Former Premier Barry O’Farrell made the controversial decision to strip NuCoal of the licence on the grounds that it was granted corruptly by former Resources and Energy Minister Ian Macdonald even though the company had spent more than $100 million on the project.
NuCoal claimed it was not party to any corruption identified by the Independent Commission Against Corruption, which found that Macdonald had corruptly awarded the Doyles Creek licence to union ally John Maitland.
The company’s statement of claim seeks a declaration from the High Court that the Mining Amendment Act that removed the licence is invalid.
“It is expected that the effect of such a declaration would be that the Mining Amendment Act is void and the expropriation of EL 7270 [Doyles Creek] reversed,” the statement of claim says.
NuCoal alleges the NSW Mining Amendment Act is invalid on constitutional and legal grounds.
The act amounts to an “exercise of judicial power by the NSW Parliament, which is prohibited by the state and federal Constitutions”, it claims.
“The statement of claim asserts that the NSW Parliament made purported findings of corruption in respect of the grant of EL 7270 in reliance on findings of ICAC. The NSW Parliament, through the act, imposed punishment on the basis of these findings.
“These findings were not made against NuCoal or any of its current directors. This punishment took the form of expropriating NuCoal’s valuable property, denying the company its various procedural rights under law, and absolving the state from any liability.”
According to NuCoal, even if the NSW Parliament has the power to pass this form of legislation, it must do so in accordance with the rule of law, which it failed to do.
The statement of claim alleges that the Mining Amendment Act deprived NuCoal of its statutory and common law rights, imposed punishment absent a breach of existing law, and denied NuCoal procedural fairness.
It further contends that the Mining Amendment Act was specifically targeted at NuCoal, was improperly retroactive and destroyed certain rights upon which the company relied in order to guide its affairs.
“As a result, the passage of the Mining Amendment Act was contrary to fundamental and binding principles underpinning the Australian system of law and government,” NuCoal said.
NuCoal will also serve the Attorneys-General of the States of Australia with the Writ of Summons and Statement of Claim, in accordance with section 78B of the Judiciary Act 1903.
In addition to this constitutional challenge before the High Court, NuCoal continues to litigate its judicial review action concerning the ICAC’s findings and recommendations, before the NSW Supreme Court.
NuCoal is also pursuing avenues of compensation for its shareholders and investors under the US-Australia Free Trade Agreement.
