Sunland Cattle Co Pty Ltd v Kingham

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SUPREME COURT OF QUEENSLAND

CITATION:

Sunland Cattle Co Pty Ltd v Kingham & Ors [2021] QSC 287

PARTIES:

SUNLAND CATTLE CO PTY LTD

(applicant)

v
FLEUR KINGHAM - PRESIDENT OF THE LAND COURT OF QUEENSLAND

(first respondent)
PEMBROKE OLIVE DOWNS PTY LTD
(second respondent)
MINISTER FOR NATURAL RESOURCES, MINES AND ENERGY

(third respondent)

FILE NO/S:

BS No 9292 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

9 December 2020, further submissions filed 10 and 14 May 2021

JUDGE:

Martin J

ORDER:

1.   The application is dismissed.

2.   I will hear the parties on costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the Land Court recommended that the Minister grant four of the mining leases and that the fifth be granted with a reduced area – where the applicant submits that the Land Court was required to undertake an investigation into matters of public interest – the second respondent submits that the Land Court does not have a duty to investigate matters beyond the evidence presented to the Court – whether the Land Court failed to conduct the hearing as required by law

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the Land Court found, with respect to the impact on surface water users downstream of the mine, that “there is no evidence that other users will be adversely affected” – where the applicant submits that there was evidence about the likely adverse impacts on surface water users downstream – whether the Land Court’s decision failed to take into account a relevant consideration

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the applicant submits that the Land Court had a duty to make enquiries beyond the evidence regarding the downstream user issues – where the applicant submits that the Land Court should have directed the experts to “meaningfully consider the issue” – whether the Land Court’s decision was unavailable or unsupported by the evidence before the Court

Judicial Review Act 1991
Land Court Act 2000
Migration Act 1958 (Cth), s 424
Mineral Resources Act 1989, s 265, s 268, s 269, s 271A

Uniform Civil Procedure Rules 1999, r 211

ABT v Minister for Immigration and Border Protection (2020) 269 CLR 439
ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2002] 1 Qd R 347
BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors [2015] QSC 107
Dunn v Burtenshaw (2010) 31 QLCR 156
Lonergan v Stilgoe [2020] QSC 86
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 25
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15
Minister for Immigration v Yusuf (2001) 206 CLR 323
Oakey Coal Action…

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Details
Case
[2021] QSC 287
Decision Date

CaseChat Overview and Summary

In the case of Sunland Cattle Co Pty Ltd v Kingham, the applicant challenged a decision made by the Land Court regarding the granting of mining leases. The applicant argued that the Land Court had failed to observe statutory procedures, specifically by not investigating matters of public interest and not considering the potential adverse impacts on downstream surface water users. The Land Court had recommended that four of the mining leases be granted and that the fifth be granted with a reduced area. The applicant contended that the Land Court should have directed experts to meaningfully consider the issue of downstream water users.

The court considered the legal issues concerning the duty of the Land Court to investigate matters beyond the evidence presented and whether the decision was unreasonable. The court found that the Land Court did not have a duty to conduct its own investigations beyond the material presented by the parties. The court referenced previous cases and legislation to support this conclusion, including the decision in Minister for Immigration and Citizenship v SZIAI. The court further held that the decision made by the Land Court was not unreasonable as it was based on the evidence presented and the inferences drawn from it were supported.

The court ultimately dismissed the application, finding that the Land Court had not failed to take into account relevant considerations or acted unreasonably. The court also noted that the applicant had the opportunity to present evidence regarding the downstream water users but chose not to do so. The court ordered that the application be dismissed and that the parties be heard on costs.

