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New Acland Coal Pty Ltd v Ashman (No. 2)[2016] QLC 30

New Acland Coal Pty Ltd v Ashman (No. 2)[2016] QLC 30

LAND COURT OF QUEENSLAND

CITATION:

New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No. 2) [2016] QLC 30

PARTIES:

New Acland Coal Pty Ltd

(applicant)

 

v

 

Frank Ashman, Lynn Ashman, John Cook, Patricia Cook, Hazel Green, Paul Mason, Janet Schick, John Schick, Jane Scholefield, Max Scholefield, Desley Spies, Kevin Spies, David Vonhoff, Cheryl Vonhoff, Fay Wieck, Grant Wieck, Simon Wieck

(MRA level 1 objectors)

and

Glenn Norman Beutel, Darling Downs Environmental Council Inc., Angela Mason, Geralyn Patricia McCarron, Oakey Coal Action Alliance Inc., Merilyn Helen Plant, Sid Arthur Plant, Tanya Merilyn Plant, Steven Ward, Noel Wieck

(MRA level 2 objectors)

and

Frank Ashman, Lynn Ashman, Russell Byron, Clean Air Queensland, Christopher Cleary, Naomi Cleary, John Cook, Patricia Cook, Paul Evans, Karen Lavin, Carolyn Lunt, John Millane, Frank Scarano, Jane Scholefield, Max Scholefield, Loretta Smith, Desley Spies, Kevin Spies, David Vonhoff, Cheryl Vonhoff, Fay Wieck, Grant Wieck, Simon Wieck

(EPA level 1 objectors)

and

Glenn Norman Beutel, Pamela Aileen Harrison, Oakey Coal Action Alliance Inc., Merilyn Helen Plant, Sid Arthur Plant, Tanya Merilyn Plant, John Standley, Steven Ward, Noel Wieck

(EPA level 2 objectors)

and

Angela Mason

(EPA s 186(d) party)

and

Chief Executive, Department of Environment and Heritage Protection

(EPA Statutory Party)

FILE NOs:

EPA495-15

MRA496-15

MRA497-15

DIVISION:

General Division

PROCEEDING:

Application for costs by New Acland Coal Pty Ltd

DELIVERED ON:

18 May 2016 [Ex tempore]

DELIVERED AT:

Brisbane 

HEARD ON:

18 May 2016

HEARD AT:

Brisbane

MEMBER:

PA Smith

ORDER:

The application for costs is refused.

CATCHWORDS:

COSTS – Objections to mining lease applications and associated environmental authority – whether Land Court has jurisdiction to order costs in an administrative enquiry – issue recently considered by other Members of the Land Court – held Land Court does not have jurisdiction to order disclosure in an administrative enquiry such as this PRACTICE AND PROCEDURE – numerically small number of members – desirability of having consistent approach on matters relating to jurisdiction

Environmental Protection Act 1994

Mineral Resources Act 1989

Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors (No. 2) [2016] QLC 22

Baralaba Coal Pty Ltd & Anor (administrators appointed) v Stephenson & Anor (No. 2) [2016] QLC 25

BHP Billiton Mitsui Coal Pty Ltd v Isdale (2015) QSC 107

Legend International Holdings Inc v Taylor Aly Awaditijia & Anor (No. 4) [2016] QLC 23

APPEARANCES:

Mr P Ambrose QC for New Acland Coal Pty Ltd

Mr S Holt QC for the Oakey Coal Action Alliance Inc

Mr P Brown and Ms J Carroll for the statutory party

SOLICITORS:

Clayton Utz for the applicant

Environmental Defenders Office for the Oakey Coal Action Alliance Inc

  1. [1]
    I have delivered a decision refusing an application brought by an objector, Oakey Coal Action Alliance, for disclosure against the applicant, New Acland Coal Pty Ltd. As a result of my order, Mr Ambrose QC for New Acland Coal has made an application for costs.
  2. [2]
    Of course, this application for costs comes at a time following the Supreme Court decision in BHP Billiton Mitsui Coal Pty Ltd v Isdale[1] which dealt with matters such as this being more in the nature of inquiries than proceedings. BHP v Isdale made certain direct findings as to the nature of proceedings.
  3. [3]
    I understand that this remains an area of some doubt. However, at the present time there are three recent decisions of other Members of the Land Court, including two of the President of the Land Court, they being Adani Mining Pty Ltd v Land Services of Coast and Country & Ors (No. 2),[2] Legend International Holdings v Taylor & Anor (No. 4)[3] and Baralaba Coal Pty Ltd & Anor (administrators appointed) v Stephenson & Anor (No. 2),[4] which have found that the Land Court does not have jurisdiction to award costs in matters such as this.
  4. [4]
    The position was summarised by the President in Legend (No. 4) where she summarised her conclusions in Adani (No. 2) in the following way:[5]

“[13] I have considered that issue in some details in my decision in Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors (No. 2) where, for the reasons set out therein, I came to the conclusion that s 34 LCA does not provide jurisdiction for the Land Court to award costs in referral matters. It is unnecessary to repeat that reasoning here in full, but in essence I held that the Land Court’s function in dealing with referral matters is administrative in nature in that the Court is required to conduct an enquiry and make a recommendation to the Minister or administering authority. The Court does not finally determine the rights of the mining lease applicant. Consequently, I held that the enquiry is not a proceeding within the meaning of that term as used in s 34 LCA, and the Land Court does not have jurisdiction to award costs, under s 34, of an administrative enquiry.”

  1. [5]
    It is important for small courts such as this Court to at least be informed by the decisions of other Members of the Court. I am aware that the State Government has for almost 12 months been looking at the question as to special legislation dealing with the question of the extent of jurisdiction in referral matters. Of course, life must go on whilst the question remains unlegislatively resolved. In my view it is important to present as consistent a stance as possible judicially between the Members of the Land Court so that the parties, as confused as they may be as to the law that operates in these type of matters, may at least have some form of precision.
  2. [6]
    None of my comments in the preceding paragraph should be taken as derogating in any way with the rulings made by the President of this Court and Member Isdale regarding the ability of the Court to make awards for costs in matters relating to the referral of mining lease and environmental authority applications. I agree wholeheartedly with the conclusions in those recent cases. It is unnecessary in those circumstances for me to consider the alternative submissions by Mr Hold QC that this is not an appropriate case in any way for costs to be awarded.
  3. [7]
    In light of my understanding relating to the recent like cases on this jurisdiction question, the application for costs is refused.

ORDER

The application for costs is refused.

PA SMITH

MEMBER OF THE LAND COURT

Footnotes

[1]  (2015) QSC 107.

[2]  [2016] QLC 22.

[3]  [2016] QLC 23.

[4]  [2016] QLC 25.

[5]  [2016- QLC 23 2 [13].

Close

Editorial Notes

  • Published Case Name:

    New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No. 2)

  • Shortened Case Name:

    New Acland Coal Pty Ltd v Ashman (No. 2)

  • MNC:

    [2016] QLC 30

  • Court:

    QLC

  • Judge(s):

    Member Smith

  • Date:

    18 May 2016

Appeal Status

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

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