SUPREME COURT OF QUEENSLAND
CITATION:
Waratah Coal Pty Ltd v Nicholls & Anor [2013] QSC 68
PARTIES:
WARATAH COAL PTY LTD ACN 114 165 669
(applicant)
v
TIMOTHY JAMES NICHOLLS, TREASURER AND MINISTER FOR TRADE
(first respondent)
and
NORTH QUEENSLAND BULK PORTS CORPORATION LIMITED
(second respondent)FILE NO:
BS 10350 of 2012
DIVISION:
Trial Division
PROCEEDING:
Statutory Order of Review
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
22 March 2013
DELIVERED AT:
Brisbane
HEARING DATE:
6 March 2013
Further written submissions received on 18 March 2013
JUDGE:
Applegarth J
ORDER:
On the respondents’ application to dismiss:
1. application adjourned to a date to be fixed;
2. costs reserved.
On the applicant’s application filed 21 February 2013:
1. each of the respondents disclose any document within the period 18 May 2012 to 12 July 2012 which constitutes or evidences a direction to the second respondent by its Shareholding Ministers (or any one of them) to terminate the process for identification of Preferred Respondents and negotiation with Preferred Respondents in respect of the proposed development of terminals 4 to 9 at the Port of Abbot Point;
2. otherwise application adjourned to a date to be fixed;
3. costs reserved.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – DECLARATIONS – where applicant (“Waratah”) alleges two State Ministers gave a direction to the second respondent (“NQBPC”) to terminate process for proposed development of port terminals and second respondent implemented that direction – where applicant alleges Ministers’ direction and second respondent’s implementation of it are invalid – where respondents deny alleged direction was given – where respondents argue proceeding is misconceived and lacks utility – whether alleged direction was given – whether proceeding should be dismissed
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – DECISIONS UNDER INSTRUMENTS – where respondents allege decision by NQBPC to terminate process not made under an enactment and excluded by s 18A of the Judicial Review Act 1991 (Qld) (“JRA”) – whether decision to terminate process is amenable to review under the JRA
PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – where applicant requests disclosure in judicial review proceeding – where respondents oppose request as impermissibly wide and fishing – whether order for disclosure should be made
Civil Proceedings Act 2011 (Qld), s 10
Government Owned Corporations Act 1993 (Qld), s 82, s 88, s 89(2), s 114, s 115, s 117, s 122(1)(a)
Judicial Review Act 1991 (Qld), s 18A, s 26, s 30(1)(b), s 48, schedule 6
Transport Infrastructure Act 1994 (Qld) s 486Uniform Civil Procedure Rules 1999 (Qld), r 16(e), r 209(1)(c), r 211(1)(c)
Allianz Australia Insurance Ltd v Crazzi (2006) 68 NSWLR 266; [2006] NSWSC 1090, cited
BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd (No2) [2013] QSC 67, cited
Central Queensland Mining Supplies Pty Ltd v Columbia Steel…
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- Case
- [2013] QSC 68
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the Ministers had indeed given the alleged direction and whether the proceeding should be dismissed. Additionally, the court had to decide if the decision to terminate the process was amenable to review under the Judicial Review Act, considering the respondents' argument that it was not made under an enactment. The court also had to consider the respondents' opposition to the applicant's request for discovery, which they claimed was impermissibly wide and amounted to fishing.
The court found that the proceeding should be adjourned to allow further evidence and argument. It directed the respondents to disclose any documents that constituted or evidenced a direction to NQBPC by the Ministers to terminate the process for the proposed development of terminals 4 to 9 at the Port of Abbot Point. The application was otherwise adjourned to a later date, and costs were reserved.
Orders
Orders of the court
On the respondents’ application to dismiss:
1. application adjourned to a date to be fixed;
2. costs reserved.
On the applicant’s application filed 21 February 2013:
1. each of the respondents disclose any document within the period 18 May 2012 to 12 July 2012 which constitutes or evidences a direction to the second respondent by its Shareholding Ministers (or any one of them) to terminate the process for identification of Preferred Respondents and negotiation with Preferred Respondents in respect of the proposed development of terminals 4 to 9 at the Port of Abbot Point;
2. otherwise application adjourned to a date to be fixed;
3. costs reserved.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.