SUPREME COURT OF QUEENSLAND

1. McMURDO P: This is an application for leave to appeal under s 48(5) of the Judicial Review Act 1991 from the primary judge's decision to summarily dismiss the applicant's application for judicial review of a decision of the Minister for Mines and Energy ("the Minister") to approve the assignment of a 95 per cent interest in a mining lease from the fourth respondent to the third respondent.

2. The applicant is a proprietor of Burton Downs, a property near Mackay. In about 1995, Portman Mining Ltd ("Portman") negotiated a compensation agreement between the applicant and another. Under cl 12 of that agreement, Portman could assign its interest in the mining lease wholly or in part on condition that the assignee entered into a covenant agreeing to be bound by the terms of the compensation agreement. On 4 January 1996, Portman assigned 95 per cent of its interest in the mining lease to the fourth respondent. The grant of the mining lease requires an environmental management overview strategy (EMOS) approved by the Minister which, it seems in this case, allowed for opencut mining only. In about October or November 1999, the Minister purported to approve amendments to the EMOS said to allow underground mining. On 3 December 1999, the applicant brought proceedings under the Judicial Review Act 1991 to set aside that decision (S154 of 1999).  Those proceedings have not yet been determined.  The applicant's concern in bringing those proceedings was that underground mining could structurally damage Burton Homestead and the applicant claimed the Minister lacked jurisdiction to approve the amendment.

3. In late 1999 and early 2000, the fourth respondent transferred its interest in the mining lease to the third respondent. The primary judge determined this application on the basis that the Minister's conditional approval for the transfer of the mining lease when the Minister had no discretion to refuse the assignment.

4. The primary judge concluded that even on the most favourable view of the facts for the applicant, the applicant was not aggrieved in relation to the decision to approve the assignment of the lease; his grievance flows from the decision to amend the EMOS which is already the subject of a judicial review application (S154 of 1999). The applicant continues to have its rights against Portman. If cl 12 of the compensation agreement were complied with in the transfer of the lease and in any event s 276(1)(e) of the Mineral Resources Act 1989 makes a mining lease subject to performing to the assignee's performance of the obligations under the compensation agreement, enabling the applicant to enforce the obligation to maintain Burton Downs against Portman and the third and fourth respondents.

5. Section 1 of the Judicial Review Act 1991 states that:

"A reference to a person aggrieved by a decision includes a reference –

1. to a person whose interests are adversely affected by the decision."

6. The decision of the Minister to approve the assignment does not adversely affect the interests of the applicant. Those interests will be properly be able to be determined by a consideration of the lawfulness of the Minister's decision to approve amendments to the EMOS allowing underground mining in S154 of 1999.

7. The case is one that turns largely on its own facts and does not raise an important principle requiring a determination of the Court of Appeal. Furthermore, the decision of the primary judge appears to be clearly correct. I would refuse the application for leave to appeal with costs to be assessed.

8. WILLIAMS JA:   I have had the advantage of reading the reasons for judgment prepared by Byrne J, and I agree with all that he has said.  I would merely add some brief observations of my own.

9. The applicant contended that the appeal would raise a significant question of law, namely the proper meaning and construction of the term "person aggrieved", where it appears in s 7(1) of the Judicial Review Act 1991.  There are numerous decisions on the meaning of that expression used in the Judicial Review Act and other legislation.  There is nothing unusual about the applicant's position in this case.  There is nothing about this case which calls for any re-examination as to the law relating to who is an "aggrieved person" under legislation such as that in issue here.

10. Further, it is clear that the decision sought to be reviewed did not impact in any way on the applicant's rights, except possibly if it was contended that the assignor, RAG Australia Coal Pty Limited, was in some way less amenable to proceedings to enforce all obligations with respect to mining on the land in question pursuant to law and contract than was the assignee, Pelsoil NL.  The applicant did not make out such a case at first instance, and there is nothing in the material to raise as a serious issue that particular question.

11. In all the circumstances, I agree that the application for leave to appeal should be refused.

An application for leave to appeal

12. BYRNE J: Mr G C Shaw (“the applicant”) seeks leave to appeal against the dismissal of his application for a statutory order of review in respect of the decision of the Minister for Mines and Energy (“the Minister”) to approve the assignment of a 95% interest in mining lease 70109 from Pelsoil NL (“Pelsoil”) to RAG Australia Coal Pty Limited (“RAG”). In dismissing the challenge pursuant to s 48(1) of the Judicial Review Act 1991 as incompetent for want of standing, the Judge held that the applicant was not a “person aggrieved” within s 20 of the Act.

Assignment of a mining lease

13. The applicant is registered as proprietor of land included within the boundaries of the mining lease. The lease was granted to Portman Mining Ltd (“Portman”) in 1995 not long after Portman and the applicant^[1] entered into a “compensation agreement” pursuant to s 279 of the Mineral Resources Act 1989 (“MRA”). This agreement stipulated for payment of specified compensation instalments. It also obliged Portman to maintain the homestead in “a structurally sound, good livable condition”; and in terms the agreement envisaged that Portman might assign its interest in the lease on condition that the assignee entered into a covenant promising to be bound by the agreement.

14. In January 1996, Portman assigned 95% of its interest in the mining lease to Pelsoil. In November 1999, the Minister conditionally assented to a transfer of Pelsoil’s interest to RAG. By then RAG had entered into possession and was mining. In March 2000, the Acting Mining Registrar informed RAG of approval to RAG’s holding Pelsoil’s interest.

