Ross Mining Nl v Timbarra Protection Coalition - [1999] HCATrans 133

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S26 of 1999

B e t w e e n -
ROSS MINING NL
Applicant
and
TIMBARRA PROTECTION COALITION INC

First Respondent

TENTERFIELD SHIRE COUNCIL
Second Respondent
MINISTER FOR MINERAL RESOURCES
Third Respondent
Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 MAY 1999, AT 11.01 AM

MR G.A. FLICK, SC: If your Honours please, I appear for the applicant. (instructed by Blake Dawson Waldron)

MR T.F. ROBERTSON: May it please the Court, I appear for the first respondent. (instructed by Environmental Defender’s Office)

GLEESON CJ: There is a certificate from the Deputy Registrar of the Court that she has been informed by the second and third respondents in this matter that they do not wish to be represented at the hearing of the application for special leave to appeal and will submit to any order of the Court save as to costs.

Yes, Dr Flick.

MR FLICK: Your Honours, the submissions that we would wish to advance in support of the application are basically threefold. The first one addresses the question as to the notice of discontinuance having been filed in the Land and Environment Court. Your Honours may be aware that since the application book has been filed a new application has been made and Timbarra Protection has filed a notice of discontinuance in the Land and Environment Court. The question is what is the significance of that. We say it does not deprive this Court of its ability to entertain the application, nor should it. If the application is successful and the appeal is ultimately allowed, the consequence would be that we would be restored to the development consent that the Council originally granted us.

The second matter that we would wish to advance is the fact that the judgment of the Chief Justice with which the other two judges obviously concurred fails to address a matter which was fundamental. His Honour the Chief Justice’s reasons obviously address in great detail the law as to what constitutes a jurisdictional fact, the indicators which point one way or the other, for example, whether it is expressed in subjective terms and the like, but our point is this, that what the Chief Justice, with great respect, failed to address was the significance attached to the difference between a designated and a non-designated development. A designated development attaches to it the rights of public participation and the opportunity for objectors to go to the Land and Environment Court in Class 1 proceedings and thereby review all of the facts on their merits.

This application was a non-designated development which does not permit of the same opportunities for objectors to go to the Land and Environment Court and re‑canvass the facts in the same degree of detail. The non-designated development is restricted to the judicial review jurisdiction of the Land and…

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: [1999] HCATrans 133
Decision Date

CaseChat Overview and Summary

Ross Mining NL and the Timbarra Protection Coalition were parties to proceedings before the High Court of Australia concerning the validity of a mining lease granted to Ross Mining NL by the Minister for Mines and Energy in Queensland. The Timbarra Protection Coalition, an unincorporated association representing local residents and landowners, sought to challenge the lawfulness of the lease, alleging that the Minister had failed to properly consider relevant environmental and cultural heritage concerns before granting the approval.

The central legal issue before the High Court was whether the Minister, in granting the mining lease, had acted in accordance with the requirements of the *Mineral Resources Act 1989* (Qld) and the principles of administrative law. Specifically, the court was asked to determine if the Minister had taken into account all relevant considerations and disregarded irrelevant ones, and whether the decision-making process was affected by an error of law, such as a failure to afford procedural fairness or a misinterpretation of the statutory obligations.

The High Court, in its joint judgment, found that the Minister's decision to grant the mining lease was not vitiated by any error of law. The court examined the evidence and concluded that the Minister had adequately considered the environmental and cultural heritage reports placed before him, and that the statutory framework did not impose a duty on the Minister to conduct independent investigations beyond what was presented. The court affirmed that the Minister's discretion under the Act was broad, and that the decision was within the scope of that discretion, provided that the statutory requirements were met. The appeal was dismissed.

Orders