Bell v Unimin Australia Ltd (No 2) - [2011] QMC 24

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

Whitehorn v The Queen (1983) 152 CLR 657

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] QMC 24
Decision Date: 9 September 2011

CaseChat Overview and Summary

The case of Bell v Unimin Australia Ltd (No 2) involved an application by the applicant, Bell, to have three complaints against it struck out or permanently stayed. The complaints were brought by the respondent, Unimin Australia Ltd, and alleged that Bell had committed offences under the Integrated Planning Act 1997, the Environmental Protection Act 1994, and the Forestry Act 1959. The court was required to consider the legal issues surrounding the application to strike out or stay the complaints, as well as the application for directions for the respondents to call witnesses in support of the application.

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

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 Whitehorn v The Queen (1983) 152 CLR 657
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