High Court confirms the nuclear effect of a finding of apprehended bias

In Oakley Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors [2021] HCA 2 the High Court allowed an appeal against a decision of the Queensland the Court of Appeal that had declined to set aside and remit for rehearing an administrative decision of the Land Court of Queensland found to be affected by apprehended bias. The Court of Appeal had held that there was no “utility” in ordering a rehearing in the circumstances of the appeal.

Kiefel CJ, Bell, Gageler and Keane JJ (in a joint judgment) and Edelman J (in separate reasons) confirmed that, ordinarily a finding that an inferior court’s decision was affected by apprehended bias will result in the decision below being set aside and a new hearing ordered. While a court exercising judicial review has is a discretion in highly exceptional cases not to do so, practical inconvenience of giving effect to the rights, duties and powers that have been judicially determined is not a circumstance that can justify withholding an order for a rehearing.

The appeal involved a controversial proposed coal mine expansion on the Darling Downs with a complicated procedural history.

Complicated procedural history

New Acland Coal Pty Ltd (NAC) operates an open-cut coal mine near Oakey on the Darling Downs, Queensland.

In 2007, NAC sought to expand its mine, applying for mining leases under the Mineral Resources Act 1989 (MRA) and an amendment to its existing environmental authority under the Environmental Protection Act 1994 (EPA).

In 2012, the then LNP State Government rejected the original proposed expansion, after which NAC reduced its scale substantially.

In 2015, after objections were made to expansion, the applications were referred to the Land Court for a public hearing and were heard by Member Smith.  The Oakey Coal Action Alliance Inc (OCAA) was one of the objectors.  The issues heard in the court included economic issues, air quality, noise, climate change, biodiversity, groundwater etc. The hearing was the longest in the Land Court’s history, lasting nearly 100 sitting days.

In 2017, Member Smith handed down a decision recommending NAC’s applications be refused due to problems with imposing acceptable noise limits, concerns over the impact on groundwater, and intergenerational inequity due to the impact on groundwater. The Chief Executive acted upon the recommendations made by Member Smith and refused the application under the EPA.

NAC applied under ss 20 and 21 of the Judicial Review Act 1991 (JRA) to the Supreme Court for a statutory order of review of Member Smith’s recommendations based on 15 grounds, including  apprehended bias. In 2018 Bowskill J found no apprehended bias on the part of Member Smith in relation to the recommendations, but set aside his decision and remitted the applications to the Land Court to be reheard by a different member to due to a number of errors of law, including that the Land Court had no jurisdiction to consider impacts on groundwater quantity.

With the consent of the parties, Bowskill J made unusual orders for the remittal to the Land Court to avoid re-litigation of issues that Member Smith had decided which weren’t affected by legal error. Under these orders, the applications were to be heard by a different member of the Land Court but would be largely bound by Member Smith’s findings.

OCAA appealed against Bowskill J’s decision that groundwater was not within the Land Court’s jurisdiction to the Queensland Court of Appeal. To protect its position, NAC attempted to cross-appeal on a contingent basis against the refusal to uphold its ground of review for apprehended bias. NAC attempted to make the cross-appeal contingent on OCAA’s appeal being dismissed (that is, the cross-appeal would only proceed if the Court of Appeal were to uphold OCAA’s appeal).

While the appeal was pending, the applications were returned to the Land Court and a rehearing was held before President Kingham on the unusual and very limited basis as ordered by Bowskill J to avoid re-litigation of issues that Member Smith had decided which weren’t affected by legal error. This resulted in a much shorter hearing (of only 3 days). Ultimately, President Kingham recommended the applications be approved subject to reducing the noise limits in the environmental authority.

In 2019, at the start of oral hearing before the Court of Appeal, President Sofronoff refused to allow NAC to proceed on a contingent basis for apprehended bias. NAC conceded that a finding of apprehended bias was “nuclear in effect” and would mean the applications would have to be reheard in full by the Land Court. NAC elected to proceed with its cross-appeal not on a contingent basis.

Ultimately, the Court of Appeal gave two decisions at the end of 2019. In the first, it dismissed OCAA’s appeal and allowed NAC’s cross-appeal.  In the second decision, after allowing further submissions on the orders that ought to be made, the Court of Appeal declined to set aside the decisions below because of the lack of “utility” in doing so, as the applications had already been reheard before President Kingham.

OCAA applied for special leave to appeal against the Court of Appeal’s decision not to order a rehearing after having found apprehended bias in the Land Court’s decision. In early 2020 the High Court granted special leave to appeal and the appeal was heard towards the end of 2020.

The High Court found that Kingham P did not behave with apprehended bias during the rehearing but, because she was bound to apply the findings by Member Smith which were affected by apprehended bias, she “breached a condition of the exercise of the Land Court’s jurisdiction to perform its administrative function under the MRA and the EPA” [49]. Additionally, the High Court stated that “central to those implied conditions of that statutory process by which the recommendation is required to be produced is that the Land Court observe procedural fairness in conducting the hearing and in making the recommendation” [57].

The High Court ordered that the appeal be allowed and a new hearing before the Land Court be made.


Madhuri Pillai

8 February 2021