closely settled areas and good agricultural land. It points to the evidence that its membership includes individuals described as “townspeople”, a reference I take to be persons living in or around the township of Oakey.

As Mr Andreatidis concedes, it may be that the townspeople would see substantial economic advantages in the event that the mine expansion proceeds. It is difficult to characterise the membership of this voluntary, charitable organisation in the same way as the shareholders or creditors of an impecunious corporation who stand to financially gain by litigation prosecuted by the corporation.

The authorities touching on the making of orders for security, in the case of impecunious corporate plaintiffs/appellants, were collected by French J, as his Honour then was, in Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd. Relevantly, his Honour summarised the effect of the authorities as rejecting both that a defendant/respondent has an entitlement to an order where the corporation’s impecuniosity is established and that the probability that an order will frustrate the plaintiff’s/appellant’s claim/appeal automatically leads to withholding the order. The latter probability his Honour identified as a factor weighing against the making of an order where there is no party standing behind the corporation who is in a position to provide the necessary security^[1].

New Acland relies on McHugh J’s reasons in PS Chellaram & Co Limited v China Ocean Shipping Co & Anor^[2]. His Honour there observed that he would hesitate to make an order for security for costs if the effect of that order would be that the appeal could not be pursued because neither the appellant nor those who stand behind it could provide security for the costs of the appeal.

The appellant in Chellaram was a company incorporated in Hong Kong with no assets in the jurisdiction and there was no evidence that the two shareholders in the appellant were not in a position to put the appellant in sufficient funds to provide the security that was sought. As earlier noted, it seems to me the position of members of Oakey is to be distinguished from individuals such as the shareholders in Chellaram who had an evident commercial interest in the outcome of the proceedings.

New Acland is a wholly owned subsidiary of New Hope Corporation Limited and part of the New Hope Group. Oakey adduced evidence of extracts from the New Hope Group’s 2019 annual report in support of a submission that the resources available to New Acland and the money that it has expended thus far on the Stage 3 project are such that the sum sought as security is insignificant for New Acland.

Oakey invites the Court to infer from this material that New Acland’s purpose in applying for security for costs is not the need for the financial security itself, but rather to shut down the appeal. Oakey’s submission draws on the observations of Basten JA in the Court of Appeal of the Supreme Court of New South Wales in Pioneer Park Pty Ltd (in liq) v Australia and New Zealand Banking Group Limited^[3].

In that case it was suggested that it might be seen as oppressive to allow a large corporate defendant to obtain an order for security of costs, which would likely stifle the litigation, in circumstances in which the claim had potential merits and the costs would, in any event, be a relatively insignificant amount for the corporate defendant‑‑a consideration of the same kind as noted by Lord Denning in Sir Lindsay Parkinson & Co Ltd v Triplan Ltd^[4].

Bowskill J ordered that there be no order as to the costs of the judicial review proceedings. That order was overtaken by the orders of the Court of Appeal directing that Oakey pay New Acland’s costs of the appeal and cross‑appeal. Those costs have been assessed in an amount of over $736,000. That sum remains outstanding.

Oakey sought special leave on a ground which challenged the Court of Appeal’s costs order. The Court raised with Oakey’s counsel the necessity for such a ground, noting that issues of costs are not normally independently addressed. Notwithstanding the grant of special leave on grounds 1 and 2, New Acland pressed the Supreme Court of Queensland to wind up Oakey, by reason of its inability to pay the costs ordered by the Court of Appeal. On 22 July 2020, Davis J adjourned the winding‑up application to abide the determination of the appeal to this Court.

The likelihood is that were an order for security to be made, it would have the effect of stifling the appeal. Necessarily, any assessment of the merits of the appeal must be tentative, but as Justice Toohey observed in Webster v Lampard^[5] it is hard to say that an appeal to this Court that has passed the scrutiny of section 35A of the Judiciary Act is without merit.

Contrary to New Acland’s submission, the appeal raises questions of importance and, having persuaded this Court that special leave was warranted, I consider that Oakey should not lightly be shut out because of its impecuniosity. A further consideration is the timing of the application. Special leave to appeal was granted on 5 June 2020. This application was not brought until 7 August 2020. New Acland accepts that it delayed in bringing the application. It seeks to explain that delay by noting that it pursued an avenue that it was open to it to do by way of the proceedings to wind up Oakey.

The consequence of the delay was that Oakey undertook substantial work in preparation of the appeal. On 10 July 2020, Oakey filed the core appeal book and on 24 July 2020 it filed and served its submissions, book of further materials and chronology. New Acland was aware of Oakey’s financial position at the time special leave to appeal was granted. I do not consider the pursuit of the winding‑up proceedings to be a satisfactory explanation for the failure to bring the present application in a timely way.

While the inability of an appellant to meet the costs of an unsuccessful appeal is plainly a relevant factor, it is no more than a factor to be weighed in all of the circumstances. Ultimately, the issue for the Court is whether the interests of justice are served by making the order for security^[6]. I am not persuaded that the interests of justice favour the making of the order that is sought. For these reasons the application is dismissed with costs.

Adjourn the Court until 1 September at 10.00 am from Canberra by video link.

AT 11.07 AM THE MATTER WAS ADJOURNED

A full copy of this matter can be found on the website of HCA.00