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Sunland Cattle Co Pty Ltd v Kingham QSC 287
SUPREME COURT OF QUEENSLAND
Sunland Cattle Co Pty Ltd v Kingham & Ors  QSC 287
SUNLAND CATTLE CO PTY LTD
FLEUR KINGHAM - PRESIDENT OF THE LAND COURT OF QUEENSLAND
PEMBROKE OLIVE DOWNS PTY LTD
MINISTER FOR NATURAL RESOURCES, MINES AND ENERGY
BS No 9292 of 2020
Supreme Court at Brisbane
8 November 2021
9 December 2020, further submissions filed 10 and 14 May 2021
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the Land Court recommended that the Minister grant four of the mining leases and that the fifth be granted with a reduced area – where the applicant submits that the Land Court was required to undertake an investigation into matters of public interest – the second respondent submits that the Land Court does not have a duty to investigate matters beyond the evidence presented to the Court – whether the Land Court failed to conduct the hearing as required by law
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the Land Court found, with respect to the impact on surface water users downstream of the mine, that “there is no evidence that other users will be adversely affected” – where the applicant submits that there was evidence about the likely adverse impacts on surface water users downstream – whether the Land Court’s decision failed to take into account a relevant consideration
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the applicant submits that the Land Court had a duty to make enquiries beyond the evidence regarding the downstream user issues – where the applicant submits that the Land Court should have directed the experts to “meaningfully consider the issue” – whether the Land Court’s decision was unavailable or unsupported by the evidence before the Court
Judicial Review Act 1991
Land Court Act 2000
Migration Act 1958 (Cth), s 424
Mineral Resources Act 1989, s 265, s 268, s 269, s 271A
Uniform Civil Procedure Rules 1999, r 211
ABT v Minister for Immigration and Border Protection (2020) 269 CLR 439
ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation  1 Qd R 347
BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors  QSC 107
Dunn v Burtenshaw (2010) 31 QLCR 156
Lonergan v Stilgoe  QSC 86
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 25
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15
Minister for Immigration v Yusuf (2001) 206 CLR 323
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors (2021) 386 ALR 212
Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343
Re Warden French; Ex parte Serpentine-Jarrahdale Ratepayers and Residents Association (1994) 11 WAR 315
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 578
Symbolic Resources Pty Ltd v Kingham (2020) 5 QR 155
Wall v Windridge  1 Qd R 329
D Kelly QC, M Plunkett and S Marsh for the applicant
No appearance for the first respondent
SC Holt QC and AD Scott for the second respondent
JM Horton QC and M Purcell for the third respondent
Emanate Legal for the applicant
No appearance for the first respondent
Allens for the second respondent
Crown Law for the third respondent
- Pembroke Olive Downs Pty Ltd proposes to conduct a coal mine (Olive Downs) in an area about 40 kilometres south-east of Moranbah. For that purpose, it applied for five mining leases (MLAs).
- One of the entities affected by the leases sought by Pembroke is Sunland Cattle Co Pty Ltd. It owns Old Bombandy Station, which is a cattle property of about 11,000 hectares. The property is downstream from the proposed mine and fronts the Isaac River for about 20 kilometres. The Isaac River runs through, or along the boundaries of, the proposed leases.
- Sunland objected to the leases being sought on the principal ground that the operation would adversely affect Sunland’s property and the operations of Old Bombandy Station. There were two other objectors (Namrog Investments Pty Ltd and Balanced Property Pty Ltd), but they are not parties to this application.
- The applications for the leases and the objections were referred to the Land Court to make a recommendation to the Minister for Natural Resources, Mines and Energy. The President of the Land Court conducted the hearing, and she recommended that the Minister grant four of the leases and that the fifth be granted with a reduced area (“the Land Court decision”).
- After receipt of the recommendation the Minister decided to grant three of the leases (“the Minister’s decision”).
- Sunland seeks a statutory order of review and orders that:
- (a)the Land Court decision and the Minister’s decision be quashed or set aside,
- (b)the matter be remitted to the Land Court for reconsideration, and
- (c)there be declarations of the rights of the parties in this matter and that the Land Court decision is void.
- Sunland’s application set out four grounds. At the hearing, only three were pursued:
- (a)procedural – a failure to observe the required procedures by the Land Court,
- (b)a failure to consider relevant matters, and
- (c)the decision is unreasonable.
