Shaw v Barker

[2000] QSC 456

SUPREME COURT OF QUEENSLAND

CITATION:                  Shaw v Barker & Ors [2000] QSC             

PARTIES:  GEOFFREY CHARLES SHAW

(Applicant)

v

NOEL BARKER

(First Respondent)

THE MINSTER FOR MINES & ENERGY

(Second Respondent)

RAG AUSTRALIA COAL PTY LIMITED

(Third Respondent)

PELSOIL NL

(Fourth Respondent)

FILE NO:  S99 of 2000

DIVISION:                   Trial

DELIVERED ON:       29 November 2000

DELIVERED AT:        Mackay

HEARING DATES:     27 November 2000

JUDGE:  Dutney J

ORDER:Application dismissed and applicant to pay the respondent’s costs of the application to be assessed on the standard basis 

CATCHWORDS: JUDICIAL REVIEW – LOCUS STANDI – whether applicant is an “aggrieved person” pursuant to Section 7 of the Judicial Review Act 1994

Judicial Review Act 1994 s 48, s 7

Mineral Resources Act 1989 s 270A, s 276(1)( c) and (e), s 279, s 300(1), (4), (6) and (10)

Property Law Act 1974 s 55

Queensland Newsagents Federation Ltd v TPC (1993) 46 FCR 38, followed

Right to Life Association (NSW) Inc v Dept Human Services and Heath (1994) 125 ALR 337, followed

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, discussed

Re Androma Pty Ltd (in liq.) [1987] 2 Qd R 134, followed

COUNSEL:HJ Zillman for the applicant

MD Hinson SC for the first and second respondents
  PV Ambrose for the third and fourth respondents

SOLICITORS:             Wright Wright & Condie for the application

Crown Solicitor for the first and second respondents

Clayton Utz for the third and fourth respondents

1. DUTNEY, J:  Geoffrey Charles Church (“the applicant) has sought judicial review of a decision of the Minister for Mines and Energy (“the second respondent”) to approve the assignment of a 95% interest in Mining Lease No 70109 from Pelsoil NL (“the fourth respondent”) to RAG Australia Coal Pty Ltd (“the third respondent”).

1. Each of the four respondents has applied under s 48 of the Judicial Review Act 1994 to dismiss the summarily. The principle ground for that application is that the applicant is not a “person aggrieved” by the decision. Section 7 of the Judicial Review Act defines such a person to include relevantly a person whose interests are adversely affected by the decision.

1. Some history is necessary.

1. The applicant is, or is one of, the proprietors of “Burton Downs”, a property near Mackay. In or about 1995 Portman Mining Ltd (“Portman”) applied for mining lease 70109, part of the surface area of which corresponded with Burton Downs. After negotiation a compensation agreement was entered into between the applicant and Portman pursuant to s 279 of the Mineral Resources Act 1989.

1. Relevantly for present purposes the compensation agreement provided:

(a)(By clause 3) that compensation of $2,200,000 would be paid by specified installments terminating on 31 March 1996.

(b)(By clause 4.1) that of the compensation sum $450,000 was wholly as compensation for the permanent loss of value and permanent damage and loss of permanent residency to the Burton Homestead then occupied by the applicant.

(c)(By clause 8.1) Portman was required to maintain the homestead in a structurally sound, good livable condition no less than at the time of the agreement whether or not Portman chose to make use of it.

(d)(By clause 12) Portman could assign its interest in the mining lease either wholly or in part on condition that the assignee entered into a covenant agreeing to be bound by the terms of the compensation agreement.

1. No issue arises in relation to the payment of monetary compensation.  I assume it was paid.

1. At some unspecified time Portman assigned 95% of its interest in the mining lease to the fourth respondent.  No issue arises in relation to that assignment.

1. Prior to the grant of a mining lease the applicant for the lease must have an environmental management overview strategy (“EMOS”) approved by the Minister (MRA s 270A).  The miner must then submit to the Minister a plan of operations (“plan”) and an environmental audit statement confirming the plan is consistent with the EMOS.  In this case the EMOS allowed for open cut mining only.

1. In or about October or November 1999 the Minister purported to approve amendments to the EMOS to allow underground mining. On 3 December 1999 the applicant brought proceedings under the Judicial review Act (S154/99) to set aside that decision. Those proceedings have not yet been determined. The real concern of the applicant in brining those proceedings was that underground mining could undermine and structurally damage Burton Homestead. The principal ground for the application was the lack of jurisdiction to approve the amendment. For the purposes of the present strike out application I assume the success of the application in S154/99.

1. On 4 November 1999 the Minister gave conditional consent to the fourth respondent to transfer its 95% interest in the Mining Lease to the third respondent.  Those conditions were met and on 21 March 2000 the Acting Mining Registrar (the first respondent) advised the third respondent in writing of approval to its holding 95% interest in the Mining Lease.

1. An issue arose as to the effective date of the approval, i.e. whether it was effective from 4 November 1999 or from 21 March 2000.  The significance of the date was said to be that if it were the latter the approval was given in the face of advice from Crown Law that the application to judicially review the decision to amend the EMOS was likely to succeed: Afft Houen ex “B”.  The suggested consequence of that application being successful would be that the plan would no longer be consistent with the EMOS and the mining being carried out on Burton Downs would be unlawful (see MRA s 276(1)(c)).  Whether or not the success of the earlier judicial review application would result in the consequences submitted involves factual issues.  I do not have the benefit of seeing either the original or the amended EMOS or the plan.  It is neither possible nor appropriate for me to resolve those issues.  For the purposes of the strike out application I will assume the consequence will be as submitted on behalf of the applicant.

1. All of the above is submitted by the applicant to lead to the following consequences:

“1.      The Compensation Agreement provided that mining be done   lawfully so that any breach of that becomes a breach of the mining   lease and a con-compliance with the Act;

2.When the third Respondent when into possession, before the          assignment was approved:

(a)it was mining unlawfully because it had no authority of a mining lease and it was in breach of section 300(1);

(b)because the amendments to the EMOS were unlawful, the subsidence posed a threat to the homestead because there was no commitment in the amended document to cater for subsidence; and

(c)the mine was being expanded unlawfully in reliance on the  amended EMOS.

As a result of those matters, the Applicant suffers damage.  In the case of     the homestead, there is a serious threat that damage will be caused”.

(Applicant’s written outline para 2.4)

1. As I indicated to counsel for the applicant during the hearing, I do not have any difficulty assuming the numbered propositions in favour of the applicant.  I cannot, however, understand how they can lead to the submission, “As a result of those matters, the Applicant suffers damage”.

1. As far as I can see the consent to assignment of the fourth respondent’s interest to the third respondent has, in itself, no effect on the applicant unless there is some feature of the third respondent which makes it unsuitable such as, for example, insufficient capital to allow it to perform its obligations under the mining lease.  Nothing of that sort is alleged.  Rather the complaint seems to be that what is being done will cause damage rather than who it is being done by.  Thus the identity of the miner is irrelevant.

1. An attempt was made to equate the adverse effect on interest necessary to make the applicant an aggrieved person with standing to have the decision reviewed with the fact that the third respondent would not be bound by the compensation agreement.  I cannot accept this proposition.

1. The compensation is an agreement between Portman, the applicant and Clarence Gilbert Shaw.  Portman must therefore be bound by it unless released by the landowners.  There is no suggestion