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Skilton v 2PL Superannuation Pty Ltd[2019] QLC 45

Skilton v 2PL Superannuation Pty Ltd[2019] QLC 45

LAND COURT OF QUEENSLAND

CITATION:

Skilton v 2PL Superannuation Pty Ltd [2019] QLC 45

PARTIES:

Gerald David George Skilton

(applicant)

v

2PL Superannuation Pty Ltd

ACN 159 808 536

(respondent)

FILE NO:

MRA201-19

DIVISION:

General Division

PROCEEDING:

Application for stay of proceedings

DELIVERED ON:

4 November 2019 [ex tempore]

DELIVERED AT:

Brisbane

HEARD ON:

4 November 2019

HEARD AT:

Brisbane

MEMBER:

PG Stilgoe OAM

ORDER:

The application to stay the matter filed by the respondent on 17 October 2019 is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE – TRIAL MATTERS – OTHER MATTERS – where both parties were automatically referred to the Court after lapsing of period in relevant mining legislation – where a compensation determination was required for the grant of a mining lease – where the landholder sought a stay of the mining lease compensation proceedings pending the judicial review of the mining lease recommendation – whether the balance of convenience favoured the granting of a stay where the judicial review application was framed so that the mining lease recommendation would either confirm or reject the recommendation but would not otherwise alter the conditions attached to the recommendation

Bengal Coal Pty Ltd v Cradcorp Coal Pty Ltd as TTE [2017] QLC 16, cited

Berry v Green [1999] QCA 213, cited

Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329; [2007] WASCA 230, cited

Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 322, cited

Croney v Nand [1999] 2 Qd R 342; [1998] QCA 367, cited

New Acland Coal Pty Ltd v Smith [2017] QSC 216, cited

Springsure Creek Coal Pty Ltd v Arcturus Downs Limited [2018] QLC 5, distinguished

APPEARANCES:

G Skilton, the applicant (self-represented), respondent for the application for stay of proceedings

P Lonergan (agent), for the respondent, applicant for the application for stay of proceedings

  1. [1]
    This is an application by 2PL Superannuation Pty Ltd to stay a determination of compensation pending the result of a judicial review of my decision to recommend the grant of a lease.[1]
  1. [2]
    The fundamental principle governing applications for a stay is that the successful party is prima facie entitled to the fruits of its judgment, and the question is whether there is some particular feature of a case which warrants departure from that position.[2]
  1. [3]
    The question of whether a stay should be granted is usually addressed according to established principles, which are: is it an appropriate case to grant a stay?[3] Does the applicant have an arguable case on the judicial review?[4] Would a refusal of the stay render the judicial review nugatory?[5] And does the balance of convenience favour the granting of a stay?[6]
  1. [4]
    To paraphrase all of that, in cases of mining objection hearings, Justice Applegarth in the decision of New Acland Coal Pty Ltd v Smith[7] has put the proposition that I have to consider both the prospects of success and the potential for irreparable harm and where the balance of convenience lies.[8]
  1. [5]
    In considering the prospects of success, as I’ve mentioned, this is a judicial review of one of my decisions and it would be improper for me to say at any great length whether or not there has been prospects of success demonstrated, beyond saying that there are arguable grounds for the judicial review to succeed and I need find no more than that.
  1. [6]
    The second question is whether there is going to be irreparable harm resulting from the refusal of a stay. Mr and Ms Lonergan have filed material which speaks of the cost, inconvenience and expense of determining the compensation matter, but they do not speak of irreparable harm and there is nothing in the material to suggest that if I refuse to grant a stay there will be harm suffered by the Lonergans which cannot be addressed in terms of costs or in some other way.
  1. [7]
    So that really leaves me with the question of the balance of convenience, and so what I have to do is weigh up the inconvenience to 2PL Superannuation, as opposed to the inconvenience to Mr Skilton.
  1. [8]
    Mr Skilton has been denied access to a potential mining lease for a considerable period. In fact, the parties have been in dispute since 2016. Mr Skilton has told me that he is keen to access the mining lease and get on with the mining.
  1. [9]
    On the other hand, the Lonergans have spoken of the expense and the time involved in getting the material together for a compensation hearing. They have spoken about the considerable lessons that they learnt from a previous application before the court.
  1. [10]
    They also speak of the potential for changed conditions. However, a consideration of the application for judicial review refers to an ‘all or nothing’ case. They say that I was wrong in recommending the grant of a mining lease. Nowhere in the material can I find any reference to the change of conditions in a way which would affect the potential for compensation.
  1. [11]
    So I am faced with the situation where there is a balance of convenience that the mining lease is either likely to be granted or not granted at all, and there is no suggestion that there are any potential changes of conditions.
  1. [12]
    I should also note a decision of the President in Bengal Coal Pty Ltd v Cradcorp Coal Pty Ltd as TTE, where she stated that “compensation proceedings are not an opportunity to delay the grant of a mining lease”.[9]
  1. [13]
    In this case, while I appreciate that the Lonergans are going to be put to an expense in having to prepare for a compensation case, and the reality is that if the judicial review proceedings are successful those expenses won’t be required at all, on one argument, the truth is that even if they are successful in the judicial review proceedings there is nothing to stop Mr Skilton re-applying and there is nothing to say that that application will not be successful in the future.
  1. [14]
    Given that this is an area which has extensive history of mining claims and mining leases, it is my view that the question of compensation should proceed and that if the judicial review proceedings are not successful, Mr Skilton will have the opportunity to go onto the lease sooner rather than later.
  1. [15]
    I must say that the case here is different from my decision in Springsure Creek,[10] which was a case where I granted a stay on the compensation matter pending the outcome of the mining objection hearing. In that case, I had not yet published a decision about the mining objection hearing. The basis on which compensation might be calculated had significant variables and the costs associated with determining those variables were considerable. The potential compensation in that case was in the multi-million dollar range, far more than being contemplated in this case.
  1. [16]
    Mr Skilton has prosecuted his case as quickly as he could in this proceeding, unlike the decision in Springsure.
  1. [17]
    As a final note, the Lonergans in their material speak of the 30 hours of their own time to prepare a compensation agreement, but there is no suggestion of an agreement. This matter is now before the Court, and while it will take them time to prepare for the proceeding, they have also filed material indicating that they will engage the assistance of others.
  1. [18]
    In summary, the balance of convenience, in my view, in this case, favours the refusal of a stay and that will be my order accordingly.

Order:

The application to stay the matter filed by the respondent on 17 October 2019 is refused.

PG STILGOE OAM

MEMBER OF THE LAND COURT

Footnotes

[1] See Skilton v Lonergan & Ors [2019] QLC 28.

[2] Berry v Green [1999] QCA 213, 2.

[3] Croney v Nand [1999] 2 Qd R 342, 348.

[4] Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453, 455.

[5] Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329, 331.

[6] Kostopoulos v GE Commercial Finance Australia Pty Ltd [2005] QCA 311

[7] [2017] QSC 216.

[8] Ibid 5.

[9] [2017] QLC 16 [39].

[10] Springsure Creek Coal Pty Ltd v Arcturus Downs Limited [2018] QLC 5.

Close

Editorial Notes

  • Published Case Name:

    Gerald David George Skilton v 2PL Superannuation Pty Ltd

  • Shortened Case Name:

    Skilton v 2PL Superannuation Pty Ltd

  • MNC:

    [2019] QLC 45

  • Court:

    QLC

  • Judge(s):

    Member Stilgoe

  • Date:

    04 Nov 2019

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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