Orders

Orders of the court

1. The application is dismissed.

2. I will hear the parties on costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Chief Justice Barwick referred to the legislation and the purpose of notifying the making of the applications and indicating the time for objections and of the date of hearing. He said that was to afford “the applicant on the one hand an opportunity to justify in a public hearing the granting of a mining lease, both in point of the area and in point of term, and also to give the public an opportunity of opposition supported by evidence to the grant of a mining lease.” This statement is consistent with the proposition made by Pembroke that it was for the Land Court to consider the matters in s 269(4) by reference to the material before it. Barwick CJ went on to say that he would not accept a submission that the warden cannot be expected to examine in depth matters which would justify a recommendation that the application be refused, in other words, the warden is expected to conduct an in-depth examination. He went on to observe that it was not enough that the formalities for application had been observed, he said that it “was essential that there be material before [the warden], quite apart from any objection, which would warrant an affirmative conclusion on the substance of the applications that the recommendations should be made.” It should be borne in mind that the public interest may also favour the granting of a mining lease, and Barwick CJ has pointed out that there must be material before the court which allows such a conclusion to be drawn. Further consideration was given by Stephen J to the necessity for evidence to be provided. He summarised the evidence which was before the warden and went on to state what he considered to be the task involved in hearing an application for the grant of a mining lease and any objections to it, particularly where the question of the public interest is raised. With respect to the relevant regulation, he said:“Any consideration of the public interest for the purposes of reg. 39(2)(a) should, I think, involve the weighing of benefits and detriments. In this task a warden will not be required to pursue his own enquiries; he may confine himself to the material placed before him by the parties.”[14] (emphasis added)[14]Ibid at 485. While the statement by Stephen J is not part of the ratio of the decision, it nevertheless is consistent with the other judgments given and carries weight. The absence of a duty to inquire is consistent with the decision in Minister for Immigration and Citizenship v SZIAI.[15] In that case, the High Court considered the duty of the Refugee Review Tribunal (“RRT”) after it received a valid application for the review of a particular decision. The immediate difference between the RRT and the Land Court is that the former is making a decision and standing in the shoes of the original decision-maker while the Land Court is merely making a recommendation. Nevertheless, the similarity of the legislation considered means that this decision is persuasive so far as consideration of the appropriate construction of the MRA is concerned.[15](2009) 111 ALD 15.

Decision

Reasons for decision

The first respondent considered the issue raised by Sunland on this application and came to a conclusion about the state of the evidence. Her Honour did not fail to take into account the relevant consideration nominated by the applicant.Third ground – the decision was unreasonable This ground is based upon the applicant’s thesis that the Land Court had a duty to go beyond the material presented and to make investigations on matters which were either not raised by any of the parties or about which, in the applicant’s view, the evidence was insufficient. In particular, the applicant argues that the first respondent had a duty to make enquiries beyond the evidence regarding the downstream user issues. In its written submissions, the applicant contends that the Court should have directed the experts to “meaningfully consider the issue”. In the absence of that occurring, the applicant says, the decision was unreasonable. As is identified above, there was evidence about the effect on downstream users. It was limited, but I do not accept that the inference drawn by the first respondent was unavailable or unsupported by the evidence before the Court. Sunland did not gainsay the manner in which the Land Court heard the objections. It was represented by experienced lawyers who tendered evidence in support of its objections. Although the proceedings were not adversarial and there was no onus on Sunland, it was open to it to explore the effects on downstream users. It was not confined to matters which had only a direct effect on it. It could have directed its own expert to investigate these matters. But now, it says that the first respondent failed by not doing something that nobody asked her to do at the hearing. The High Court has considered the principles applicable to the idea of “legal unreasonableness” in cases such as ABT v Minister for Immigration and Border Protection,[21] Minister for Immigration and Citizenship v Li,[22] and Minister for Immigration and Border Protection v SZVFW,[23] They were usefully summarised by Rares, Anastassiou and Stewart JJ in Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[24] I gratefully adopt what they said in these paragraphs:[21](2020) 269 CLR 439.[22](2013) 249 CLR 332.[23](2018) 264 CLR 541.[24](2020) 281 FCR 578.“[65] The ground of judicial review known as ‘legal reasonableness’ derives from a statutory implication. The implication that a statutory power be exercised within the bounds of (legal) reasonableness arises through a common law presumption: ABT17 at [19]; Li at [29] per French CJ, [63] per Hayne, Kiefel and Bell JJ and [88] per Gageler JJ; SZVFW at [53] per Gageler J, [80] per Nettle and Gordon JJ and [131] per Edelman J. Where a statutory power is exercised in a manner that is legally unreasonable, the exercise of the power is beyond the jurisdiction conferred upon the repository of that power; that is, the repository committed a jurisdictional error: SZVFW at [51] per Gageler J and [80] per Nettle and Gordon JJ. There are different ways of formulating the expression of legal reasonableness. These include that unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification (Li at [76]), and that reasonableness is the minimum to be expected of any reasonable repository of the power (SZVFW at [52] and [134]). It has been repeatedly emphasised that the test for unreasonableness is necessarily stringent (Li at [108]; SZVFW at [108]). In ABT17 at [19] Kiefel CJ, Bell, Gageler and Keane JJ said:‘[t]he implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made [quoting Li at [91]] such that [j]ust as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course [Minister for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 290, citing Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 46; 6 FCR 155 at 169–170, cf Minister for Immigration & Citizenship v SZIAI[2009] HCA 39; 83 ALJR 1123 at [20]–[25]].’[66]Importantly for present purposes, French CJ held in Li as follows (at [30]):‘The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.’” (emphasis added)

