Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Mt Ruby Mines Pty Ltd v Dunn

 

[2019] QLC 46

LAND COURT OF QUEENSLAND

 

CITATION:

Mt Ruby Mines Pty Ltd v Dunn [2019] QLC 46

PARTIES:

Mt Ruby Mines Pty Ltd

(applicant)

 

v

 

Gary Dunn

(objector)

FILE NO:

MRA126-19 (MLA 100142)

DIVISION:

General division

PROCEEDING:

Application to strike out

DELIVERED ON:

27 November 2019 [ex tempore]

DELIVERED AT:

Brisbane

HEARD ON:

27 November 2019

HEARD AT:

Brisbane

PRESIDENT:

FY Kingham

ORDERS:

  1. The objection made by Mr Dunn is not a properly made objection.
  1. The listing for hearing in Atherton on 12 December 2019 is vacated.
  1. MLA100142 is remitted to the Chief Executive of the Department of Natural Resources, Mines and Energy.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – application for mining lease – objections to application – where the objection was not lodged within time – whether the Court has jurisdiction to hear the objection – where the Court does not have jurisdiction and cannot rely on its substantial compliance power – where the objection was not a properly made objection – where the mining lease application was remitted to DNRME

Land Court Act 2000 s 4(1), s 5

Mineral Resources Act 1989 s 260(1), s 265, s 268, s 269, s 392

Mineral Resources Regulation 2013 r 94

Mines and Energy Legislation Amendment Act 2010 (No. 17 of 2010) s 50

Mines Legislation (Streamlining) Amendment Act 2012 (No. 12 of 2012) s 195

ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation (ACI) [2002] 1 Qd R 347, applied

Australian Finegrain Marble Pty Ltd & Kagara Pty Ltd [2006] QLRT 132, cited

Lee v Kokstad Mining Pty Ltd [2005] QLRT 160, cited

Lee v Kokstad Mining Pty Ltd (2008) 1 Qd R 65, applied

McAvoy v Adani Mining Pty Ltd [2014] QLC 32, cited

Re ACI Operations Pty Ltd and Friends of Stradbroke Island Association Inc [2000] QLRT 7, applied

APPEARANCES:

C E Meiklejohn (solicitor), McCullough Robertson Lawyers, for the applicant

F Ford (agent) for the objector and G Dunn, the objector (self-represented)

  1. [1]
    Mt Ruby Mines Pty Ltd operates the Mt Ruby Mine, near Ravenshoe in North Queensland under ML20414. It mines a range of minerals, including magnetite iron ore. The ore body extends beyond its existing mining lease. Mt Ruby Mines has applied for a further mining lease (MLA 100142) to locate infrastructure for the mine and to extract magnetite iron ore and the other minerals.
  1. [2]
    On 27 June 2019, a project officer in the Department of Natural Resources Mines and Energy (DNRME) referred Mt Ruby Mines’ application, and two objections to the grant of the application, to the Court for a hearing. One objector has since withdrawn his objection. Mr Gary Dunn made the other objection.
  1. [3]
    The Court has listed the application and Mr Dunn’s objection for hearing in Atherton commencing on 12 December 2019. Mt Ruby Mines has applied for a declaration that Mr Dunn’s objection is not a properly made objection, or for an order striking out his objection.
  1. [4]
    “Properly made objection” is a defined term:[1]

properly made objection means an objection lodged under section 260 that has not been withdrawn.”

