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New Acland Coal Pty Ltd v Smith

New Acland Coal Pty Ltd v Smith

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SUPREME COURT OF QUEENSLAND

CITATION:

New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88

PARTIES:

NEW ACLAND COAL PTY LTD ACN 081 022 380

(Applicant)

v

PAUL ANTHONY SMITH, MEMBER OF THE LAND COURT OF QUEENSLAND

(First Respondent)

and

OAKEY COAL ACTION ALLIANCE INC

(Second Respondent)

and

CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION

(Third Respondent)

FILE NO:

BS No 6002 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application for a statutory order of review

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

2 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

19, 20, 21, 22 and 23 March 2018

JUDGE:

Bowskill J

ORDER:

For the reasons published today, the Court finds the following grounds in the amended application for review have been established, with the consequence that it will be appropriate to order that the decision made by the Land Court on 31 May 2017 be set aside, and the matter referred back to the Land Court for further consideration:

1.       Ground 10, in relation to groundwater.

2.       Ground 7, in relation to intergenerational equity, consequent upon the conclusion in relation to ground 10.

3.       Ground 1(aii) (by reference to particulars (i), (iiA) and (ii)), in relation to noise.

The parties are directed to make submissions in relation to the appropriate orders and directions to be made under s 30 of the Judicial Review Act 1991, having regard to the reasons published today, and in relation to the “statement of agreed course of action following decision of 14 February 2018” and in relation to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – BIAS – APPREHENSION OF BIAS – where a hearing took place on 2 February 2017, within the course of the proceeding, as a result of concerns raised by the first respondent with the applicant, in relation to media reports interpreted by the first respondent as conveying the imputation that delays in finalising the proceeding were attributable to the first respondent taking leave, which in turn was the potential cause of job losses in the community – whether a fair-minded lay observer might reasonably apprehend that the first respondent felt personally disrespected and offended by the media reports and by his Honour’s perception of the applicant’s actions in contributing to the media reports, and as a result, had a negative view of the applicant’s corporate conduct, which might have affected the first respondent’s ability to assess the issue of the media reports, and the applicant’s actions in relation to them, objectively – whether there is a logical connection between that matter, and the possibility of a departure from impartial decision-making, having regard to the reasons given by the first respondent for his decision to recommend refusal of the mining lease applications and application to amend the environmental authority – whether the applicant waived the right to any objection, on the basis of the circumstances and conduct of the 2 February 2017 hearing, by failing to take action immediately –…

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: [2018] QSC 88
Decision Date: 2 May 2018

CaseChat Overview and Summary

New Acland Coal Pty Ltd sought judicial review of a decision by the Land Court of Queensland to recommend refusal of applications for mining lease renewals and an environmental authority. The decision was based on findings that the proposed mining operations could affect groundwater supplies for generations, breach the principle of intergenerational equity, and require more stringent noise limits. The applicant argued the Land Court erred in considering groundwater impacts, intergenerational equity, and noise limits, and that the Land Court had not properly considered the legal framework governing the expanded mine, including the need for an associated water licence under the Water Act. The Land Court also failed to adequately address the applicant’s argument regarding the operation of the Water Act provisions.

The primary legal issues before the court were whether the Land Court had jurisdiction to consider the impact of the proposed mining operations on groundwater supplies, whether the Land Court properly exercised its discretion in recommending refusal of the applications, and whether the Land Court adequately addressed the applicant’s arguments regarding the legal framework governing the expanded mine. The court considered whether the Land Court had jurisdiction to consider the prior conduct of the Department of Environment and Heritage Protection and the applicant’s past compliance with its existing environmental authority. The court also considered whether the Land Court provided adequate reasons for its decision.

The court found that the Land Court had jurisdiction to consider the impact of the proposed mining operations on groundwater supplies, but that it had not properly exercised its discretion in recommending refusal of the applications. The court found that the Land Court had failed to adequately address the applicant’s argument regarding the operation of the Water Act provisions, and that it had not properly exercised its discretion in considering intergenerational equity and noise limits. The court found that the Land Court had not adequately articulated its reasons for rejecting the applicant’s argument regarding the legal framework governing the expanded mine.

The court set aside the decision of the Land Court and referred the matter back for further consideration. The court directed the parties to make submissions in relation to the appropriate orders and directions to be made under the Judicial Review Act 1991, and in relation to costs.

Orders

Orders of the court

For the reasons published today, the Court finds the following grounds in the amended application for review have been established, with the consequence that it will be appropriate to order that the decision made by the Land Court on 31 May 2017 be set aside, and the matter referred back to the Land Court for further consideration:

1. Ground 10, in relation to groundwater.

2. Ground 7, in relation to intergenerational equity, consequent upon the conclusion in relation to ground 10.

3. Ground 1(aii) (by reference to particulars (i), (iiA) and (ii)), in relation to noise.

The parties are directed to make submissions in relation to the appropriate orders and directions to be made under s 30 of the Judicial Review Act 1991, having regard to the reasons published today, and in relation to the “statement of agreed course of action following decision of 14 February 2018” and in relation to costs.

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:	New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88
PARTIES:	NEW ACLAND COAL PTY LTD ACN 081 022 380 (Applicant) v PAUL ANTHONY SMITH, MEMBER OF THE LAND COURT OF QUEENSLAND (First Respondent) and OAKEY COAL ACTION ALLIANCE INC (Second Respondent) and CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION (Third Respondent)
FILE NO:	BS No 6002 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application for a statutory order of review
ORIGINATING COURT:	Land Court of Queensland
DELIVERED ON:	2 May 2018
DELIVERED AT:	Brisbane
HEARING DATE:	19, 20, 21, 22 and 23 March 2018
JUDGE:	Bowskill J
ORDER:	For the reasons published today, the Court finds the following grounds in the amended application for review have been established, with the consequence that it will be appropriate to order that the decision made by the Land Court on 31 May 2017 be set aside, and the matter referred back to the Land Court for further consideration: 1. Ground 10, in relation to groundwater. 2. Ground 7, in relation to intergenerational equity, consequent upon the conclusion in relation to ground 10. 3. Ground 1(aii) (by reference to particulars (i), (iiA) and (ii)), in relation to noise. The parties are directed to make submissions in relation to the appropriate orders and directions to be made under s 30 of the Judicial Review Act 1991, having regard to the reasons published today, and in relation to the “statement of agreed course of action following decision of 14 February 2018” and in relation to costs.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – BIAS – APPREHENSION OF BIAS – where a hearing took place on 2 February 2017, within the course of the proceeding, as a result of concerns raised by the first respondent with the applicant, in relation to media reports interpreted by the first respondent as conveying the imputation that delays in finalising the proceeding were attributable to the first respondent taking leave, which in turn was the potential cause of job losses in the community – whether a fair-minded lay observer might reasonably apprehend that the first respondent felt personally disrespected and offended by the media reports and by his Honour’s perception of the applicant’s actions in contributing to the media reports, and as a result, had a negative view of the applicant’s corporate conduct, which might have affected the first respondent’s ability to assess the issue of the media reports, and the applicant’s actions in relation to them, objectively – whether there is a logical connection between that matter, and the possibility of a departure from impartial decision-making, having regard to the reasons given by the first respondent for his decision to recommend refusal of the mining lease applications and application to amend the environmental authority – whether the applicant waived the right to any objection, on the basis of the circumstances and conduct of the 2 February 2017 hearing, by failing to take action immediately –…