Fox Coal Pty Ltd v Minister for Resources

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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

Australia Pacific LNG Pty Limited v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124

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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Details
Case
[2023] QSC 197
Decision Date

CaseChat Overview and Summary

In the matter of Fox Coal Pty Ltd v Minister for Resources, the applicants sought judicial review of a decision by the Minister for Resources to refuse their application for a mineral development licence. The applicants argued that the Minister's decision was flawed on several grounds, including an error of law, failure to consider relevant factors, consideration of irrelevant factors, and unreasonableness. The central legal issue was what the Minister's assessment of "public interest" under the Mineral Resources Act 1989 (Qld) required. The applicants contended that the Minister failed to undertake a proper evaluative judgment of whether granting the licence was in the public interest and failed to take into account relevant considerations.

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

This is an application by the applicants pursuant to s. 20 of the Judicial Review Act 1991 (Qld) (JRA) to review a decision[1] (Decision) of the respondent (Minister) made on 5 April 2022 to refuse the applicants’ application of 2 October 2019 for the grant of mineral development licence 3040 (MDL 3040) under the Mineral Resources Act 1989 (Qld) (MRA) over land within the boundaries of EPC 1523 (MDL Application).[2] The parties agree that the MDL Application satisfied the criteria for such an application under s. 183(1) of the MRA.[3] The Minister refused the MDL Application pursuant to s. 186(2) of the MRA. Section 186(2) of the MRA provides that the Minister may refuse to grant an MDL application “if the Minister considers the grant is not in the public interest”. The Minister considered that the grant of the MDL Application was not in the public interest.[4] The Minister provided reasons for the Decision on 22 April 2022 (Reasons).[5][1]Affidavit of Peter Stokes filed 20 May 2022 (Stokes affidavit), [17]; PWS-14 at p. 401. [2]Applicants’ Statement of Facts, Issues and Contentions (ASFIC) at [3]; Respondent’s Statement of Facts, Issues and Contentions (RSFIC) at [3]; Stokes affidavit at [4]; PWS-1 at pp. 1-66.[3]ASFIC at [4]; RSFIC at [4].[4]Stokes affidavit, PWS-14 at p. 401.[5]Stokes affidavit, PWS-16 at pp. 407-416. It is not in dispute that: (a)the Decision was:[6] (i)of an administrative character; (ii)made under an enactment, the MRA; and (iii)a decision to which the JRA applies within the meaning of s. 4 of the JRA, and (b)the applicants are persons aggrieved by the Decision to which the JRA applies within the meaning of s. 20(1) of the JRA.[7][6]ASFIC at [42]; RSFIC at [42]. [7]ASFIC at [43]; RSFIC at [43]. The applicants advance four grounds for the judicial review application: (a)the Minister failed to approach his task in accordance with the legislative requirements leading him into legal error (that is, the Decision involved an error of law: s. 20(2)(f) of the JRA); (b)the Minister failed to take account of relevant considerations (that is, the Decision involved an improper exercise of power in that the Minister failed to take into account considerations that were relevant to the making of the Decision: ss. 20(2)(e) and 23(b) of the JRA); (c)the Minister took account of irrelevant considerations (that is, the Decision involved an improper exercise of power in that the Minister took into account considerations that were irrelevant to the making of the Decision: ss. 20(2)(e) and 23(a) of the JRA); (d)the Decision was so unreasonable that no reasonable person could have so exercised the power (that is, the exercise of power by the Minister in making the Decision was so unreasonable that no reasonable person could have so exercised the power: ss. 20(2)(e) and 23(g) of the JRA). Central to all of the grounds advanced by the applicants is one legal issue: what did an assessment by the Minister of the “public interest” under s. 186(2) of the MRA require? It then falls to consider whether the Minister complied with those requirements (a factual issue).

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.