Mining activity and the EMOS

15. The Environmental Management Overview Strategy (“EMOS”) that had been approved before the mining lease was granted allowed for open-cut mining on the property. However, in October or November 1999 the Minister announced his approval of amendments to the EMOS to allow underground mining. Prompted largely by a concern that underground mining could undermine the homestead, the applicant commenced proceedings for judicial review of the Minister’s approval of the EMOS amendments.

Challenge to the assignment approval

16. By separate proceedings, the applicant launched his challenge to the Minister’s decision concerning the assignment to RAG of Pelsoil’s interest in the mining lease. This application for a statutory order of review asserted that the decision to approve the assignment would have an adverse impact on the applicant’s “proprietory and pecuniary interests”, “specifically in relation to” his “rights and remedies” in respect of (i) any non-compliance with the compensation covenant to maintain the homestead in a structurally sound condition; (ii) approval of amendments to the EMOS, “specifically the applicant’s challenge to that decision” by his other judicial review proceedings; and (iii) the Act and otherwise as proprietor of the land. Particulars contended that a detrimental impact on the applicant’s interests derived from the approval of the assignment because, as it was said, that decision purports to authorize a continuing and substantial trespass on the applicant’s land, impacted adversely on the value and usefulness of the homestead, and would diminish the value and productivity of the land through future land subsidence, damage to water storage and quality, reduction of available grazing land, and an increase in disturbance from mining activities as a result of an expansion of mine output.

17. Before the Judge, an additional consideration was said to justify the conclusion that the applicant was a “person aggrieved” within the meaning of s 20 in respect of the decision to approve Pelsoil’s assignment to RAG. RAG had entered into possession before the assignment was approved and commenced mining. This was said to require a conclusion that the mining which RAG thereafter conducted on the land was unlawful, not having been authorized by a mining lease. It was also contended that before the assignment was approved RAG had expanded the mine unlawfully in reliance on the challenged amendments to the EMOS, and that subsidence from new mining threatened the homestead because “there was no commitment in the amended (EMOS) document to cater for subsidence”.

Prejudice consequential upon assignment approval?

18. All these concerns are founded on the notion that the mining in which RAG has engaged, or might yet carry out, may impact adversely on the applicant’s interests; and as much may be assumed. But that does not mean that the impugned decision - to approve the assignment of Pelsoil’s interest to RAG - involved the prospect of some adverse consequence for the applicant or his interests.

19. Neither approval of the assignment, nor the assignment itself, could have prejudiced the applicant’s rights under the compensation agreement. There is no suggestion that Portman had ceased to be bound by that agreement; and by s 276(1)(j) of the MRA, the mining lease was subject to a condition that the holder comply with all the terms of any such agreement. In these circumstances, as the Judge held, the assignment would permit the applicant to enforce the obligation to maintain the homestead against Portman, RAG, and, if Pelsoil had covenanted to do so, against Pelsoil. Moreover, there is no evidence to suggest (and no contention was advanced before the Judge) that any characteristic, capacity or inclination of RAG might disadvantage the applicant or his interests: as, for example, if there were a rational doubt about RAG’s willingness or capacity to perform the obligations Portman had assumed under the compensation agreement in the same way as Pelsoil could have been expected to do.

20. The suggestion of prejudice to the applicant’s rights to prosecute his proceedings challenging amendments to the EMOS has no foundation. Nor is there reason to suppose that the applicant’s rights under the MRA could be jeopardized by the assignment. This leaves for consideration the idea that some arguable disadvantage consequent upon approval of the assignment could be associated with RAG’s mining activity. As to this, the Judge considered that:

“Even if, as the applicant submits, the third respondent is mining unlawfully the applicant does not seem to me to be aggrieved by the decision to approve the assignment. The only logical alternative to approving the assignment is not to approve it. If it were not approved presumably the fourth respondent would be unlawfully mining. The applicant would be no better or worse off.”

21. It was not suggested before the Judge, through evidence or argument, that the nature, extent or consequences of the mining and related activity might possibly have been different were it not for approval of the assignment. And no case was advanced (whether through the grounds stated in the judicial review application and particulars or by argument) to the effect that the identity of the miner might otherwise matter to the applicant or his interests: there was, for example, no suggestion that Pelsoil’s capacity or willingness to perform its obligations in connection with the lease or pursuant to the compensation agreement may have been different from RAG’s.

22. In short, nothing was put before the Judge to suggest a case fit for investigation indicative of present or prospective detriment to the applicant or his interests as a consequence of the assignment.

23. Before us, however, there was criticism of his Honour’s observation that, if the assignment were not approved, “presumably” Pelsoil “would be unlawfully mining”. The presumption, it is said, ought not to have been made, no evidence having been adduced for the respondents tending to show that things would have been the same whether or not the assignment had been approved. Mr Morris QC also submitted that if the Judge had mentioned during argument that he was inclined to such a view, the applicant may have expressed a desire to adduce evidence to try to show that things might relevantly have been different were it not for the approval.

24. In the primary hearing, the applicant confronted contentions that the grounds stated in his judicial review application and particulars did not disclose an arguable case that he was “aggrieved” by approval of the assignment. It therefore fell to him to point at least to a case fit for investigation that his interests were adversely affected by the approval. But there was no suggestion, let alone no evidence to indicate, that the approval of the assignment, as distinct from the mining activity, could disadvantage the applicant or his interests.

25. Even now there is no evidence to indicate either that the identity of the particular lessee could possibly be material to the applicant or his interests or that the applicant, in the event that leave were granted to appeal, might on the hearing of the appeal be in a position to seek leave to adduce evidence that he is arguably worse off by reason of approval of the assignment.

Disposition

26. The proposed appeal would not enjoy reasonable prospects of success. The application for leave to institute it should therefore be refused, with costs to be assessed.