McAvoy v Adani Mining Pty Ltd - [2014] QLC 32

LAND COURT OF QUEENSLAND

CITATION: McAvoy & Anor v Adani Mining Pty Ltd & Ors
[2014] QLC 32

PARTIES: Jah’shua McAvoy and Coedie McAvoy
(applicants)

v

Adani Mining Pty Ltd
(first respondent)

and

Land Services of Coast and Country Inc.
(second respondent)

and

Conservation Action Trust
(third respondent)

and

Chief Executive, Department of Environment and Heritage Protection
(statutory party)

FILE NO: EPA446-14

DIVISION: General Division

PROCEEDING: Application for inclusion as objector and/or party to proceedings

DELIVERED ON: 20 October 2014 [Ex tempore]

DELIVERED AT: Brisbane

HEARD ON: 20 October 2014

HEARD AT: Brisbane

ACTING PRESIDENT: PA Smith

ORDERS:
1.    Mr Coedie McAvoy’s application is dismissed.

2.    Mr Jah’shua McAvoy’s application to be made an objector under the Mineral Resources Act 1989 and the Environmental Protection Act 1994 is dismissed.

3. Mr Jah’shua McAvoy’s application to be made a party pursuant to s 186(d) of the Environmental Protection Act 1994 is allowed.

4.    Costs reserved.

CATCHWORDS:
Parties to proceedings – objections – time in which objections to be lodged – duly made objections
Jurisdiction of Land Court – court is a creature of statute – cannot exercise power to enhance jurisdiction
Party to environmental objections – matter of discretion – factors to be taken into account

Mineral Resources Act 1989
Environmental Protection Act 1994
Uniform Civil Procedure Rules 1999
Land Court Rules 2000

ACI Operations Pty Ltd v Quandomooka Lands Council Aboriginal Corporation (2002) 1 QdR 347
DeLacey v Juunyjuwarra People [2004] QCA 297
Gregcarbil Pty Ltd v Backus & Ors (2011) 32 QLCR 211
Henry v ERO Georgetown Gold Operations Pty Ltd [2014] QLC 21
Lee v Kokstad Mining Pty Ltd [2007] QCA 248

APPEARANCES: Mr LS Reidy, for the applicant
Mr P Ambrose QC and Mr M Johnson, instructed by McCullough Robertson, for the first respondent
Mr S Holt SC, instructed by the Environmental Defenders Office of Queensland, for the second respondent
Mr RA Quirk, instructed by Environmental Justice Australia, for the third respondent
Ms K Harbert, for the fourth respondent

Background

I have before me an application made by Jah’shua McAvoy and Coedie McAvoy in which they seek the following orders:
“1. An order that Jah’Shua McAvoy and Coedie McAvoy be parties to the following proceedings in the Court as Objectors: MRA428-14 & EPA429-14 (MLA 70441); MRA430-14 & EPA431-14 (MLA 70505); MRA432-14 & EPA433-14 (MLA 70506).
2. A declaration that Jah’Shua McAvoy and Coedie McAvoy be parties to the following proceedings in the Court as Objectors: MRA428-14 & EPA429-14 (MLA 70441); MRA430-14 & EPA431-14 (MLA 70505); MRA432-14 & EPA433-14 (MLA 70506).
3. The applicants be joined to the following proceedings in the Court: MRA428-14 & EPA429-14 (MLA 70441); MRA430-14 & EPA431-14 (MLA 70505); MRA432-14 & EPA433-14 (MLA 70506).
4. Such further or other orders as to the Court seem fit.”

I have had the benefit earlier today of detailed oral submissions, as well as written submissions, by a number of highly-skilled Counsel. In the short period of time that I have had to consider this matter since the…

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 McAvoy v Adani Mining Pty Ltd

Details

AGLC: McAvoy v Adani Mining Pty Ltd [2014] QLC 32
Case: [2014] QLC 32
Decision Date: 20 October 2014 [Ex tempore]

CaseChat Overview and Summary

McAvoy v Adani Mining Pty Ltd involves objections raised by Mr Coedie McAvoy and Mr Jah'shua McAvoy against a mining project proposed by Adani Mining Pty Ltd. The dispute was heard by the Queensland Civil and Administrative Tribunal (QCAT). Mr Coedie McAvoy sought to intervene in the objection process, while Mr Jah'shua McAvoy sought to be recognised as an objector under the Mineral Resources Act 1989 and the Environmental Protection Act 1994, as well as to be made a party to the proceedings under section 186(d) of the latter Act.