The Isaac River
- The Isaac River is a major drainage feature of the Isaac Connors catchment, a sub-catchment of the upper Fitzroy Basin. The Isaac River is an ephemeral river, that is, there is no flow in the river system for some reasonable period of the year. Flow is experienced only after sustained or intense rainfall in the catchment.
- A Draft Environmental Impact Statement concerning Olive Downs was received in evidence. It states, in part, that:
“The Project is located within the headwaters of the Isaac sub- catchment of the greater Fitzroy Basin. The Isaac River is the main watercourse which bisects the project area and flows in a general north-west to south-east direction past the Project. Tributaries of the Isaac River in the vicinity of the Project include (from upstream to downstream):
▪ North Creek;
▪ Ripstone Creek;
▪ Boomerang Creek; and
▪ Phillips Creek.
A review of existing surface water licences along the Isaac River indicates that five surface water users are located upstream of the Project, five are located downstream of the Project, with an additional two users whose location is unknown. The licences are used for mining, diverting flow, irrigation, stock, impounding water, construction and domestic supply.”
- Sunland made a number of objections to the granting of the leases, but principally on the basis that the mining proposal would have adverse impacts and potentially severe and long-term adverse impacts on the quantity, quality and ecology of the water in the Isaac River.
- The objections to each of the five MLAs were relevantly the same and included these particular grounds:
- (a)adverse environmental impacts would be caused by the mining operation, which was not in the public interest,
- (b)loss of agricultural land contrary to the public interest,
- (c)adverse impacts upon Sunland’s agricultural enterprise, and
- (d)inappropriate land use dealing with surface water and groundwater.
The nature of the proceedings in the Land Court
- The applications and objections were referred to the Land Court pursuant to s 265 of the Mineral Resources Act 1989 (“MRA”).
- The hearing of an application with respect to the grant of a mining lease is conducted in accordance with s 268 of the MRA. It relevantly provides:
“(1) On the date fixed for the hearing of the application for the grant of the mining lease and objections thereto, the Land Court shall hear the application and objections thereto and all other matters that pursuant to this part are to be heard, considered or determined by the Land Court in respect of that application at the one hearing of the Land Court.
- (2)At a hearing pursuant to subsection (1) the Land Court shall take such evidence, shall hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters and shall not be bound by any rule or practice as to evidence.
- (3)The Land Court shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application.”
- Section 269(4) of the MRA sets out what the Land Court must consider:
“(4)The Land Court, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider whether—
- (a)the provisions of this Act have been complied with; and
- (b)the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate; and
- (c)if the land applied for is mineralised, there will be an acceptable level of development and utilisation of the mineral resources within the area applied for; and
- (d)the land and the surface area of the land in respect of which the mining lease is sought is of an appropriate size and shape in relation to—
- (i)the matters mentioned in paragraphs (b) and (c); and
- (ii)the type and location of the activities proposed to be carried out under the lease and their likely impact on the surface of the land; and
- (e)the term sought is appropriate; and
- (f)the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease; and
- (g)the past performance of the applicant has been satisfactory; and
- (h)any disadvantage may result to the rights of—
- (i)holders of existing exploration permits or mineral development licences; or
- (ii)existing applicants for exploration permits or mineral development licences; and
- (i)the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management; and
- (j)there will be any adverse environmental impact caused by those operations and, if so, the extent thereof; and
(k) the public right and interest will be prejudiced; and
(l) any good reason has been shown for a refusal to grant the mining lease; and
(m) taking into consideration the current and prospective uses of that land, the proposed mining operation is an appropriate land use.”
- The basic principles relating to a hearing of this kind are:
- (a)the Land Court’s recommendation, favourable or unfavourable, is a pre-requisite to the grant of a mining lease,
- (b)the making of a recommendation under s 269 of the MRA is reviewable under the Judicial Review Act 1991 (“JRA”),
- (c)the recommendation is an administrative step, consequent upon a prescribed statutory enquiry, not an adjudication of matters in issue.
The nature of the Land Court’s task
- The Land Court does not make a decision in the usual sense of that word. It does not review a decision by another body. It does not replace another body’s decision with its own. Those matters must be borne in mind when considering the authorities, which relate to different circumstances in which a tribunal or individual decision-maker makes a decision or determination.
