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

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”).

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.

Some history is necessary.

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.

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…

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.

Continue reading Shaw v Barker

Details

AGLC: Shaw v Barker [2000] QSC 456
Case: [2000] QSC 456
Decision Date: 29/11/2000

CaseChat Overview and Summary

The case of Shaw v Barker & Ors involved an application for judicial review brought by Geoffrey Charles Shaw against Noel Barker, the Minster for Mines and Energy, RAG Australia Coal Pty Ltd, and Pelsoil NL. The applicant sought to challenge the Minister's decision to approve the assignment of a 95% interest in Mining Lease No 70109 from Pelsoil NL to RAG Australia Coal Pty Ltd. The central issue was whether the applicant was an "aggrieved person" under Section 7 of the Judicial Review Act 1994, which would confer upon him the right to seek judicial review of the Minister's decision.

The court examined whether the applicant's interests were adversely affected by the Minister's decision to the extent that he could be considered "aggrieved." The applicant argued that the assignment of the mining lease to a new entity would lead to unlawful mining activities, potentially damaging his property, the Burton Homestead. This argument was based on the assumption that the approval of amendments to the environmental management overview strategy (EMOS) allowing underground mining was unlawful and that the new entity would not be bound by the compensation agreement previously entered into with Portman Mining Ltd.

Dutney J found that while the applicant's premises that the approval of the lease assignment could lead to unlawful mining and potential damage to his property were accepted, the identity of the entity conducting the mining was irrelevant to the applicant's standing. The applicant's grievances seemed to be rooted in the potential consequences of the mining activities rather than the assignee's suitability to perform the obligations under the mining lease. The court also dismissed the argument that the applicant's standing was tied to the third respondent's non-compliance with the compensation agreement, as the agreement was between Portman, the applicant, and another party, and there was no suggestion that Portman would be released from its obligations.

Ultimately, the Supreme Court of Queensland dismissed the applicant's application for judicial review, holding that the applicant did not meet the criteria of an "aggrieved person" as defined by the Judicial Review Act. The court ordered that the application be dismissed, and the applicant was to pay the respondents' costs of the application to be assessed on the standard basis.

Orders