Symbolic Resources Pty Ltd v Kingham

Link copied
Case Copied 78 min read

SUPREME COURT OF QUEENSLAND

CITATION:

Symbolic Resources Pty Ltd v Kingham & Ors [2020] QSC 193

PARTIES:

SYMBOLIC RESOURCES PTY LTD (ABN 55 604 407 426)

(Applicant)

v

FLEUR KINGHAM (PRESIDENT OF THE LAND COURT OF QUEENSLAND)

(First Respondent)

and

MALCOLM ROBERT BURSTON

(Second Respondent)

and

DAVID GULLO

(Third Respondent)

and

SHANE ANDREW WATTS AND AMANDA RAE WATTS

(Fourth Respondents)  

FILE NO/S:

SC No 11776 of 2019

DIVISION:

Trial

PROCEEDING:

Application for a statutory order of review
ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

26 June 2020

DELIVERED AT:

Brisbane
HEARING DATE:

14 April 2020 & 15 April 2020

Supplementary submissions received 16 April 2020 (applicant) and 23 April 2020 (fourth respondents)

JUDGE:

 Wilson J

ORDER:

The orders of the Court are:

1.   The Land Court decision made on 27 September 2019, which recommended to the Minister for Natural Resources, Mines and Energy that the MLA100123 be rejected, be declared void and set aside.

2.   This matter is remitted to the Land Court to be decided according to law. 

3.   The question of costs is adjourned to a date to be fixed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – whether the Land Court decision involved errors of law in relation to the construction and application of s 265(11) of the Mineral Resources Act 1989 (Qld) – whether the respondent’s objection was a ‘properly made objection’ pursuant to ss 265(11) and 260 of the Mineral Resources Act 1989 (Qld) – where an objection is duly served upon delivery of the objection pursuant to s 399(2) of the Mineral Resources Act 1989 (Qld) and s 39A of the Acts Interpretation Act 1954 (Qld) – where service of an objection upon the applicant within the objection period is not a mandatory requirement of s 260 of the Mineral Resources Act 1989 (Qld)

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – whether the Land Court considered matters not included in an objection in contravention of s 268(3) of the Mineral Resources Act 1989 (Qld) – where the Land Court exceeded its jurisdiction by entertaining a matter not included in an objection

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – whether the Land Court decision had jurisdiction under s 269(4) of the Mineral Resources Act 1989 (Qld) to consider matters dealt with under a separate statutory regime – whether the Land Court considered the adequacy of the applicant’s environmental authority conditions

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS  – HEARING – NATURE OF HEARING – NEW MATTER ARISING IN COURT - where the applicant was self-represented in the initial Land Court proceedings – where the Land Court allowed a new witness to give evidence without prior notice to the applicant – whether the applicant was given a reasonable opportunity to adduce evidence in response to this new evidence – whether the Land Court adequately assisted the applicant as a…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Symbolic Resources Pty Ltd v Kingham and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2020] QSC 193
Decision Date

CaseChat Overview and Summary

Symbolic Resources Pty Ltd challenged a decision of the Land Court, which had recommended the rejection of the applicant's mining lease application. The Land Court decision followed an objection lodged by a third party, Kingham, pursuant to the Mineral Resources Act 1989 (Qld). The applicant sought judicial review of the Land Court's decision, alleging errors of law and breaches of procedural fairness. The applicant contended that the Land Court had erred in its interpretation and application of sections 265(11) and 260 of the Mineral Resources Act 1989 (Qld), and sections 268(3) and 269(4) of the same Act. Additionally, the applicant argued that procedural fairness was compromised when a new witness was allowed to give evidence without prior notice, and the applicant was not given a reasonable opportunity to respond.

The court examined whether the Land Court had correctly interpreted the statutory provisions and whether it had considered matters not included in the objection. The court also considered if the Land Court had jurisdiction to review the adequacy of the applicant's environmental authority conditions. Furthermore, the court assessed whether the procedural fairness was maintained when a new witness was introduced without notice, and if the applicant had an opportunity to effectively respond and make an informed choice. The court found that the Land Court had indeed erred in its interpretation of the statutory provisions, and that procedural fairness had been breached by introducing new evidence without notice and not allowing the applicant a reasonable opportunity to respond.

The Land Court decision was quashed, and the matter was remitted to the Land Court for reconsideration. The court did not make a final decision on the issue of costs, adjourning it to a later date.

The final orders of the court were to declare the Land Court decision void and set aside, remit the matter to the Land Court for reconsideration, and adjourn the question of costs to a later date.

Orders

Orders of the court

The orders of the Court are:

1. The Land Court decision made on 27 September 2019, which recommended to the Minister for Natural Resources, Mines and Energy that the MLA100123 be rejected, be declared void and set aside.

2. This matter is remitted to the Land Court to be decided according to law.

3. The question of costs is adjourned to a date to be fixed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

At the hearing, the issues in dispute were confined in scope. The applicant referred to paragraph 69 of the Land Court decision and submitted that if the Land Court had followed the second last sentence of this paragraph (as underlined), then that would have reflected a proper approach to decision making under section 269(4)(j) of the MRA:[74] “[69] As there is no evidence from [the Department of Environment and Science] about its assessment-level decision, it is not possible for the Court to decide whether the answers considered above did, in fact, mislead it. However, they were apt to do so. It raises doubts about whether [the Department of Environment and Science] could or did properly assess the potential adverse environmental impacts and condition the activity appropriately. Given the evidence from Mr Lucas and Mr Paterson, there is a real question about whether standard environmental conditions are appropriate for this activity on the area applied for. I now turn to that evidence.”[75][74]Transcript of Proceedings, 15 April 2020 at 2-22 / line 30 – 40. [75]Symbolic Resources Pty Ltd v Burston & Anor [2019] QLC 39 at [69]. Mr Cross was called on behalf of the applicant and gave evidence about the permanent spring in the area of the Ward Creek bore. Ms Smith asked Mr Cross whether he had ever seen this spring dry up, and Mr Cross gave evidence that the spring dried up most years. Mr Cross also gave evidence that the applicant’s proposed mining activity would probably not impact the third respondent’s bore.[95] When questioned by the President, Mr Cross conceded that he did not have any particular qualifications in this area.[96][95]Affidavit of Anna Smith affirmed 22 November 2019, Exhibit AS-5.2 at 2-125 – 2-127. [96]Affidavit of Anna Smith affirmed 22 November 2019, Exhibit AS-5.2 at 2-127 / line 27 – 30. Ms Smith also asked Mr Cross whether he had observed certain animal species on the property during the ten years that he owned the property. This line of questioning was retracted when the President noted Mr Cross was being asked to challenge the expert evidence of Mr Patterson, without holding the relevant expertise.[97][97]Affidavit of Anna Smith affirmed 22 November 2019, Exhibit AS-5.2 at 2-131 / line 22 – 47. It is clear that the President did not find Mr Cross to be an impressive witness.[98] [98]Symbolic Resources Pty Ltd v Burston & Anor [2019] QLC 29 at [47]. On the second day of the Land Court hearing, Mr Murphy was called on behalf of the applicant. He gave evidence which included his knowledge of the soil and rock samples he had taken from the Ward Creek area.[99][99]Affidavit of Anna Smith affirmed 22 November 2019, Exhibit AS-5.2 at 2-151 – 2-163. Mr Murphy also gave evidence that Ward Spring had been dry at one time.[100] [100]Affidavit of Anna Smith affirmed 22 November 2019, Exhibit AS-5.2 at 2-162 / line 7. It was at this stage that the third respondent asked the President if he could call Mr Pott as a witness. Mr Pott had been a previous owner of Milwarpa.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.