- Section 269(1) provides that after the hearing in respect of an application for the grant of a mining lease, the Land Court must forward to the Minister any objections lodged in relation to the application and the Land Court’s recommendation. The Minister must then consider the application, the Land Court recommendation, and the matters set out in s 269(4). The Minister is not bound by the recommendation and, under s 271A, may grant the mining lease for the whole or part of the land, may reject the application, or may refer the matter to the Land Court to conduct a further hearing either generally or on specific matters raised by the Minister.
- So far as the parties are concerned, the Minister is the decision-maker. The Minister could, for example, reject a favourable recommendation from the Land Court and refuse an application for a mining lease.
The hearing in the Land Court
- The hearing was conducted in accordance with the provisions of a practice direction of the Land Court – Land Court of Queensland, Practice Direction 4 of 2018: Procedure for Mining Objection Hearings, 7 April 2020.
- The parties to the hearing adduced evidence from experts in the relevant fields, and the process of preparing the expert opinion evidence was managed by the Land Court pursuant to another practice direction – Land Court of Queensland, Practice Direction 3 of 2018: Procedure for Court Managed Expert Evidence, 30 April 2018. In accordance with that Practice Direction, the experts retained by each party produced a joint expert report.
- The joint expert report considered the effect of the proposed mining activities on, among other things, the flow duration of the Isaac River. The report referred to the Draft Environmental Impact Statement and said:
“The EIS also mentions that application has been made for surface water extraction from the Isaac River for make-up purposes. That is, the water balance analysis has shown that there is a shortfall of available water supply at certain times during the operation of the mine. It is proposed in the EIS that this shortfall will be made up by surface water extraction. No details as to this extraction are contained within the EIS. The Isaac River (Station 13041 OA) daily flow duration curve in Figure 8 shows that the river flows 26.6% of the time with a flow exceeding 0.01 ML/day. There has been no formal assessment of the effect of mining activities on the flow duration curve of the Isaac River, or indeed of the tributaries, in consideration of:
▪ the increased losses from the River to groundwater arising from the groundwater drawdown due to mining activities;
▪ the increased losses from the River due to extraction of make-up water; and
▪ the inputs to the River arising from controlled releases from mine water dams.
In this report, we make some preliminary assessment of these effects.
Assuming an average loss of 2.6 ML/day during the period of mining, and applying those losses to the flow duration curve, reduces flows exceeding 0.01 ML/d to about 22.3% of the time. A peak loss of 4.0 ML/day would reduce comparable flows to about 21.6% of the time.
This is a reduction in available flow duration by 16% considering average loss rates, and 19% considering peak losses. This would affect the duration of low flow conditions and possibly remnant pools (ecological refugia) in the river as a consequence of mining.”
First Ground – a failure to conduct the hearing as required by law
- Sunland argues that the first respondent was required to undertake an investigation into matters of public interest which, in this case, included how the proposed mine would affect downstream water users with respect to both surface water and near-surface groundwater. It was submitted that the necessity for such an investigation arises from the requirement, in s 269(4)(k), that the Land Court take into account and consider whether the public interest will be prejudiced. Sunland contended that the matter of public interest that was germane concerned the impact of the reduction in the flow duration curve of the Isaac River on the existing users of that water resource.
- In advancing this proposition, Sunland commenced by referring to the reasoning of McMurdo J in BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors. In that case, McMurdo J was faced with two questions. First, whether Chapter 7 of the Uniform Civil Procedure Rules 1999 applied so that BHP could be required to make disclosure of documents under that Chapter. Secondly, whether the Land Court’s ruling on that point was susceptible to judicial review.
- His Honour held that the rulings made were able to be reviewed under the JRA. In determining whether Chapter 7 could be applied, he considered whether the applications by BHP in the Land Court were “proceedings” in that court and whether the notion of a duty of disclosure (as imposed by r 211 UCPR) applied.
- Sunland relied on the following to support its contention that the Land Court’s task is wider than it would be if this were ordinary litigation:
“ There is a further difficulty in the notion that the duty of disclosure imposed by r 211 of the UCPR is to be imposed in the present context. The content of that duty is defined by what is ‘in issue’. A party must disclose a document which is directly relevant to an allegation in issue in the proceedings, or if there are no pleadings, directly relevant to a matter in issue in the proceeding. In adversarial civil litigation, it is for the parties to determine what should constitute the matters in issue. In turn, that leaves it to the parties to effectively define the scope of the duty of disclosure because if an allegation by one party is admitted by the other, it is not a matter in issue.
