MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Bell & Anor v Unimin Australia Ltd (No 2) [2011] QMC 24
PARTIES:
GRAHAM BELL
(complainant/ respondent)
WILLIAM GORDON
(complainant/ respondent)
v
UNIMIN AUSTRALIA LIMITED
(defendant/ applicant)
FILE NO/S:
MAG245636/09(1), MAG245626/09(6), MAG113031/10(7)
DIVISION:
Magistrates Courts
PROCEEDING:
Application for direction prosecutor call witnesses
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
9 September 2011
DELIVERED AT:
Brisbane
HEARING DATE:
14 June 2011, 16 June 2011
MAGISTRATE:
Lee G
ORDER:
The application seeking directions that the respondents call witnesses to be available for cross examination by the applicant in support of its application to strike out or permanently stay three complaints charging the applicant with an offence under the Integrated Planning Act 1997, an offence under the Environmental Protection Act 1994, and an offence under the Forestry Act 1959 respectively is refused.
CATCHWORDS:
ENVIRONMENT LAW – OFFENCES – PRACTICE AND PROCEDURE - application to strike out or permanently stay complaint - abuse of process – application for direction prosecutor call witnesses in application
Environmental Protection Act 1994 (Qld), s 427(1), s 490(6)
Forestry Act 1959 (Qld), s 53, s 95(g)
Integrated Planning Act 1997(Qld), s 4.3.1, s 4.4.10
Justices Act 1886 (Qld), s 83A
Mineral Resources Act 1989 (Qld), s 6
DPP (NSW) v Zhang [2007] NSWSC 308
Electronic Rentals Pty Limited et al v Anderson et al (1970-1971) 124 CLR 27
Furnell v Betts (1978) 20 SASR 300
Johnson v Miller (1937) 59 CLR 467
Postermobile plc v Brent London Borough Council The Times Law Reports, 8 December 1997 627
Power v Heyworth [2007] QSC 26
R v Petroulias (2006) 182 A Crim R 1; [2006] NSWSC 1422
Richardson v The Queen (1974) 131 CLR 116
Smithers v Andrews, ex parte Andrews [1978] Qd R 64
The Queen v Apostilides (1984) 154 CLR 563
The Queen v Butler (No 1) (1991) 102 FLR 341
The Queen v Cooper, 8 December 1995 (unreported) Supreme Court of Western Australia BC9502720
The Queen v Williams (1976) 14 SASR 1
Wells v The Queen, 30 April 2010 (unreported) Court of Appeal Victoria No S APCR 2010 0090
COUNSEL:
A Glynn SC for complainants
R Devlin SC for defendant
SOLICITORS:
Department of Environment and Resource Management for the complainants
Sparke Helmore Lawyers for the defendant
This is an application by Unimin Australia Limited (Unimin) to strike out or permanently stay three complaints made pursuant to the Justices Act 1886 (the JA) charging it with offences under the Integrated Planning Act 1997 (IPA), the Environmental Protection Act 1994 (EPA) and the Forestry Act 1959 (FA) respectively.
The application is based on two grounds. As to the first ground, that the charges under IPA and EPA were insufficient in law to found the jurisdiction of this court because they failed to plead essential factual ingredients, by judgment delivered 23 December 2010[1] I concluded that those two complaints were not incurably defective so as to deny jurisdiction in this court. The applicant had not pressed…
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- Case
- [2011] QMC 24
- Decision Date
CaseChat Overview and Summary
The central legal issues that the court had to decide related to whether the application to strike out or stay the complaints was an abuse of process, and whether the respondents were required to call witnesses in support of the application. The court had to consider whether the application was an abuse of the court's process, and whether it was appropriate to grant the application for directions to call witnesses. The court also had to consider the balance of convenience and whether it was in the interests of justice to grant the application.
The court found that the application to strike out or stay the complaints was not an abuse of process. The court held that the application was a legitimate use of the court's process and that it was appropriate for the court to consider the application. The court also found that it was not necessary for the respondents to call witnesses in support of the application, as the application was based on written submissions and the court was able to make a decision based on the material before it. The court held that the application for directions to call witnesses was refused, and that the application to strike out or stay the complaints was also refused.
The court's final orders were that the application seeking directions that the respondents call witnesses to be available for cross examination by the applicant in support of its application to strike out or permanently stay three complaints charging the applicant with an offence under the Integrated Planning Act 1997, an offence under the Environmental Protection Act 1994, and an offence under the Forestry Act 1959 respectively was refused. The court found that the application was not an abuse of process, but that it was not appropriate to grant the application to strike out or stay the complaints. The court also found that it was not necessary for the respondents to call witnesses in support of the application.
Orders
Orders of the court
The application seeking directions that the respondents call witnesses to be available for cross examination by the applicant in support of its application to strike out or permanently stay three complaints charging the applicant with an offence under the Integrated Planning Act 1997, an offence under the Environmental Protection Act 1994, and an offence under the Forestry Act 1959 respectively is refused.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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