Waratah Coal Pty Ltd v Seeney - [2014] QSC 226

SUPREME COURT OF QUEENSLAND

CITATION:

Waratah Coal Pty Ltd v Seeney & Anor [2014] QSC 226

PARTIES:

WARATAH COAL PTY LTD
ACN 114 165 669
(applicant)
v
JEFFREY WILLIAM SEENEY, MINISTER FOR STATE DEVELOPMENT, INFRASTRUCTURE AND PLANNING
(first respondent)
and
CO-ORDINATOR GENERAL, DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE AND PLANNING
(second respondent)

FILE NO:

11583 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application for a Statutory Order of Review

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

17 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

11, 12 June 2014

Agreed chronology and further submissions on 25 July 2014

JUDGE:

Daubney J

ORDER:

1.The amended application for a statutory order of review be dismissed.

2.I will hear the parties as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where the applicant is a proponent of a coal mining project in the Galilee Basin – where the applicant made an application for approval of a rail corridor linked with its mining project as an “infrastructure facility of significance” – where this application was made under s 125(1)(f) of the State Development and Public Works Organisation Act 1971 (Qld) (“the Act”) – where the purpose of seeking the declaration was to enable subsequent invocation of the discretionary powers of compulsory acquisition under s 125 of the Act - where the application was refused – where the decision is amenable to review under Judicial Review Act 1991 (Qld) – where the applicant submits that pursuant to the Judicial Review Act 1991 (Qld) the decision should be quashed or set aside, and referred back to the second respondent for consideration and determination according to the law – whether the decision to refuse approval of the rail line as an “infrastructure facility of significance” under s 125(1)(f)(ii) of the Act was infected by error such as to render it susceptible to judicial review

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FETTERING DISCRETION – where the basis of the government’s policy was that there would be two rail corridors within which the powers of compulsory acquisition would be considered for exercise – where the applicant’s proposed rail line lay outside the two approved corridors – where the applicant contends that the decision-maker allowed his discretion to be fettered by improperly applying government policy – where the applicant further contends that the decision-maker failed to have regard to the merits of the application – whether the decision-maker gave proper, genuine and realistic consideration to the merits of the application and was ready to depart from government policy if the merits of the application justified such a course

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the applicant submits that the decision-maker took into account two irrelevant considerations – where the first irrelevant consideration was that there was an absence of approval for the applicant’s facility under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) – where the second irrelevant consideration was that the statement of reasons improperly…

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.

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Details

Case: [2014] QSC 226
Decision Date: 17 September 2014

CaseChat Overview and Summary

Waratah Coal Pty Ltd applied for judicial review of a decision by the Queensland Coordinator-General, as the decision-maker, to refuse approval of a proposed rail corridor as an infrastructure facility of significance under the State Development and Public Works Organisation Act 1971 (Qld). The refusal was made pursuant to section 125(1)(f)(ii) of the Act and was based on the decision-maker's adherence to government policy that only two rail corridors would be considered for compulsory acquisition powers. Waratah Coal argued that the decision was infected by errors such as fettering of discretion, failure to consider relevant considerations, consideration of irrelevant considerations, and unreasonableness.

The primary legal issues before the court were whether the decision-maker allowed his discretion to be fettered by government policy, whether the decision-maker failed to consider relevant merits and took irrelevant considerations into account, and whether the decision was so unreasonable that no reasonable person could have reached it. The court examined the decision-maker's adherence to the government policy, the reasons provided, and whether the decision-maker gave proper, genuine and realistic consideration to the merits of the application.

The court found that the decision-maker properly applied the government policy and did not fetter his discretion. The court held that the decision-maker gave proper, genuine and realistic consideration to the merits of the application, even if the merits did not justify departure from the policy. The court also found that the decision-maker did not take irrelevant considerations into account and that the decision was not so unreasonable that no reasonable person could have reached it. Therefore, the application for judicial review was dismissed.

The court did not make any orders as to costs at the time of the decision.

Orders

Orders of the court

1.The amended application for a statutory order of review be dismissed.

2.I will hear the parties as to costs.

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.

CITATION:	Waratah Coal Pty Ltd v Seeney & Anor [2014] QSC 226
PARTIES:	WARATAH COAL PTY LTD ACN 114 165 669 (applicant) v JEFFREY WILLIAM SEENEY, MINISTER FOR STATE DEVELOPMENT, INFRASTRUCTURE AND PLANNING (first respondent) and CO-ORDINATOR GENERAL, DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE AND PLANNING (second respondent)
FILE NO:	11583 of 2013
DIVISION:	Trial Division
PROCEEDING:	Application for a Statutory Order of Review
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	17 September 2014
DELIVERED AT:	Brisbane
HEARING DATE:	11, 12 June 2014 Agreed chronology and further submissions on 25 July 2014
JUDGE:	Daubney J
ORDER:	1.The amended application for a statutory order of review be dismissed. 2.I will hear the parties as to costs.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where the applicant is a proponent of a coal mining project in the Galilee Basin – where the applicant made an application for approval of a rail corridor linked with its mining project as an “infrastructure facility of significance” – where this application was made under s 125(1)(f) of the State Development and Public Works Organisation Act 1971 (Qld) (“the Act”) – where the purpose of seeking the declaration was to enable subsequent invocation of the discretionary powers of compulsory acquisition under s 125 of the Act - where the application was refused – where the decision is amenable to review under Judicial Review Act 1991 (Qld) – where the applicant submits that pursuant to the Judicial Review Act 1991 (Qld) the decision should be quashed or set aside, and referred back to the second respondent for consideration and determination according to the law – whether the decision to refuse approval of the rail line as an “infrastructure facility of significance” under s 125(1)(f)(ii) of the Act was infected by error such as to render it susceptible to judicial review ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FETTERING DISCRETION – where the basis of the government’s policy was that there would be two rail corridors within which the powers of compulsory acquisition would be considered for exercise – where the applicant’s proposed rail line lay outside the two approved corridors – where the applicant contends that the decision-maker allowed his discretion to be fettered by improperly applying government policy – where the applicant further contends that the decision-maker failed to have regard to the merits of the application – whether the decision-maker gave proper, genuine and realistic consideration to the merits of the application and was ready to depart from government policy if the merits of the application justified such a course ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the applicant submits that the decision-maker took into account two irrelevant considerations – where the first irrelevant consideration was that there was an absence of approval for the applicant’s facility under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) – where the second irrelevant consideration was that the statement of reasons improperly…