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Back to square one for New Acland Stage 3

The High Court of Australia has allowed an appeal against the decision of the Queensland Court of Appeal regarding the New Acland Stage 3 mine, ordering a new hearing into the proposed expansion of the coal mine, and further prolonging this complex and lengthy litigation.[1]

Key points

  • New Acland Coal Pty Ltd (NAC) has applied for a mining lease and environmental authority for Stage 3 of the Acland coal mine.

  • The application has been the subject of extensive litigation through the Land Court of Queensland, the Supreme Court of Queensland, the Court of Appeal, and finally the High Court of Australia.

  • The High Court has decided that because the original decision of the Land Court was affected by an apprehension of bias, the Land Court must reconsider the entire application again – resulting in further delays to reaching the ultimate decision on the applications.

History of the litigation

At first instance, the Land Court recommended refusal of NAC’s applications for mining leases and amendment of its existing environmental authority, following the longest trial in the history of the Land Court.  

The Supreme Court of Queensland judicially reviewed that decision, ultimately remitting the matter back to the Land Court for rehearing before a different Member, but was largely bound by the findings and conclusions of fact at first instance.  Following the rehearing in the Land Court, it recommended that Stage 3 be approved (subject to amended noise limits).  

The Court of Appeal then allowed an appeal against the Supreme Court’s decision, and found that the original decision of the Land Court was affected by an apprehension of bias.   

While the Court of Appeal initially indicated that the applications would need to be reconsidered by the Land Court in their entirety, after receiving further submissions from the parties, the Court of Appeal decided that the Land Court’s later recommendation for approval should stand.

The High Court’s decision

On appeal to the High Court, both the community group, Oakey Coal Action Alliance, and NAC accepted that the original decision of the Land Court was affected by an apprehension of bias. The key issue for determination by the High Court was the consequence of that finding of bias.

The Court of Appeal had previously decided that while the Land Court’s original decision was affected by an apprehension of bias, the orders of the Supreme Court requiring the Land Court reconsider the application on a limited basis had been ‘spent’, as the Land Court had already reconsidered NAC’s application and recommended approval.

The Court of Appeal found that there was no utility in setting aside the Supreme Court’s orders, and that a complete rehearing “would accomplish nothing”.

In a 5-0 ruling, the High Court held that the Court of Appeal should have ordered a complete rehearing. The original decision of the Land Court had failed to comply with the legislative framework, in that the Land Court did not act in accordance with procedural fairness.  

As the original decision of the Land Court had been affected by a legal error, it was a ‘nullity’ – it was of no effect.  As a consequence, the Land Court’s later decision, which was bound by the original findings and conclusions, was also of no effect.  

The High Court also held that the fact that NAC would be put to further cost and delay did not mean that the applications should not be subject to a rehearing.  

Back to square one

If NAC decides to progress with the applications for Stage 3 of the mine, it will need to again attend a hearing of the Land Court. The Land Court will then have to consider the evidence and make its recommendation to the Minister, who will ultimately decide if Stage 3 should be approved.  

This case highlights the importance of procedural fairness and how a failure to afford procedural fairness can result in substantial cost and delay to all parties.

[1] Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2.


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Environment and Planning Construction, Major Projects and Infrastructure Energy and Natural Resources Litigation and Dispute Resolution

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