 But in referrals to the Land Court of the present kind, the scope of the court’s factual inquiry is not defined by the parties. Their respective arguments and the evidence which they present are to be considered. But the Land Court must have regard to considerations which extend beyond the respective interests of the applicant and the objectors. In particular, it must consider the public interest.
 In Sinclair v Mining Warden at Maryborough, the High Court held that a writ of mandamus should be granted and directed to a mining warden who had erred in a case of the present kind. That was an application for a mining lease for which the appellant was an objector. One error of the warden was found to be in his failure to consider whether the granting of the application would prejudicially affect the public interest. Barwick CJ said that the warden was bound to consider that matter ‘irrespective of the interests of the objectors or their number and, indeed, irrespective of the existence of an objection on [the public interest] ground’.
 Therefore the process of disclosure under Chapter 7 of the UCPR is seemingly inapt, where the Land Court is not asked to adjudicate upon matters in issue but instead to provide an advice to an administrative decision maker. ...” (emphasis added, citations omitted)
- Sunland also relied on the decision of the Land Appeal Court of Queensland in Dunn v Burtenshaw. In that case, an objector sought to appeal against a Land Court recommendation that mining leases be granted subject to special conditions. The Court referred to decisions in other jurisdictions with similar legislation. The consistent view was that a recommendation by a mining warden was an outcome of a ministerial or administrative function rather than a judicial function. In one of those decisions, Re Warden French; Ex parte Serpentine-Jarrahdale Ratepayers and Residents Association, Ipp J (with whom Kennedy J agreed) said:
“The Warden, in making recommendations to the Minister concerning mining lease applications, does not exercise a discretion as to ‘questions of policy and principal exploration of mineral deposits in this State’. That is a matter within the province of the Minister. Nevertheless there are very good reasons why the Warden should first investigate matters of public interest, in open court, with full opportunity for matters to be contested and argued, so that the Minister is fully apprised of all relevant material, that has fairly and publicly been ventilated, before making a decision: cf Sinclair v Mining Warden at Maryborough (at 481).” (emphasis added)
- The applicant also relies upon Barwick CJ’s statement in Sinclair v Mining Warden at Maryborough. It needs to be set out at some length as it is the basis upon which later cases have considered the role of the Court:
“I cannot accept the proposition that the hearing of the application and of the objections is a mere formality: nor can I accept the submission made on behalf of the respondent company that the warden cannot be expected to examine in depth matters which would justify a recommendation that the application be refused or which would justify the acceptance of objections raised to the grant of the mining lease. The mining warden’s recommendation, whether favourable or unfavourable, is a prerequisite to the grant of a mining lease. Whilst it is clear that the Minister may reject the warden's recommendation, it is also equally clear that a mining lease may not be granted unless there has been a recommendation, either favourable or unfavourable, of a mining warden. This emphasizes the place in the scheme of the grant of mining leases which is occupied by the hearing by the warden of the application and objections. Leasing Crown land for a term of up to twenty-one years with such rights of renewal as are contained in s. 25 of the Act is no light matter. It is plain from the provisions of reg. 39 (2) and (3) that the absence of prejudice to the public interest or right is a paramount consideration in the process of determining whether a mining lease should or should not be granted.
I would therefore allow the appeal and grant a writ of mandamus to the warden requiring him to hear the applications and the objections according to law on two grounds: first, that the warden failed to appreciate that, in order to warrant a recommendation of acceptance of the applications, it was not enough that the formalities for application had been observed. It was essential that there be material before him, quite apart from any objection, which would warrant an affirmative conclusion on the substance of the applications that the recommendations should be made. This, at the least. required that he be satisfied that the areas applied for held mineral, and that no greater area was recommended than was reasonably necessary for the efficient extraction of the mineral of whose presence there was evidence.” (emphasis added)
- Relying upon those authorities, the applicant arrived at this description of the function of the process undertaken by the Land Court:
- (a)The Land Court is acting administratively in an advisory function,
- (b)The recommendation is made following a factual enquiry,
- (c)The factual enquiry is not defined by the parties,
- (d)The factual enquiry must have regard to and consider matters beyond the interests of the parties – the state of the parties’ evidence does not limit or confine the matters which are required to be inquired into,
- (e)There is no onus of proof on any party, and
- (f)The Court is not bound by any rule or practice as to evidence.
- For the purposes of this application, Sunland contends that the Land Court failed to conduct the hearing as required by law. It argued that the MRA contains a statutory scheme that requires that the Land Court examine in depth all matters which would justify a recommendation that the application be granted, or which would justify the acceptance of the objections raised. Sunland says that the first respondent did not comply with that “statutory scheme” in that she did not investigate matters of public interest so far as they concerned entities who were further downstream from Sunland.
