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  4. MacMines Austasia Pty Ltd v Chief Executive, Department of Environment and Science - [2023] QLC 4

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MacMines Austasia Pty Ltd v Chief Executive, Department of Environment and Science[2023] QLC 4

MacMines Austasia Pty Ltd v Chief Executive, Department of Environment and Science[2023] QLC 4

LAND COURT OF QUEENSLAND

CITATION:

MacMines Austasia Pty Ltd v Chief Executive, Department of Environment and Science [2023] QLC 4

PARTIES:

MacMines Austasia Pty Ltd

ACN 088 853 114

(appellant)

v

Chief Executive, Department of Environment and Science

(respondent)

FILE NO:

EPA043-23

PROCEEDING:

Application to stay proceedings 

DELIVERED ON:

24 March 2023

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 21 March 2023

HEARD AT:

On the papers

PRESIDENT:

FY Kingham

ORDERS:

  1. 1.The time for service of the General Application filed on Monday, 20 March 2023 is abridged.
  2. 2.The decision of the Respondent made on 6 December 2022 that the Appellant’s application is not a ‘properly made’ application, and confirmed by review decision made on 6 February 2023, is stayed pending determination of the appeal.
  3. 3.The costs of the application are reserved.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – LAND COURT – PROCEDURE – where application for environmental authority was lodged – where decision that the application was not properly made was appealed to this court – where the appellant sought to stay effect of decision pending determination – whether a stay should be granted

Environmental Protection Act 1994 s 128, s 129, s 528, s 539B

State Development and Public Works Organisation Act 1971

Cougar Energy Limited v Debbie Best, Chief Executive under the Environmental Protection Act 1994 [2011] QPEC 150

  1. [1]
    MacMines Austasia Pty Ltd proposes the China Stone Coal Project, an open-cut and underground thermal coal mine in the Galilee Basin. It has applied to the Chief Executive of the Department of Environment and Science (DES) for an environmental authority (EA) for the project pursuant to the Environmental Protection Act 1994 (Qld).  DES notified MacMines that the EA application was not ‘properly made’ and fixed a date by which MacMines must take specified steps to remedy the perceived deficiencies. The most significant steps involve further assessment of the impacts of exercising underground water rights for the mine.
  1. [2]
    MacMines has appealed that decision to this Court. It says the application is properly made. It seeks orders staying the effect of the decision, pending determination of this appeal.
  1. [3]
    DES offered no evidence or submissions in opposition to a stay. On 21 March 2023, I considered the material filed by MacMines and decided to make the orders set out above. I advised the parties I would provide brief written reasons, which follow.
  1. [4]
    The Court may grant a stay of a decision under appeal to secure the effectiveness of the appeal (s 539B).
  1. [5]
    Although the decision under appeal is administrative, the principles that apply to staying an order of a court exercising civil jurisdiction provide useful guidance. I respectfully adopt the compendious statement of those principles by Jones J in Cougar Energy Limited v Debbie Best, Chief Executive under the Environmental Protection Act 1994[1]:
  1. (1)
    It is not necessary for the applicant for a stay to show special or exceptional circumstances which warrant the grant of a stay.
  2. (2)
    The fundamental justification for granting a stay pending an appeal is to ensure that the orders which might ultimately be made by the court are fully effective.
  3. (3)
    While the prospects of success on the appeal are a relevant consideration, unless it can be said that the appeal is frivolous or not arguable, the court will generally not descend into a detailed assessment of the prospects of the appeal.
  4. (4)
    Finally, will the applicant for the stay be irreparably prejudiced if the stay is not granted.
  1. [6]
    This Court and the Planning and Environment Court have applied those principles consistently when exercising the power granted by s 539B.

Is a stay justified to secure the effectiveness of the appeal?

  1. [7]
    If the appeal is successful, the Court has the power to set the decision aside and either substitute its own decision that the EA application is ‘properly made’ or remit the matter to DES with directions reflecting the Court’s findings (s 528).
  1. [8]
    DES did not contest MacMines’ submissions that:
  1. 1.The EA application will lapse if MacMines does not comply with the notice by 23 March 2023; and
  2. 2.Neither order would be effective if the EA application lapses on that date.
  1. [9]
    The first proposition rests on s 129:

