Lonergan v Stilgoe

Case [2020] QSC 86

SUPREME COURT OF QUEENSLAND

CITATION:

Lonergan v Stilgoe & Ors [2020] QSC 86

PARTIES:

PATRICK JOSEPH LONERGAN AND PRUE MADELINE LONERGAN

(applicant)

v
PETA G STILGOE, OAM, MEMBER OF THE LAND COURT OF QUEENSLAND
(first respondent)
GERALD DAVID GEORGE SKILTON
(second respondent)
DIRECTOR GENERAL, DEPARTMENT OF ENVIRONMENT AND SCIENCE

(third respondent)

FILE NO/S:

BS No 7386 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application for a statutory order of review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

 23 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2020; 2 April 2020

JUDGE:

Applegarth J

ORDER:

1.   The further amended application for a statutory order of review filed 23 March 2020 is dismissed.

2.   Any submissions as to costs are to be made within 14 days.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where s 252A of the Mineral Resources Act 1989 (Qld) requires an applicant for a mining lease to give certain documents and information to affected persons - where s 252B of the Mineral Resources Act 1989 (Qld) requires an applicant for a mining lease to give a statutory declaration that they have complied with s 252A - where the Land Court made a recommendation that a mining lease be granted to the second respondent – where the applicant submits that the second respondent did not comply with s 252A and s 252B – where the applicant submits that the Land Court’s decision was not authorised because there was no evidence that a s 252B declaration was given - whether there was a basis for the Land Court be satisfied of compliance with s 252A – whether compliance with s 252B is a jurisdictional fact

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the applicant objected to the grant of a mining lease on the ground that the proposed mining activities would have certain adverse environmental impacts – where the applicant submits that the Land Court failed to consider the impact of the proposed mining lease on the local koala habitat – where the applicant’s objection did not refer to a loss of koala habitat – whether the Land Court was precluded from considering a submission about loss of koala habitat

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the Land Court did not consider evidence in relation to the proposed mining lease area being an essential habitat for koalas – where the Land Court Member did not advise the parties in advance of delivering reasons that such evidence would not be considered – whether failing to advise the parties was a breach of procedural fairness

Environmental Protection Act 1994 (Qld), s 152
Mineral Resources Act 1989 (Qld), s 252, s 252A, s 252B,
s 268(3), s 269(4)

ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2002] 1 Qd R 347; [2001] QCA 119, cited
BHP Billiton Nickel West Pty Ltd…

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Lonergan v Stilgoe [2020] QSC 86
Case
[2020] QSC 86
Decision Date

CaseChat Overview and Summary

Lonergan v Stilgoe involves a dispute regarding the granting of a mining lease. The applicants, the Lonergans, sought judicial review of a decision by the Land Court to recommend the granting of a mining lease to the third respondent. They argued that the Land Court did not have the requisite evidence to be satisfied of the third respondent's compliance with statutory requirements to inform affected persons of the mining lease application, and that the Land Court failed to consider the impact of the proposed mining lease on the local koala habitat. The applicants also argued that the Land Court breached procedural fairness by not advising the parties in advance that it would not consider certain evidence.

The court considered whether the Land Court had the requisite evidence to be satisfied of the third respondent's compliance with statutory requirements, whether compliance with those statutory requirements was a jurisdictional fact, and whether the Land Court breached procedural fairness by not advising the parties that certain evidence would not be considered. The court found that the Land Court was not obliged to raise the issue before making its decision in order to accord procedural fairness and, even if it had been, the applicants had not established that providing them with the opportunity would have made any material difference. The court also found that there was a basis for the Land Court to be satisfied of compliance with the statutory requirements and that compliance with those requirements was not a jurisdictional fact.

The court dismissed the applicants' application for judicial review and directed the parties to make any submissions as to costs within 14 days. Absent any consent order as to costs, if no submissions as to costs are made within that time, there will be no order as to costs.

Orders

Orders of the court

1. The further amended application for a statutory order of review filed 23 March 2020 is dismissed.

2. Any submissions as to costs are to be made within 14 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am not persuaded that the Land Court was obliged to raise the issue before making its decision in order to accord procedural fairness. However, if I had reached that conclusion, the Lonergans have not established that providing them with the opportunity would have made any material difference. Even if a court is satisfied that there has been a denial of natural justice, relief may be denied if it can be shown that compliance with the requirements of natural justice could have made no difference to the outcome.[32] In my view, this is such a case.[32]John Holland Pty Ltd v TAC Pacific Pty Ltd [2010] 1 Qd R 302 at 315-316 [40].Conclusion The Lonergans have not established their grounds for judicial review. Their application will be dismissed. I will allow the parties some time to resolve any issue of costs. I am conscious that Mr Skilton is self-represented and seemingly has not incurred any legal costs. The first respondent abided the order of the Court and seemingly does not seek any order as to costs. Any remaining issue as to costs will be between the applicant and the third respondent. Absent any consent order as to costs, I will direct the parties to make any submissions as to costs within 14 days. If no submissions as to costs are made within that time, there will be no order as to costs.

Ratio Decidendi

Legal Principle Established

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