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Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd

 

[2007] QCA 377

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

AML No 207 of 2006

ENO No 208 of 2006

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

DELIVERED ON:

2 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

McMurdo P, Holmes JA and Mackenzie J

Judgment of the Court

FURTHER ORDER:

The first respondent is granted an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld)

CATCHWORDS:

PROCEDURE – COSTS – where the appeal succeeded on a point of law – where the Land and Resources Tribunal erred in denying natural justice to the appellant – where the first respondent was ordered to pay costs – where leave was subsequently granted to make written submissions in support of an indemnity certificate under s 15(1)(a) of the Appeal Costs Fund Act 1973 (Qld) – whether an indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld), s 15(1)(a)

COUNSEL:

S J Keim SC, with C J McGrath, for the appellant

D J S Jackson QC, with S E Brown, for the first respondent

I R Pepper (sol) for the second respondent

SOLICITORS:

Environmental Defenders Office for the appellant

Allens Arthur Robinson for the first respondent

Environmental Protection Agency for the second respondent

[1]  THE COURT:  On 12 October 2007 this Court allowed this appeal with costs to be paid by the first respondent.  The first respondent was given 14 days within which to apply for and make written submissions in support of an indemnity certificate under s 15(1)(a) of the Appeal Costs Fund Act 1973 (Qld).  The first respondent has now made its application and submissions.

[2] Section 15(1)(a) gives this Court an unfettered discretion to make such an order where an appeal against the decision of a court to the Supreme Court succeeds on a question of law.  The Land and Resources Tribunal is a court as defined in s 4 Appeal Costs Fund Act.  The present appeal succeeded on a question of law.  This Court determined that the Land and Resources Tribunal had erred in denying natural justice to the appellant.  The first respondent did not in any way encourage the Tribunal in that error.  In the circumstances, it is entirely proper that the first respondent should be granted an indemnity certificate under s 15(1)(a).

FURTHER ORDER:

The first respondent is granted an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld).

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Editorial Notes

  • Published Case Name:

    Queensland Conservation Council Inc v Xstrata Coal Queensland P/L & Ors

  • Shortened Case Name:

    Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd

  • MNC:

    [2007] QCA 377

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Holmes JA, Mackenzie J

  • Date:

    02 Nov 2007

Litigation History

Event Citation or File Date Notes
Primary Judgment [2007] QLRT 33 15 Feb 2007 Application for additional surface area to ML and related EA; application granted without conditions: Koppenol P.
Appeal Determined (QCA) [2007] QCA 338 (2007) 98 ALD 483; (2007) 155 LGERA 322 12 Oct 2007 Allowing appeal against decision of Land and Resources Tribunal; Tribunal made orders recommending to the Minister that Xstrata's application for additional surface area be granted without any of the conditions sought by the objectors and that the related EA MLA be granted without any of the conditions; denial of natural justice by relying on matters contrary to the facts accepted by the parties at hearing: McMurdo P, Holmes JA and Mackenzie J.
Appeal Determined (QCA) [2007] QCA 377 02 Nov 2007 Costs following appeal judgment; first respondent granted indemnity certificate; first respondent did not in any way encourage the Tribunal into error: McMurdo P, Holmes JA and Mackenzie J.

Appeal Status

{solid} Appeal Determined (QCA)