- Pembroke submits that the Land Court does not have a duty to investigate matters beyond the evidence presented to the Court.
- The argument advanced by Pembroke commences with the observation that, in the absence of an objection, the application for a mining lease is not referred to the Land Court at all, rather it is transmitted to the Minister for determination. Further, if all objections are withdrawn or struck out, the Land Court may remit the matter to the Chief Executive – s 265(10).
- The next step is to consider s 268 of the MRA which provides that when there has been an objection, the Land Court is to hear the application and objections and all other matters that pursuant to Part 1 of Chapter 6 of the MRA are to be heard. At the hearing, the Land Court “shall take such evidence, shall hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters and shall not be bound by any rules or practice as to evidence” – s 268(2).
- The Land Court is confined in the matters it can consider by way of objection. Section 268(3) prohibits it from entertaining an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged. The effect of this provision needs to be considered alongside s 269(4) which sets out matters which the Land Court must take into account and consider. One of those matters is whether the public right and interest will be prejudiced (s 269(4)(k)).
- Pembroke argues that the requirement that the Land Court “take into account and consider” the matters listed in s 269(4) does not mean that the Court must embark upon an enquiry with respect to each of those matters.
- I turn first to a decision of the Full Court of the Supreme Court of Western Australia – Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd. A bench of five judges was constituted because it was argued that Re Warden French had been wrongly decided. Steytler J (with whom Kennedy, White and Wheeler JJ agreed) held that Re Warden French should not be disturbed. In doing so, he considered the duties of the mining warden in accordance with the legislation, which is very similar to that contained in the MRA. In particular, he dealt with what he called some “general policy considerations” and said:
“The first is that the Warden does not have to embark upon a full-scale investigation into environmental or other public policy matters merely because an objection in that respect has been made. She or he may, for example, be satisfied that sufficient protection would be obtained by the application of the provisions of the Environmental Protection Act. In that event the Warden may do no more than make a recommendation as to the implementation of measures provided for by that Act.” (emphasis added)
- A similar, but obiter, expression of opinion can be found in Wall v Windridge. In that case, a Mining Warden recommended the grant of a mining lease to South Blackwater Coal Ltd (“SBCL”). After the hearing of the appellant’s objections concluded, the Warden received further information from SBCL relevant to the appellant’s objections. The Warden did not tell the appellant that he had received the information and acted upon it in making his recommendation. The provisions of the MRA at that time were relevantly the same as the current provisions. Pincus JA (with whom Moynihan and Ambrose JJ agreed) expressed a view about the extent of the Warden’s duties:
“The hearing may of course be adjourned (s 268(6)) but that is not what happened here. Without reaching a firm conclusion as to what constraints are placed on the warden by the terms of s 268(3), I expressed the view that it does not contain any language encouraging the notion that, after the hearing concludes, the warden may further pursue the task of gathering information about the issues then raised before him.”
- The relevance of that statement is not that it deals with actions by a warden after a hearing has concluded but that it eschews the notion of gathering information.
- Sunland relied on the decision of the High Court in Sinclair v Mining Warden at Maryborough for the proposition that the decision of the Land Court was required to be informed about, take into account and consider whether the public interest would be prejudiced. The complaint by Sunland is about the “failure” of the Land Court to conduct an enquiry that accounted for the public interest. The decision in Sinclair does not require that. That was a case in which it was held that the “warden failed to understand that irrespective of the interests of the objectors or their number and, indeed, irrespective of the existence of an objection on that ground that he was bound to consider whether the granting of the application would prejudicially affect the public interest”.
- Chief Justice Barwick referred to the legislation and the purpose of notifying the making of the applications and indicating the time for objections and of the date of hearing. He said that was to afford “the applicant on the one hand an opportunity to justify in a public hearing the granting of a mining lease, both in point of the area and in point of term, and also to give the public an opportunity of opposition supported by evidence to the grant of a mining lease.” This statement is consistent with the proposition made by Pembroke that it was for the Land Court to consider the matters in s 269(4) by reference to the material before it. Barwick CJ went on to say that he would not accept a submission that the warden cannot be expected to examine in depth matters which would justify a recommendation that the application be refused, in other words, the warden is expected to conduct an in-depth examination. He went on to observe that it was not enough that the formalities for application had been observed, he said that it “was essential that there be material before [the warden], quite apart from any objection, which would warrant an affirmative conclusion on the substance of the applications that the recommendations should be made.” It should be borne in mind that the public interest may also favour the granting of a mining lease, and Barwick CJ has pointed out that there must be material before the court which allows such a conclusion to be drawn.