129 When application lapses

  1. (1)
    This section applies if the applicant is given a notice under section 128(2).
  2. (2)
    The application lapses if the applicant does not, within the stated period or the further period agreed between the administering authority and the applicant—
    1. take the action mentioned in section 128(2)(c); and
    2. give the administering authority written notice that the action has been taken.
  1. [10]
    I question MacMines’ second proposition, that the effect of s 129 would be to deprive the Court’s orders of effect.
  1. [11]
    Section 129 applies if a notice is given under s 128(2). DES must give a notice under s 128(2) if MacMines’ EA application is not a ‘properly made’ application (s 128(1)). If, on appeal, the Court finds that MacMines’ EA application is a ‘properly made’ application, as MacMines says it is, then the statutory authorisation for the notice is lacking. Unless there is some other basis for DES issuing the s 128(2) notice, its exercise of the power conferred by s 128 would be unlawful. It would seem to follow that there could be no statutory consequence for non-compliance with an invalid notice.
  1. [12]
    Because I have not heard argument, and I was not referred to any case in which the effect of s 129 has been considered, it is not appropriate to decide the point. However, I have granted the stay in exercise of the Court’s discretion, not because I have found in favour of MacMines’ interpretation of those provisions. In the circumstances, I am satisfied a stay may be required to secure the effectiveness of the appeal.
  1. [13]
    As to the likelihood of non-compliance with the notice, MacMines led evidence from Peter Hansen, an experienced environmental consultant who has worked on this project for about 8 years. He estimates it would take some 6 years to assess the impacts of exercising underground water rights in the way DES requires. As that evidence is uncontested in the stay application, I accept it for that purpose.
  1. [14]
    He has also deposed, as has the solicitor for MacMines, to the steps already taken to attempt to comply with the notice and the impediments to doing so, including on-site conditions.

Is the appeal based on arguable grounds?

  1. [15]
    Central to the dispute between the parties is the effect of the Co-ordinator General’s assessment of the project under the State Development and Public Works Organisation Act 1971. Under the SDPWO Act, the Co-ordinator General declared the project to be a ‘significant project’ and undertook an assessment of its environmental impacts. It accepted MacMines’ Environmental Impact Statement and published an evaluation report, which identified conditions for the project.
  1. [16]
    The grounds of appeal can be summarised in this way:
  1. 1.DES wrongly decided the EA application was not ‘properly made’ on this basis that:
  1. (a)
    it did not include an assessment of the likely impact of the project activities on environmental values (s 125(1)(l)); and
  2. (b)
    it was not accompanied by a Progressive Rehabilitation and Closure Plan (s 125(1)(n)).
  1. 2.MacMines was exempt from those requirements because of the Co-ordinator General’s evaluation report (s 125(3) and s 125(6)).
  2. 3.In any case, DES failed to take into consideration the Co-ordinator General’s evaluation report and the conditions set out in that report in deciding whether the EA application was ‘properly made’.
  1. [17]
    These grounds raise questions of statutory interpretation of the SDPWO Act and the EP Act, both of which have been amended during the history of MacMines’ EA application. They put in issue whether the Co-ordinator General’s evaluation report has the effect of exempting MacMines from the statutory requirements that DES says are not fulfilled. Finally, they challenge DES’ assessment of the material provided in support of the EA application, including the Co-ordinator General’s report.
  1. [18]
    It is not necessary to make a detailed assessment of MacMines’ prospects of success. On their face, the grounds of appeal raise matters of substance and could not be considered frivolous or unarguable.

Will MacMines be irreparably prejudiced if the stay is not granted?

  1. [19]
    I have already expressed my reservations about MacMines’ submission about the effect of s 129. However, I have not made any finding about that. If MacMines is correct in its submission, it would be irreparably prejudiced. Even if it is not correct, the prudent course is for MacMines to do all it can to comply with the notice if it is not stayed. That would involve considerable time and expense that may be wasted and could distract MacMines from fully prosecuting its appeal. On the other hand, DES has not asserted it would be prejudiced by the stay and will abide the order of the Court.

Conclusion

  1. [20]
    One of the orders sought is for time for service of the application to be abridged. The affidavit from MacMines’ solicitor demonstrates DES is not prejudiced by an abridgment of time.
  1. [21]
    This is an uncontested application for a stay. I have reservations about MacMines’ submission that it is necessary to secure the effectiveness of the appeal. In the absence of argument, I have proceeded on the basis that there is some question about that. The appeal raises grounds of substance. MacMines risks irreparable prejudice if the stay is not granted, and DES risks none if it is.
  1. [22]
    The decision should be stayed pending the outcome of the appeal.

Orders

  1. 1.The time for service of the General Application filed on Monday, 20 March 2023 is abridged.
  2. 2.The decision of the Respondent made on 6 December 2022 that the Appellant’s application is not a ‘properly made’ application, and confirmed by review decision made on 6 February 2023, is stayed pending determination of the appeal.
  3. 3.The costs of the application are reserved.

Footnotes

[1] [2011] QPEC 150 [20].

Close

Editorial Notes

  • Published Case Name:

    MacMines Austasia Pty Ltd v Chief Executive, Department of Environment and Science

  • Shortened Case Name:

    MacMines Austasia Pty Ltd v Chief Executive, Department of Environment and Science

  • MNC:

    [2023] QLC 4

  • Court:

    QLC

  • Judge(s):

    FY Kingham

  • Date:

    24 Mar 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Cougar Energy Limited v Best [2011] QPEC 150
2 citations
Jump To
Cite 1 - [2011] QPEC 150
Cite 2 - [2011] QPEC 150

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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