Hancock Coal Pty Ltd v Kelly - [2013] QLC 9

LAND COURT OF QUEENSLAND

CITATION: Hancock Coal Pty Ltd v Kelly & Ors [2013] QLC 9

PARTIES:
Hancock Coal Pty Ltd
(applicant)

v.

Kathryn Kelly, Paul and Janeice Anderson, Coast and Country Association of QLD Inc, Patricia Julien of Mackay Conservation Group, Fiorella Paola Cassoni, Bruce and Annette Currie, Allan and Rhonda Coyne, Maurice and Judith O’Dell
(respondents)

Chief Executive, Department of Environment and Heritage Protection
(Statutory Party)

FILE NOs:

MRA082-13 and EPA083-13

DIVISION: General Division

PROCEEDING: Application to read and file affidavit material

DELIVERED ON: 13 March 2013 [Ex tempore]

DELIVERED AT:
HEARD ON:

Brisbane

13 March 2013

HEARD AT: Brisbane

MEMBER: PA Smith

ORDERS:
1. Leave to file and read the two affidavits of Mr Zillman is not granted.

2. Leave to file and read the affidavit of Mr Taylor is granted.

CATCHWORDS:
Practice and Procedure – Conduct of parties – premature complaint as to ulterior motives – objectors right to their day in Court

Environmental Protection Act 1994

Land Court Act 2000, s.7

Mineral Resources Act 1989

APPEARANCES:
Mr Clothier of Counsel, for the applicant

Ms Kathryn Kelly, self-represented respondent

Mrs Janeice Anderson, self-represented respondent

Mr Finanzio of Counsel, for the respondent Coast and

Country Association of QLD Inc

Ms Fiorella Paola Cassoni, self-represented respondent

Mr George Houen, agent for the respondents:

Mr and Mrs Currie, Mr and Mrs Coyne and Mr and Mrs O’Dell

Ms Lynda Body, Principal Lawyer, for the Statutory Party

SOLICITORS:
Allens for the applicant

Environmental Defenders Office (QLD) Inc for the respondent Coast and Country Association QLD Inc

Legal Services, Department of Environment and Heritage Protection for the Statutory Party

[During the course of the review and directions hearing in this matter, (which is the referral of a mining lease application for ML70426 pursuant to the Mineral Resources Act 1989 and Environmental objections to ML70426 and draft EA MIN101017310 pursuant to Environmental Protection Act 1994), the applicant made an oral request to seek the Court's leave to file and read two affidavits of Mr Ben John Zillmann sworn on 11 and 12 March 2013 along with the affidavit of Mr Paul William Mason Taylor sworn on 11 March 2013. The request for leave with regards to the affidavits of Mr Zillmann was strongly opposed by objector Coast and Country Association QLD Inc. The affidavit of Mr Paul William Mason Taylor was granted leave to read and file.

The applicant, all level 3 objectors and Department of Environment and Heritage Protection (as the Statutory Party) were represented. All Level 3 objectors bar Mr and Mrs Anderson joined in the objection brought by Coast and Country Association of QLD Inc against Mr Zillman’s two affidavits being filed and read.

Mr Finanzio for Coast and Country Association of QLD Inc submitted that there was no evidence before the Court of any misconduct or delay on the part of Coast and Country Association of QLD Inc, and as such the affidavits of Mr Zillman, being based on that premise, were not relevant at this point…

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: [2013] QLC 9
Decision Date: 13 March 2013 [Ex tempore]

CaseChat Overview and Summary

Hancock Coal Pty Ltd, the applicant, sought to challenge the decision of an objector, Mr Kelly, to object to a proposed mining development. The dispute came before the Queensland Land Court, with Hancock Coal arguing that the objector's motives were improper and that the objection was therefore invalid. The primary issue for the court was whether the objector had a right to object to the proposed mining development, and whether the objector's motives were relevant to the validity of the objection. The court had to determine whether it was appropriate to consider evidence of the objector's motives at this stage of the proceedings, or whether this was a matter for a later stage of the legal process.

The court held that it was not appropriate to consider evidence of the objector's motives at this stage of the proceedings. The court found that the objector had a right to object to the proposed mining development, and that the validity of the objection was not dependent on the objector's motives. The court also held that it was inappropriate for the applicant to raise the issue of the objector's motives in this way, as it was a premature complaint that could be dealt with at a later stage of the proceedings. The court emphasised the importance of allowing objectors their day in court, and the need to avoid unnecessary delays in the legal process.

As a result of the court's decision, leave to file and read the two affidavits of Mr Zillman was not granted, as they related to the objector's motives. However, leave to file and read the affidavit of Mr Taylor was granted, as it did not relate to the objector's motives. The court's decision reinforced the importance of protecting the rights of objectors to participate in the legal process, and the need to avoid unnecessary delays and costs. The final orders of the court were that leave to file and read the two affidavits of Mr Zillman was not granted, and leave to file and read the affidavit of Mr Taylor was granted.

Orders

Orders of the court

1. Leave to file and read the two affidavits of Mr Zillman is not granted.

2. Leave to file and read the affidavit of Mr Taylor is granted.

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:	Hancock Coal Pty Ltd v Kelly & Ors [2013] QLC 9
PARTIES:	Hancock Coal Pty Ltd (applicant)
v.
Kathryn Kelly, Paul and Janeice Anderson, Coast and Country Association of QLD Inc, Patricia Julien of Mackay Conservation Group, Fiorella Paola Cassoni, Bruce and Annette Currie, Allan and Rhonda Coyne, Maurice and Judith O’Dell (respondents)
Chief Executive, Department of Environment and Heritage Protection (Statutory Party)
FILE NOs:	MRA082-13 and EPA083-13
DIVISION:	General Division
PROCEEDING:	Application to read and file affidavit material
DELIVERED ON:	13 March 2013 [Ex tempore]
DELIVERED AT: HEARD ON:	Brisbane 13 March 2013
HEARD AT:	Brisbane
MEMBER:	PA Smith
ORDERS:	1. Leave to file and read the two affidavits of Mr Zillman is not granted. 2. Leave to file and read the affidavit of Mr Taylor is granted.
CATCHWORDS:	Practice and Procedure – Conduct of parties – premature complaint as to ulterior motives – objectors right to their day in Court Environmental Protection Act 1994 Land Court Act 2000, s.7 Mineral Resources Act 1989
APPEARANCES:	Mr Clothier of Counsel, for the applicant Ms Kathryn Kelly, self-represented respondent Mrs Janeice Anderson, self-represented respondent Mr Finanzio of Counsel, for the respondent Coast and Country Association of QLD Inc Ms Fiorella Paola Cassoni, self-represented respondent Mr George Houen, agent for the respondents: Mr and Mrs Currie, Mr and Mrs Coyne and Mr and Mrs O’Dell Ms Lynda Body, Principal Lawyer, for the Statutory Party
SOLICITORS:	Allens for the applicant Environmental Defenders Office (QLD) Inc for the respondent Coast and Country Association QLD Inc Legal Services, Department of Environment and Heritage Protection for the Statutory Party