- Further consideration was given by Stephen J to the necessity for evidence to be provided. He summarised the evidence which was before the warden and went on to state what he considered to be the task involved in hearing an application for the grant of a mining lease and any objections to it, particularly where the question of the public interest is raised. With respect to the relevant regulation, he said:
“Any consideration of the public interest for the purposes of reg. 39(2)(a) should, I think, involve the weighing of benefits and detriments. In this task a warden will not be required to pursue his own enquiries; he may confine himself to the material placed before him by the parties.” (emphasis added)
- While the statement by Stephen J is not part of the ratio of the decision, it nevertheless is consistent with the other judgments given and carries weight.
- The absence of a duty to inquire is consistent with the decision in Minister for Immigration and Citizenship v SZIAI. In that case, the High Court considered the duty of the Refugee Review Tribunal (“RRT”) after it received a valid application for the review of a particular decision. The immediate difference between the RRT and the Land Court is that the former is making a decision and standing in the shoes of the original decision-maker while the Land Court is merely making a recommendation. Nevertheless, the similarity of the legislation considered means that this decision is persuasive so far as consideration of the appropriate construction of the MRA is concerned.
- Section 424 of the Migration Act 1958 is similar in relevant respects to s 268(2) of the MRA. That section of the Migration Act, which abandons elegance of expression in favour of bluntness, provides:
“(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.”
- In considering that section, six members of the Court said:
“ … In the exercise of its review function, the tribunal may obtain such information as it considers relevant. In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act.” (emphasis added)
- I do not accept the construction of the MRA which leads the applicant to argue that the first respondent had a duty to engage in an in-depth enquiry into matters such as the public interest. The terms of the functions to be performed by the Land Court are to be drawn, at first, from s 268.
- Section 268 and s 269 were considered by the Court of Appeal in ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation. In that case, the President of the Land and Resources Tribunal had made an order requiring the parties to file and serve on each other outlines addressing: the matters of compliance or non-compliance with the MRA, those issues in dispute as raised in the various objections, and an outline of the evidence intended to be adduced by that party on each such matter. That order was set aside. Mullins J (with whom Davies JA and Mackenzie J agreed) considered the construction of the relevant sections and said:
“ On the express terms of s. 268(1) of the MRA, the Tribunal’s jurisdiction is not limited to the application and any objections to the application. It is extended to ‘all other matters that pursuant to this part are to be heard, considered or determined by the tribunal in respect of that application’. This picks up the words which are then found in s. 269(4) which requires the Tribunal encounter to ‘take into account and consider’ each of the matters set out in paragraphs (a) to (m) of s. 269(4) of the MRA.
 Section 268(2) of the MRA allows the Tribunal in undertaking the hearing required of it by s. 268(1) to take such evidence, hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters. The reference to ‘other matters’ in s. 268(2) is a reference to the expanded phrase that is used in s. 268(1) which amongst other things incorporates the matters to be considered by the Tribunal under s. 269(4) of the MRA which are not otherwise covered by the application itself and any objections.”
 Section 268(3) of the MRA by its express terms restricts the power of the Tribunal to receive evidence on the hearing under pt 7 of the MRA in relation to any ground of objection that has not been duly lodged. As was submitted by the appellant, the legislative history of ss 268(2) and (3) suggests that the provisions should be read together. Section 268(3) is given effect by allowing it to modify the operation of s. 268(2) in relation to what the Tribunal receives from an objector.
 That has the result that at the hearing pursuant to s. 268(1) of the MRA, the Tribunal can entertain an objection and receive evidence from the respondent which relates only to a ground in its duly lodged objection. The making of submissions by an objector in relation to an issue equates to the entertaining of an objection on that issue by the Tribunal.