Ratio Decidendi

Legal Principle Established

The basis upon which Sunland advanced this ground is not supported by the proper construction of the relevant sections of the MRA. This ground must be dismissed.Second ground - the decision failed to take into account a relevant consideration Section 269(4)(j) requires the Land Court to take into account and consider whether the operations at the proposed mine will cause any adverse environmental impact. In dealing with that, the first respondent noted that the objections taken by the objector had narrowed considerably before and during the hearing. The focus was on water impacts. On the first day of the hearing, Sunland submitted that it wished to be heard only in relation to groundwater and surface water. Although it did not formally abandon or withdraw other objections, it did not contest expert evidence led by Pembroke on a large number of matters. Sunland confined its argument to groundwater and surface water issues. The first respondent commenced dealing with water issues by referring to the three joint expert reports relating to those issues. She concluded that the parties agreed that there were five broad issues in dispute relevant to water:(a)the reduction in flow duration in the Isaac River,(b)the impact of the causeway on the flow of the Isaac River,(c)flooding,(d)mine water quality, and (e)overland flow. Under the heading “Surface water”, the first respondent noted that one effect of the changes would be a loss of surface water from the Isaac River to the groundwater system. Her Honour went on to observe:“[131] Sunland holds a water licence with a nominal entitlement of 1,250 ML/yr and a mean annual diversion of 600 ML. Dr Johnson observed infrastructure on Old Bombandy that would enable Sunland to extract surface water from the Isaac River, although he saw no evidence that water had been taken under the licence. [132]In any case, Sunland is not authorised to take water under the licence unless the flow in the Isaac River immediately downstream of the point of take is at least 1,080 ML/day.107 The three surface water experts, Mr Roads, Dr Johnson and Mr McAlister, agree the groundwater drawdown will not affect Sunland’s ability to fully utilise this water licence.[133]There is limited evidence about other surface water extraction downstream from the mine. There are four other downstream surface water licences connected to a total of three properties on the Isaac River.109 There is no evidence about the conditions of these licences. However, their distance from the project is an important consideration. [134]Dr Johnson agreed with Mr Roads that the impact on surface water becomes less important to the overall function of the stream as you go downstream. He said: The impact of the loss [indistinct] the mines will reduce as we go downstream, as the catchment becomes bigger. So, at some point downstream, the impact becomes negligible. It’s small to begin with and, by the time we’re significantly downstream, it doesn’t register at all.[135]The three properties affected are located approximately 55 km to 79 km downstream of the project. They are well outside the zone affected by the groundwater drawdown, as modelled in the EIS. They are also beyond the 52 km modelled for the surface water loss. In the absence of evidence to indicate a likely impact, it is reasonable to assume that there will be negligible, if any, impact on surface water users 55 km, and more, downstream of the mine.” (emphasis added)