Following the Independent Commission Against Corruption’s findings against Macdonald, a second report from “Operation Acacia” is due to make a recommendation to Resources and Energy Minister Chris Hartcher by the end of the year about how it should deal with the status of Doyles Creek, which is NuCoal’s major asset.
NuCoal says the company and its shareholders have unfairly suffered as the corruption hearings have taken place and the project needs certainty to proceed after the company spent more than $40 million on proving it up.
“Until ICAC’s recommendations are made and considered by the NSW government, NuCoal will continue to be in the difficult position of not having certainty as to its security of tenure or a clear course of action for compensation for its losses,” it said in a statement to the ASX.
“Given this situation the NuCoal board has determined to take whatever realistic steps it can to protect the company’s legal position, especially taking into account the elapse of time and the potential for future actions by NuCoal to become statute barred.”
NuCoal has applied to the mineral resources minister for the renewal of EL 7270 (Doyles Creek) and for the grant of assessment leases (ALAs 48 and 49) across most of the area covered by EL 7270 before the term of EL 7270 expired.
The applications have not yet been determined by the minister.
“[The company] has recently written to the minister for mineral resources requesting him to determine all outstanding applications made under the Mining Act 1992 by 31 January 2014,” it said.
“If this does not occur, it has indicated it will file proceedings in the Land and Environment Court of NSW seeking a mandatory order from the court requiring that the minister determine the outstanding applications.”
The ICAC report found circumstances that could establish that former minister Macdonald had committed the common law crime of “misconduct in public office”
It recommended that the circumstances be referred to the Department of Public Prosecutions to determine whether criminal charges should be laid against the former minister.
“The elements of criminal MIPO are materially similar to the tort of ‘misfeasance in public office’ which, if proven, could be the basis for an entitlement to damages from the former minister and the state of NSW,” NuCoal said.
“The NuCoal board has therefore instructed its lawyers to commence preparation of the necessary documents required to initiate proceedings based on civil MIPO.
“If this action ultimately becomes necessary and is successful, it may result in compensation from the NSW government by operation of the Law Reform (Vicarious Liability) Act 1983.”
