SUPREME COURT OF QUEENSLAND
CITATION:
Fox Coal Pty Ltd & Anor v Minister for Resources [2023] QSC 197
PARTIES:
FOX COAL PTY LTD
(first applicant)
and
ZIMPROPS COAL PTY LTD
(second applicant)
v
SCOTT STEWART, MINISTER FOR RESOURCES
(respondent)FILE NO:
BS 5887 of 2022
DIVISION:
Trial Division
PROCEEDING:
Application for judicial review under Judicial Review Act 1991 (Qld)
ORIGINATING COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON:
29 September 2023
DELIVERED AT:
Brisbane
HEARING DATE:
14 March 2023
JUDGE:
Hindman J
ORDER:
The Decision is set aside. The parties are to make submissions on the costs of the proceeding.
CATCHWORDS:
JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the respondent rejected an application made by the applicants for the grant of a mineral development licence under s 186(1)(b) of the Mineral Resources Act 1989 (Qld) – where the respondent’s refusal was made on the basis that granting the licence was not in the public interest due to community sentiment adverse to the grant of the licence – where the applicants contend that the respondent’s decision was vitiated by an error of law because the respondent failed to undertake a required evaluative judgment of whether granting the licence was in the public interest – where the applicants further contend that the respondent failed to take into account relevant considerations and took into account irrelevant considerations – where the applicants further contend that the decision was unreasonable in the legal sense – whether the respondent’s decision to reject the applicants’ application for a mineral development licence should be set aside
Legislation
Environment Protection (Impact of Proposals) Act 1974 (Cth)
Judicial Review Act 1991 (Qld) ss 4, 20, 23, 32
Mineral Resources Act 1989 (Qld) ss 2, 6D, 179, 181, 183, 186, 286A, 318AK, 386M and 386N
Cases
AB v Western Australia (2011) 244 CLR 390
Botany Bay City Council v Minister for Transport and Regional Development (1996) 137 ALR 281
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Dodds v Comcare Australia (1993) 31 ALD 690
DPP v Smith [1991] VR 63
ERO Georgetown Gold Operations Pty Ltd v Cripps, Minister for Natural Resources & Mines [2015] QSC 1
Harburg Investments Pty Ltd v Mackenroth [2005] 2 Qd R 433
Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1
Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Osland v Secretary to the Department of Justice [No 2] (2010) 241 CLR 320
O’Sullivan v Farrer (1989) 168 CLR 210
Papillon Mining & Exploration Pty Ltd (in liq) v Wilson [2010] 1 Qd R 452
Plaintiff S10-2011 v Minister for Immigration and Citizenship (2012) 264 CLR 636
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- Case
- [2023] QSC 197
- Decision Date
CaseChat Overview and Summary
The court examined previous cases to determine the appropriate standard for assessing public interest. The court found that an assessment of public interest should involve weighing benefits and detriments. The court also noted that the Minister's decision should be a matter of discretion but must be exercised properly. The court held that the Minister failed to undertake a proper evaluative judgment and failed to take into account relevant considerations. The court found that the Minister's decision was unreasonable in the legal sense and set aside the decision.
The court ordered that the decision be set aside and that the parties make submissions on the costs of the proceeding.
Orders
Orders of the court
The Decision is set aside. The parties are to make submissions on the costs of the proceeding.
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
Ratio Decidendi
Legal Principle Established
Similarly, Stephen J held at 485: Any consideration of the public interest for the purposes of regulation 39(2)(a) should, I think, involve the weighing of benefits and detriments… In some special contexts, questions of public interest may not involve this process of weighing against each other conflicting merits and demerits. Where, however, the concept of the public interest occurs as a factor in the grant or refusal by the Crown of a mining lease, it can, I think, have only this meaning. After quoting those passages, Fryberg J went on at [22] – [24] in Papillon: In my judgment, the evidence in the present case does not support a conclusion that the Minister failed to take the merits of the objections into account in that he failed to weigh them against other aspects of the public interest. …It is no doubt correct that in ascertaining the ambit of any discretion vested in the Minister, close regard must be paid to the terms of the Act. It is I think also correct that in identifying what is comprehended by the public interest in the Act, it is relevant to have regard to section 2. But as counsel for Papillon conceded, section 2 cannot be regarded as setting out an exclusive list of factors. Whether the existence of public objections is a relevant consideration must be determined having regard to the Act as a whole. From [26] Fryberg J referred to the decision in Harburg, particularly the section quoted at [33] above. A further case demonstrating an evaluative process when considering public interest is Botany Bay City Council v Minister for Transport and Regional Development (1996) 137 ALR 281. In that case, the then-opposition made a pre-election promise to re-open a closed airport runway if elected. The opposition was elected. Fulfilling the promise required two things to happen – the first of which was the Minister for Environment issuing an exemption under the Environment Protection (Impact of Proposals) Act 1974 (Cth). That Minister was required to take public interest into account under section 11.3.1(a)(iv). At [12]-[13], the Minister in the statement of reasons for issuing the exemption said: I note that in considering how the application of the administrative procedures will affect the “public interest” there may possibly be competing “public interests”. In this regard, I’ve had regard to the following – …Nevertheless, any public interest in having an environmental assessment of the impact of aircraft noise in these communities is, in my view, outweighed by the need for the immediate relief of those most directly affected by the aircraft noise as a result of current arrangements. Lehane J in the decision seemed to endorse that the decision-making exercise in deciding public interest required a balancing (or weighing) exercise to be undertaken. At 308 he said (emphasis added): The public interest is a term embracing matters, among others, of standards of human conduct, the functioning of government ….Once, however it is concluded that the second respondent’s ([the Minister’s]) identification of a public interest concern cannot be impugned in these proceedings, the balancing process is pre-eminently a matter for the second respondent’s discretion.