The primary legal issues before the court were whether Mr Coedie McAvoy's objections were lodged within the required time frame, the jurisdiction of QCAT, and the discretion of the court to allow Mr Jah'shua McAvoy to be recognised as an objector and a party to the proceedings. The court needed to determine whether the objections were lodged in time, whether QCAT could exercise its powers to enhance its jurisdiction, and what factors should be considered in deciding whether to allow Mr Jah'shua McAvoy to participate in the proceedings.

The court found that Mr Coedie McAvoy's objections were not lodged within the required time frame, and therefore his application was dismissed. The court also held that it could not exercise its powers to enhance its jurisdiction as it is a creature of statute. Regarding Mr Jah'shua McAvoy's applications, the court found that it was within its discretion to allow him to be made a party to the proceedings but that he should not be recognised as an objector. The court considered various factors, including Mr Jah'shua McAvoy's connection to the land and the public interest in the proceedings.

The final orders of the court were that Mr Coedie McAvoy's application was dismissed, Mr Jah'shua McAvoy's application to be made an objector under the Mineral Resources Act 1989 and the Environmental Protection Act 1994 was dismissed, Mr Jah'shua McAvoy's application to be made a party pursuant to section 186(d) of the Environmental Protection Act 1994 was allowed, and costs were reserved.

Orders

Orders of the court

1. Mr Coedie McAvoy’s application is dismissed.

2. Mr Jah’shua McAvoy’s application to be made an objector under the Mineral Resources Act 1989 and the Environmental Protection Act 1994 is dismissed.

3. Mr Jah’shua McAvoy’s application to be made a party pursuant to s 186(d) of the Environmental Protection Act 1994 is allowed.

4. Costs reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	McAvoy & Anor v Adani Mining Pty Ltd & Ors [2014] QLC 32
PARTIES:	Jah’shua McAvoy and Coedie McAvoy (applicants)
v
Adani Mining Pty Ltd (first respondent) and Land Services of Coast and Country Inc. (second respondent) and Conservation Action Trust (third respondent) and Chief Executive, Department of Environment and Heritage Protection (statutory party)
FILE NO:	EPA446-14
DIVISION:	General Division
PROCEEDING:	Application for inclusion as objector and/or party to proceedings
DELIVERED ON:	20 October 2014 [Ex tempore]
DELIVERED AT:	Brisbane
HEARD ON:	20 October 2014
HEARD AT:	Brisbane
ACTING PRESIDENT:	PA Smith
ORDERS:	1. Mr Coedie McAvoy’s application is dismissed. *2. Mr Jah’shua McAvoy’s application to be made an objector under the Mineral Resources Act 1989* and the Environmental Protection Act 1994 is dismissed. 3. Mr Jah’shua McAvoy’s application to be made a party pursuant to s 186(d) of the Environmental Protection Act 1994 is allowed. 4. Costs reserved.**
CATCHWORDS:	Parties to proceedings – objections – time in which objections to be lodged – duly made objections Jurisdiction of Land Court – court is a creature of statute – cannot exercise power to enhance jurisdiction Party to environmental objections – matter of discretion – factors to be taken into account Mineral Resources Act 1989 Environmental Protection Act 1994 Uniform Civil Procedure Rules 1999 Land Court Rules 2000 ACI Operations Pty Ltd v Quandomooka Lands Council Aboriginal Corporation (2002) 1 QdR 347 DeLacey v Juunyjuwarra People [2004] QCA 297 Gregcarbil Pty Ltd v Backus & Ors (2011) 32 QLCR 211 Henry v ERO Georgetown Gold Operations Pty Ltd [2014] QLC 21 Lee v Kokstad Mining Pty Ltd [2007] QCA 248
APPEARANCES:	Mr LS Reidy, for the applicant Mr P Ambrose QC and Mr M Johnson, instructed by McCullough Robertson, for the first respondent Mr S Holt SC, instructed by the Environmental Defenders Office of Queensland, for the second respondent Mr RA Quirk, instructed by Environmental Justice Australia, for the third respondent Ms K Harbert, for the fourth respondent