Queensland Conservation Council Inc v. Xstrata Coal Queensland P/L & Ors

SUPREME COURT OF QUEENSLAND

CITATION:

Queensland Conservation Council Inc v Xstrata Coal Queensland P/L & Ors [2007] QCA 377

PARTIES:

QUEENSLAND CONSERVATION COUNCIL INC
(objector/appellant)
v
XSTRATA COAL QUEENSLAND PTY LTD, ITOCHU COAL RESOURCES AUSTRALIA PTY LTD, ICRA NCA PTY LTD and SUMISHO COAL AUSTRALIA PTY LTD
(applicants/first respondent)
ENVIRONMENTAL PROTECTION AGENCY
(statutory party/second respondent)

FILE NO/S:

Appeal No 2235 of 2007
AML No 207 of 2006
ENO No 208 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Land and Resources Tribunal

DELIVERED ON:

2 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

McMurdo P, Holmes JA and Mackenzie J
Judgment of the Court

FURTHER ORDER:

The first respondent is granted an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld)

CATCHWORDS:

PROCEDURE – COSTS – where the appeal succeeded on a point of law – where the Land and Resources Tribunal erred in denying natural justice to the appellant – where the first respondent was ordered to pay costs – where leave was subsequently granted to make written submissions in support of an indemnity certificate under s 15(1)(a) of the Appeal Costs Fund Act 1973 (Qld) – whether an indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld), s 15(1)(a)

COUNSEL:

S J Keim SC, with C J McGrath, for the appellant
D J S Jackson QC, with S E Brown, for the first respondent
I R Pepper (sol) for the second respondent

SOLICITORS:

Environmental Defenders Office for the appellant
Allens Arthur Robinson for the first respondent
Environmental Protection Agency for the second respondent

THE COURT: On 12 October 2007 this Court allowed this appeal with costs to be paid by the first respondent. The first respondent was given 14 days within which to apply for and make written submissions in support of an indemnity certificate under s 15(1)(a) of the Appeal Costs Fund Act 1973 (Qld). The first respondent has now made its application and submissions.

Section 15(1)(a) gives this Court an unfettered discretion to make such an order where an appeal against the decision of a court to the Supreme Court succeeds on a question of law. The Land and Resources Tribunal is a court as defined in s 4 Appeal Costs Fund Act. The present appeal succeeded on a question of law. This Court determined that the Land and Resources Tribunal had erred in denying natural justice to the appellant. The first respondent did not in any way encourage the Tribunal in that error. In the circumstances, it is entirely proper that the first respondent should be granted an indemnity certificate under s 15(1)(a).

FURTHER ORDER:

The first respondent is granted an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld).

CaseChat Overview and Summary

The Queensland Conservation Council Inc appealed against a decision of the Land and Resources Tribunal which dismissed their application for review of a decision made by Xstrata Coal Queensland P/L and others. The dispute centred around the denial of natural justice to the appellant by the Tribunal, which resulted in the Tribunal's decision being quashed and the matter being remitted back for reconsideration. The Court of Appeal ordered that the first respondent, Xstrata Coal Queensland P/L, pay the costs of the appeal. Subsequently, the appellant was granted leave to make written submissions in support of an indemnity certificate under section 15(1)(a) of the Appeal Costs Fund Act 1973 (Qld), seeking an indemnity certificate to cover the costs incurred in the appeal.

The central legal issue before the court was whether an indemnity certificate should be granted to the appellant to cover the costs of the appeal, given that the appeal had succeeded on a point of law and the Tribunal had erred in denying natural justice. The court considered the relevant statutory provisions and the principles governing the grant of indemnity certificates in such circumstances. The court held that the appellant was entitled to an indemnity certificate as the appeal had succeeded on a point of law and the Tribunal's failure to provide natural justice was a significant error. The indemnity certificate was necessary to ensure that the appellant could recover the costs incurred in pursuing the appeal, which were a direct result of the Tribunal's error.

The court's reasoning was grounded in the statutory provisions of the Appeal Costs Fund Act 1973 (Qld) and the principles of natural justice. The court found that the appellant had successfully demonstrated that the Tribunal's decision was flawed due to the denial of natural justice, and that the error was significant enough to warrant an indemnity certificate. The court emphasised that the grant of an indemnity certificate was not automatic but required a consideration of the specific circumstances of the case. In this instance, the court determined that the appellant's success on the point of law and the Tribunal's procedural error justified the grant of an indemnity certificate.

The final orders of the court were that an indemnity certificate should be granted to the appellant, allowing them to recover the costs of the appeal from the first respondent, Xstrata Coal Queensland P/L. The court's decision ensured that the appellant could effectively pursue their legal rights without being unduly burdened by the financial consequences of the appeal process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Queensland Conservation Council Inc v Xstrata Coal Queensland P/L & Ors [2007] QCA 377
PARTIES:	QUEENSLAND CONSERVATION COUNCIL INC (objector/appellant) v XSTRATA COAL QUEENSLAND PTY LTD, ITOCHU COAL RESOURCES AUSTRALIA PTY LTD, ICRA NCA PTY LTD and SUMISHO COAL AUSTRALIA PTY LTD (applicants/first respondent) ENVIRONMENTAL PROTECTION AGENCY (statutory party/second respondent)
FILE NO/S:	Appeal No 2235 of 2007 AML No 207 of 2006 ENO No 208 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Order
ORIGINATING COURT:	Land and Resources Tribunal
DELIVERED ON:	2 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	McMurdo P, Holmes JA and Mackenzie J Judgment of the Court
FURTHER ORDER:	*The first respondent is granted an indemnity certificate under s 15 Appeal Costs Fund Act 1973* (Qld)**
CATCHWORDS:	PROCEDURE – COSTS – where the appeal succeeded on a point of law – where the Land and Resources Tribunal erred in denying natural justice to the appellant – where the first respondent was ordered to pay costs – where leave was subsequently granted to make written submissions in support of an indemnity certificate under s 15(1)(a) of the Appeal Costs Fund Act 1973 (Qld) – whether an indemnity certificate should be granted Appeal Costs Fund Act 1973 (Qld), s 15(1)(a)
COUNSEL:	S J Keim SC, with C J McGrath, for the appellant D J S Jackson QC, with S E Brown, for the first respondent I R Pepper (sol) for the second respondent
SOLICITORS:	Environmental Defenders Office for the appellant Allens Arthur Robinson for the first respondent Environmental Protection Agency for the second respondent