Oaky Creek Coal Pty Ltd v Brodsky - [2017] QSC 188

SUPREME COURT OF QUEENSLAND

CITATION:

Oaky Creek Coal Pty Ltd v Brodsky & others [2017] QSC 188

PARTIES:

OAKY CREEK COAL PTY LTD

(applicant)

v

CENTRAL HIGHLANDS REGIONAL COUNCIL

(first respondent)

CHRISTOPHER IAIN BRODSKY

(second respondent)

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

(third respondent)

MAGISTRATE J R CLARKE

(fourth respondent)

FILE NO:

BS8347/17

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

5 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

4 September 2017

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1. An order in the nature of certiorari is made quashing the order made by the Magistrates Court at Rockhampton on 11 August 2017.

2. The application for an order under s 12 of the Peaceful Assembly Act 1992 (Qld) be remitted to the Magistrates Court at Emerald.

3. The public assembly held from 13 August 2017 until the making of this order under the assembly notice given on 27 July 2017 is declared to have been an authorised assembly within the meaning of section 7 of the Peaceful Assembly Act 1992 (Qld).

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the second respondent as organiser for the third respondent as an organisation gave notice of intention to hold a public assembly under s 8 of the Peaceful Assembly Act 1992 (Qld) – where the first respondent brought an application under s 12 of the Peaceful Assembly Act 1992 (Qld) for refusal to authorise the public assembly – where prior to the hearing the first, second and third respondents agreed on an order setting conditions for the public assembly – where the Magistrates Court at Rockhampton made the agreed orders at the hearing of the application – where the applicant was not able to appear at the hearing of the application despite contacting the Court to communicate their desire to attend – whether an order in the nature of certiorari should be made quashing the decision of the Magistrates Court at Rockhampton

Acts Interpretation Act 1954 (Qld), s 32C
Judicial Review Act 1991 (Qld), s 4, s 41
Magistrates Court Act 1921 (Qld), s 43
Peaceful Assembly Act 1992 (Qld), s 5, s 6, s 7, s 8, s 9, s 10, s 12, s 16

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, applied
Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493, applied
Badenach v Calvert (2016) 257 CLR 440, cited
Bateman’s Bay Local Aboriginal Council v Aboriginal Community Benefit Fund (1998) 194 CLR 247, cited
Bechtel Construction (Australia) Pty Ltd v Construction Forestry Mining and Energy Union [2015] FCA 778, cited
Bread Manufacturers of NSW v Evans (1981) 180 CLR 404, cited
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297, followed
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 333 ALR 384, cited
Evans v Donaldson (1909) 9 CLR 140, cited

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: [2017] QSC 188
Decision Date: 5 September 2017

CaseChat Overview and Summary

The case of Oaky Creek Coal Pty Ltd v Brodsky involved the applicant, Oaky Creek Coal Pty Ltd, seeking judicial review of a decision made by the Magistrates Court at Rockhampton. The decision in question arose from an application made by Oaky Creek Coal under section 12 of the Peaceful Assembly Act 1992 (Qld) for refusal to authorise a public assembly organised by the second respondent on behalf of the third respondent. Despite Oaky Creek Coal's attempt to attend the hearing, they were unable to do so, although they had communicated their intent to the Court. The central issue before the court was whether an order in the nature of certiorari should be made to quash the decision of the Magistrates Court at Rockhampton.

In addressing the legal issues, the court considered whether the absence of the applicant from the hearing without fault on their part rendered the proceedings and subsequent decision by the Magistrates Court irregular and, therefore, reviewable. The court found that the absence of the applicant from the hearing, despite their communication of intent to participate, constituted a procedural irregularity. This irregularity, in the court's view, was significant enough to invalidate the decision made by the Magistrates Court. Consequently, the court concluded that an order in the nature of certiorari was warranted to quash the decision and to address the procedural flaws.

The court's decision not only quashed the order made by the Magistrates Court but also directed that the application for an order under section 12 of the Peaceful Assembly Act be remitted to the Magistrates Court at Emerald for further consideration. Additionally, the court declared the public assembly held from 13 August 2017, under the assembly notice given on 27 July 2017, to have been an authorised assembly within the meaning of section 7 of the Peaceful Assembly Act 1992 (Qld). This decision underscores the importance of procedural fairness and the right to be heard in administrative law contexts.

Orders

Orders of the court

The order of the court is that:

1. An order in the nature of certiorari is made quashing the order made by the Magistrates Court at Rockhampton on 11 August 2017.

2. The application for an order under s 12 of the Peaceful Assembly Act 1992 (Qld) be remitted to the Magistrates Court at Emerald.

3. The public assembly held from 13 August 2017 until the making of this order under the assembly notice given on 27 July 2017 is declared to have been an authorised assembly within the meaning of section 7 of the Peaceful Assembly Act 1992 (Qld).

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:	Oaky Creek Coal Pty Ltd v Brodsky & others [2017] QSC 188
PARTIES:	OAKY CREEK COAL PTY LTD (applicant) v CENTRAL HIGHLANDS REGIONAL COUNCIL (first respondent) CHRISTOPHER IAIN BRODSKY (second respondent) CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (third respondent) MAGISTRATE J R CLARKE (fourth respondent)
FILE NO:	BS8347/17
DIVISION:	Trial Division
PROCEEDING:	Originating Application
DELIVERED ON:	5 September 2017
DELIVERED AT:	Brisbane
HEARING DATE:	4 September 2017
JUDGE:	Jackson J
ORDER:	The order of the court is that: 1. An order in the nature of certiorari is made quashing the order made by the Magistrates Court at Rockhampton on 11 August 2017. 2. The application for an order under s 12 of the Peaceful Assembly Act 1992 (Qld) be remitted to the Magistrates Court at Emerald. 3. The public assembly held from 13 August 2017 until the making of this order under the assembly notice given on 27 July 2017 is declared to have been an authorised assembly within the meaning of section 7 of the Peaceful Assembly Act 1992 (Qld).
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the second respondent as organiser for the third respondent as an organisation gave notice of intention to hold a public assembly under s 8 of the Peaceful Assembly Act 1992 (Qld) – where the first respondent brought an application under s 12 of the Peaceful Assembly Act 1992 (Qld) for refusal to authorise the public assembly – where prior to the hearing the first, second and third respondents agreed on an order setting conditions for the public assembly – where the Magistrates Court at Rockhampton made the agreed orders at the hearing of the application – where the applicant was not able to appear at the hearing of the application despite contacting the Court to communicate their desire to attend – whether an order in the nature of certiorari should be made quashing the decision of the Magistrates Court at Rockhampton Acts Interpretation Act 1954 (Qld), s 32C Judicial Review Act 1991 (Qld), s 4, s 41 Magistrates Court Act 1921 (Qld), s 43 Peaceful Assembly Act 1992 (Qld), s 5, s 6, s 7, s 8, s 9, s 10, s 12, s 16 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, applied Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493, applied Badenach v Calvert (2016) 257 CLR 440, cited Bateman’s Bay Local Aboriginal Council v Aboriginal Community Benefit Fund (1998) 194 CLR 247, cited Bechtel Construction (Australia) Pty Ltd v Construction Forestry Mining and Energy Union [2015] FCA 778, cited Bread Manufacturers of NSW v Evans (1981) 180 CLR 404, cited Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297, followed Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 333 ALR 384, cited Evans v Donaldson (1909) 9 CLR 140, cited