Land and Resources Tribunal v Schmidt - [2005] QCA 195

SUPREME COURT OF QUEENSLAND

CITATION:

Land and Resources Tribunal v Schmidt & Ors [2005] QCA 195

PARTIES:

LAND AND RESOURCES TRIBUNAL
(applicant)
v
MICHAEL DOLF SCHMIDT
SUSAN JOAN SCHMIDT
(first respondents)
AUSTRALIS MINING OPERATIONS QLD PTY LTD
(FORMERLY CALLED JUNIOR MINING (OPERATIONS) PTY LTD)
ACN 081 347 891

(second respondent)

FILE NO/S:

Appeal No 2454 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application - Civil

DELIVERED ON:

10 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2005

JUDGES:

Williams and Jerrard JJA and Mullins J

Judgment of the Court

ORDERS:

1. Originating application dismissed

2.          2. The applicant pay the first respondents’ costs of the

                 originating application to be assessed

3.          3. No order as to the second respondent’s costs of the

                 originating application

CATCHWORDS:

MINING LAW – COURTS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – where President of Land and Resources Tribunal determined application under s 281 Mineral Resources Act 1989 (Qld) – where respondent filed notice of appeal with Tribunal pursuant to s 282 raising questions of fact and law – whether s 282 provides for appeal from determination of President to the Tribunal (Appeal) – whether s 67 Land and Resources Tribunal Act 1999 (Qld) provides for appeal from determination of President to Court of Appeal

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – where President of Land and Resources Tribunal ordered pursuant to s 70(2) Land and Resources Tribunal Act 1999 (Qld) that Tribunal refer question of law to Court of Appeal – where Tribunal filed originating application in Court of Appeal referring question of law – whether President had power to make order – how question of law in proceeding before Tribunal should be referred to Court of Appeal

Appeal CostsFund Act 1973 (Qld), s 15(1)
Land and Resources Tribunal Act 1999 (Qld), s 67, s 70(2)
Mineral Resources Act 1989 (Qld) s 281, s 282
Uniform Civil Procedure Rules 1991 (Qld) r 781

Industrial Equity Ltd v Commissioner for Corporate Affairs (Vic) [1990] VR 780, considered

Mason v Mason (No 2) [1997] 1 VR 627, applied

COUNSEL:

M D Hinson SC for the applicant
D A Skennar for the first respondents

A C Barlow for the second respondent

SOLICITORS:

C W Lohe, Crown Solicitor for the applicant
Rees R & Sydney Jones for the first respondents

Hopgood Ganim for the second respondent

THE COURT: The Land and Resources Tribunal (“the Tribunal”) filed an originating application in the Court of Appeal on 24 March 2005 which stated that it was made pursuant to s 70(2) of the Land and Resources Tribunal Act 1999 (“LRTA”) for referral to the Court of Appeal of the following question:

“If the Land and Resources Tribunal, constituted by the President sitting alone, makes a determination under s.281 of the Mineral Resources Act 1989 (“the MRA”):

(a) Does s.282 MRA provide an avenue of appeal to the “Tribunal (appeal)” constituted in accordance with s.39 of the Land…

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.

Continue reading Land and Resources Tribunal v Schmidt

Details

AGLC: Land and Resources Tribunal v Schmidt [2005] QCA 195
Case: [2005] QCA 195
Decision Date: 10 June 2005

CaseChat Overview and Summary

In the case of Land and Resources Tribunal v Schmidt, the Tribunal was the applicant and sought to challenge the jurisdiction of the President of the Tribunal, who had determined an application under section 281 of the Mineral Resources Act 1989 (Qld). The respondent, Schmidt, had filed a notice of appeal with the Tribunal pursuant to section 282, raising questions of fact and law. The primary legal issues for the court were whether section 282 of the Mineral Resources Act 1989 (Qld) provided for an appeal from the determination of the President to the Tribunal and whether section 67 of the Land and Resources Tribunal Act 1999 (Qld) provided for an appeal from the determination of the President to the Court of Appeal.

The court examined the relevant statutory provisions and found that section 282 did not provide for an appeal from the determination of the President to the Tribunal. Instead, the court held that appeals from the President’s decisions were to be made directly to the Court of Appeal. The court also considered whether the President had the power to order that a question of law be referred to the Court of Appeal under section 70(2) of the Land and Resources Tribunal Act 1999 (Qld). The court concluded that the President did not have such power, and the proper procedure for referring a question of law was through an originating application filed by the Tribunal.

The court dismissed the originating application and ordered that the Tribunal pay the costs of the first respondent in the originating application, which was to be assessed. The court made no order as to the second respondent’s costs of the originating application. This decision clarified the appeal process within the Land and Resources Tribunal and reinforced the appropriate procedures for referring questions of law to the Court of Appeal.

Orders

Orders of the court

1. Originating application dismissed

2. 2. The applicant pay the first respondents’ costs of the

originating application to be assessed

3. 3. No order as to the second respondent’s costs of the

originating application

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:	Land and Resources Tribunal v Schmidt & Ors [2005] QCA 195
PARTIES:	LAND AND RESOURCES TRIBUNAL (applicant) v MICHAEL DOLF SCHMIDT SUSAN JOAN SCHMIDT (first respondents) AUSTRALIS MINING OPERATIONS QLD PTY LTD (FORMERLY CALLED JUNIOR MINING (OPERATIONS) PTY LTD) ACN 081 347 891 (second respondent)
FILE NO/S:	Appeal No 2454 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application - Civil
DELIVERED ON:	10 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	19 May 2005
JUDGES:	Williams and Jerrard JJA and Mullins J Judgment of the Court
ORDERS:	1. Originating application dismissed 2. 2. The applicant pay the first respondents’ costs of the originating application to be assessed 3. 3. No order as to the second respondent’s costs of the originating application
CATCHWORDS:	MINING LAW – COURTS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – where President of Land and Resources Tribunal determined application under s 281 Mineral Resources Act 1989 (Qld) – where respondent filed notice of appeal with Tribunal pursuant to s 282 raising questions of fact and law – whether s 282 provides for appeal from determination of President to the Tribunal (Appeal) – whether s 67 Land and Resources Tribunal Act 1999 (Qld) provides for appeal from determination of President to Court of Appeal PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – where President of Land and Resources Tribunal ordered pursuant to s 70(2) Land and Resources Tribunal Act 1999 (Qld) that Tribunal refer question of law to Court of Appeal – where Tribunal filed originating application in Court of Appeal referring question of law – whether President had power to make order – how question of law in proceeding before Tribunal should be referred to Court of Appeal Appeal CostsFund Act 1973 (Qld), s 15(1) Land and Resources Tribunal Act 1999 (Qld), s 67, s 70(2) Mineral Resources Act 1989 (Qld) s 281, s 282 Uniform Civil Procedure Rules 1991 (Qld) r 781 Industrial Equity Ltd v Commissioner for Corporate Affairs (Vic) [1990] VR 780, considered Mason v Mason (No 2) [1997] 1 VR 627, applied
COUNSEL:	M D Hinson SC for the applicant D A Skennar for the first respondents A C Barlow for the second respondent
SOLICITORS:	C W Lohe, Crown Solicitor for the applicant Rees R & Sydney Jones for the first respondents Hopgood Ganim for the second respondent