  1. [5]
    Mr Dunn was required to lodge his objection with DNRME on or before the last objection day for the application.[2]  
  1. [6]
    There is no dispute about the relevant facts. The last objection day for the application was 19 June 2019. Mr Dunn’s objection was lodged on 22 June 2019.[3] As that was a Saturday, it is taken to have been lodged on 24 June 2019, three working days after the last objection day.[4]
  1. [7]
    Those facts lead to the inevitable conclusion that Mr Dunn’s objection is not a properly made objection.[5]
  1. [8]
    The real issue is whether the Court can and, if it can, whether it should exercise a power conferred by s 392 of the Mineral Resources Act 1989 (MRA) to accept substantial compliance and hear the application and Mr Dunn’s objection, as if it were a properly made objection.
  1. [9]
    Ms Ford, who is Mr Dunn’s carer, told DNRME that she tried to lodge the objection by email on 19 June 2019 “but some computer glitch prevented it being sent.”[6]
  1. [10]
    Mr Dunn argues Mt Ruby Mines received a copy of the objection within time. He also notes Mt Ruby Mines was five days late in filing some material as directed by this Court and requests the same leeway with paperwork as Mt Ruby Mines received for its material.
  1. [11]
    However, Mt Ruby Mines submits the failure to lodge the objection within time means the Court has no jurisdiction to entertain the objection and cannot rely on s 392 – the substantial compliance power - to cure that defect.
  1. [12]
    There is an important distinction between the time requirement for an objection and the timetable that this court sets for documents in preparation for a hearing. The former goes to the jurisdiction of the Court. The latter are procedural requirements to prepare a matter for hearing, and failure to comply with a procedural timetable usually does not have the same significance.
  1. [13]
    Ms Ford submits for Mr Dunn that the system is biased against the objector. I will not pass comment about that opinion. It is not for me to comment on the policy that is enshrined in legislation.
  1. [14]
    I will explain, though, why this Court can only proceed if there has been a properly made objection. Although the outcome is harsh for Mr Dunn, I consider this Court does not have jurisdiction to entertain Mr Dunn’s objection and should remit the application to the Chief Executive of DNRME.
  1. [15]
    The Court is a specialised judicial tribunal.[7] It has the jurisdiction given to it under the Land Court Act 2000 or another Act.[8] If it acts without jurisdiction, its orders have no effect.[9] The Chief Executive of DNRME enlivens the Court’s jurisdiction in relation to an application for a mining lease by referring the application, and all properly made objections, to the Court for hearing.[10]
  1. [16]
    The Chief Executive’s obligation to make the referral only arises if a “properly made objection is made” for the application.[11] The requirement for a properly made objection - that is an objection lodged within the time required by s 260 - means timely lodgement is a precondition to the Court having jurisdiction. If there is no properly made objection in that sense, there is no valid referral and the Court has no jurisdiction to conduct a hearing in relation to the application.
  1. [17]
    The provisions of the MRA that define the Court’s function and procedure in conducting the hearing reinforce an intention that the Court may only entertain an objection lodged within time. The Court must hear the application and objections to it[12] and make a recommendation to the Minister.[13] The Court must “take such evidence…hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters.”[14] However, the Court may not entertain an objection or any ground thereof, or evidence in relation to a ground of objection that is not contained in an “objection that has been duly lodged” in respect of the application.[15]
  1. [18]
    That last requirement is imposed by s 268(3) of the MRA, and I was referred to two Court of Appeal decisions interpreting that provision. In ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation (ACI)[16] the Court of Appeal found that s 268(3) precluded the Land and Resources Tribunal (LRT), which then had the jurisdiction now conferred on the Court, from entertaining any objection not duly lodged.
  1. [19]
    In Lee v Kokstad Mining Pty Ltd (Kokstad),[17]Jerrard JA considered the meaning of “duly lodged” when used in s 268(3) and said:

“…duly lodged must mean duly made, that is, made timeously in accordance with the provisions of the MRA…”

  1. [20]
    In neither ACI nor Kokstad did the Court of Appeal consider, in express terms, whether s 392 allowed the LRT to extend time for an objection to be “duly lodged.” However, in Kokstad, Jerrard JA referred to decisions by the former President of the LRT, now Koppenol DCJ, dealing with the LRT’s power to extend time to lodge an objection.
  1. [21]
    In Re ACI Operations Pty Ltd and Friends of Stradbroke Island Association Inc,[18] President Koppenol doubted an objection lodged after a prescribed date could be said to substantially comply with a requirement to lodge it on or before that date. It either complied or did not.
  1. [22]
    Further, his Honour said:

“In my view, the statutory obligation on the part of the objector to lodge the objection by a prescribed date and the prohibition upon the Tribunal’s entertaining an objection if it is not duly lodged militate strongly in favour of the view that a late objection is invalid.”[19]

  1. [23]
    President Koppenol concluded that, having regard to the purpose, language, scope and object of the MRA, an objection lodged out of time is invalid.[20]
  1. [24]
    Jerrard JA noted[21] that the President had come to a different conclusion in Lee v Kokstad Mining Pty Ltd[22], but that his Honour had reaffirmed his reasoning in ACI in his later decision of Australian Finegrain Marble Pty Ltd & Kagara Pty Ltd.[23]
  1. [25]
    Jerrard JA did not criticise his Honour’s conclusions in ACI and Australian Finegrain Marble. Although the former President’s decision in Kokstad was not before the Court of Appeal, it was the subject of consideration as the decision under appeal had found that the LRT did not have the power to make the orders the President had made in Kokstad.
  1. [26]
    Jerrard JA observed that President Koppenol, in extending time for an objection, in that case, was not exercising a jurisdiction conferred under any Act[24] and he referred to his Honour’s decisions in support of his reasoning that the orders President Koppenol had made in  Kokstad were of no effect.
  1. [27]
    Given those circumstances, I am satisfied that the Court of Appeal in Kokstad accepted that the LRT, and therefore this Court, cannot rely on s 392 to accept as a properly made objection, an objection that has been lodged out of time.
  1. [28]
    Two other considerations fortify that interpretation of the relevant provisions of the MRA. First, s 392 is a general provision and must give way to the more specific provisions of s 265 and s 268, which define the Court’s jurisdiction and the scope of its power to hear an objection.
  1. [29]
    Second, subsequent amendments to the MRA, strengthen that interpretation. When each of the cases referred to above was decided, the Mining Registrar was required to fix a date for hearing by the LRT, or refer the matter to the Court, for all mining lease applications, whether or not there was any properly made objection. Since then, the Court’s jurisdiction has narrowed. On 21 April 2010, amendments to s 265 came into effect, which required referral to the Court only if a properly made objection had been lodged.[25] Later amendments (19 October 2012) inserted a definition of properly made objection in the same terms as now appears in that section.[26]
  1. [30]
    I also note the decision of the then Acting President of this Court in McAvoy v Adani Mining Pty Ltd[27]to the same effect. Although his reasoning is not explicit, his Honour had regard to the two Court of Appeal decisions that I have considered and reached the same conclusion that I have.
  1. [31]
    Mt Ruby Mines raised a number of other arguments that address whether I should strike out the objection or exercise discretion to accept the objection. Given my conclusions about the Court’s jurisdiction and powers, it is not necessary for me to deal with them.
  1. [32]
    The Court’s jurisdiction to conduct a hearing is predicated on the existence of a properly made objection. If an objection is not lodged by the prescribed date, it is not a properly made objection. The Court cannot accept as a properly made objection one that is lodged out of time. As there is no properly made objection before the Court, it is appropriate to vacate the listing for a hearing next month and to remit the application to the Chief Executive.[28]

Orders

  1. The objection made by Mr Dunn is not a properly made objection.
  1. The listing for hearing in Atherton on 12 December 2019 is vacated.
  1. MLA 100142 is remitted to the Chief Executive of the Department of Natural Resources, Mines and Energy.

 

FY KINGHAM

PRESIDENT OF THE LAND COURT

Footnotes

[1] Mineral Resources Act 1989 s 265(11).

[2]  Ibid s 260(1).

[3]  Affidavit of Peter Stokes affirmed 22 November 2019, PWS-3.

[4] Mineral Resources Regulation 2013 r 94.

[5] Lee v Kokstad Mining Pty Ltd (2008) 1 Qd R 65 [7].

[6]  Affidavit of Peter Stokes affirmed on 22 November 2019, PWS-1.

[7] Land Court Act 2000 s 4(1).

[8]  Ibid s 5.

[9] Lee v Kokstad Mining Pty Ltd (2008) 1 Qd R 65 [46].

[10] Mineral Resources Act 1989 s 265(5).

[11]  Ibid s 265(4).

[12]  Ibid s 268(1).

[13]  Ibid s 269(1).

[14]  Ibid s 268(2).

[15]  Ibid s 268(3).

[16]  [2002] 1 Qd R 347.

[17] Lee v Kokstad Mining Pty Ltd (2008) 1 Qd R 65 [17].

[18]  [2000] QLRT 7 [10]–[15].

[19]  Ibid [12].

[20]  Ibid [15].

[21] Lee v Kokstad Mining Pty Ltd (2008) 1 Qd R 65 [15].

[22]  [2005] QLRT 160.

[23]  [2006] QLRT 132.

[24]  Ibid [14]-[15].

[25] Mines and Energy Legislation Amendment Act 2010 (No. 17 of 2010) s 50.

[26] Mines Legislation (Streamlining) Amendment Act 2012 (No. 12 of 2012) s 195.

[27]  [2014] QLC 32.

[28] Mineral Resources Act 1989 s 265(10).

Close

Editorial Notes

  • Published Case Name:

    Mt Ruby Mines Pty Ltd v Gary Dunn

  • Shortened Case Name:

    Mt Ruby Mines Pty Ltd v Dunn

  • MNC:

    [2019] QLC 46

  • Court:

    QLC

  • Judge(s):

    Kingham P

  • Date:

    27 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.