 The distinction drawn by the learned President between hearing submissions and evidence from an objector which do not relate to the objector’s objection on the basis that they relate to the other matters in relation to the application (apart from the objection) which the Tribunal has power to hear is not borne out by the plain language of ss 268(2) and (3) of the MRA. The powers given to the Tribunal pursuant to s. 268(2) of the MRA are wider than the powers of the Tribunal in relation to the hearing of an objection which are the subject of s. 268(3). At the hearing under s. 268(1) of the MRA the respondent is limited to making submissions to and placing evidence before the Tribunal which relate to a ground in its objection. The purpose of s. 268(1) of the MRA is not defeated by giving effect to the plain language of ss 268(2) and (3) of the MRA.” (emphasis added)
- From the decision in Quandamooka and authorities which have followed it, the following may be drawn:
- (a)Section 268 requires that the Land Court hear the application and the objections and all other matters that pursuant to Part 1 of Chapter 6 of the MRA are to be heard, considered or determined by the Land Court. That is to be done “at the one hearing” of the Land Court. The Court can, of course, adjourn the hearing from time to time – s 268(5).
- (b)Section 268(2) provides that the Court’s function is to “hear” the application and the objections and to “determine the relative merits” of them. It is to inform itself “in such manner as it considers appropriate” about the application and the objections and other matters. In doing so, it is not bound by any rule or practice as to evidence.
- (c)Finally, and importantly, s 268(3) confines the matters and the evidence which may be considered by the Land Court, so far as objections are concerned, to that which is contained in the objections which have been duly lodged.
- There is a discretion afforded to the Court in s 268(2) to inform itself in such manner as it considers appropriate. That discretion is sufficiently wide to allow it to conduct a hearing by reference only to the matters raised in the objections which have been filed and the evidence which the parties provide in the hearing. The existence of that discretion is inconsistent with the construction propounded by Sunland, namely, that there is a duty imposed on the Court to undertake particular investigations or enquiries.
- There are other matters which tell against the construction advanced by Sunland. There is nothing in the relevant statutes – the Land Court Act 2000 or the MRA – which provides the type of powers that would be necessary if the Court were to engage in the inquiries promoted by Sunland. Sunland did not advance any theory as to the mechanism which might be available to the Land Court to undertake investigations and, if that were to occur, how any findings would be dealt with in any hearing.
- If, as Sunland contends, the Court is required to undertake such investigations, then one might expect that to be made plain by provision for the manner in which investigations were to take place.
- In Sunland’s written submissions, it argues that the recommendation which was made could only have been properly made if the first respondent had first conducted an investigation or enquiry into the circumstances of the other users of water from the Isaac River. By “other users”, Sunland refers to persons who had not objected. That, with respect, demonstrates the problem with Sunland’s submission. Section 268(3) prohibits the Land Court from hearing any evidence in relation to any ground if that ground is not contained in an objection that has been duly lodged. Section 268(3) effectively works to place a boundary around the objections which have been made and excludes the Land Court from going outside that boundary when considering those objections.
- The matters which Sunland now says were not, but which should have been, investigated were not sought to be investigated at the hearing. It did not argue, at that time, that the first respondent was duty bound to inquire further. On a hearing of this nature, it is not the role of the Land Court to run down every hare which may be started by an objector. Even more so, when the objector did not point to the hare on the horizon and set off in pursuit itself.
- The basis upon which Sunland advanced this ground is not supported by the proper construction of the relevant sections of the MRA. This ground must be dismissed.
Second ground - the decision failed to take into account a relevant consideration
- Section 269(4)(j) requires the Land Court to take into account and consider whether the operations at the proposed mine will cause any adverse environmental impact. In dealing with that, the first respondent noted that the objections taken by the objector had narrowed considerably before and during the hearing. The focus was on water impacts. On the first day of the hearing, Sunland submitted that it wished to be heard only in relation to groundwater and surface water. Although it did not formally abandon or withdraw other objections, it did not contest expert evidence led by Pembroke on a large number of matters. Sunland confined its argument to groundwater and surface water issues.
- The first respondent commenced dealing with water issues by referring to the three joint expert reports relating to those issues. She concluded that the parties agreed that there were five broad issues in dispute relevant to water:
- (a)the reduction in flow duration in the Isaac River,
- (b)the impact of the causeway on the flow of the Isaac River,
- (d)mine water quality, and
- (e)overland flow.
- Under the heading “Surface water”, the first respondent noted that one effect of the changes would be a loss of surface water from the Isaac River to the groundwater system.
- Her Honour went on to observe:
“ Sunland holds a water licence with a nominal entitlement of 1,250 ML/yr and a mean annual diversion of 600 ML. Dr Johnson observed infrastructure on Old Bombandy that would enable Sunland to extract surface water from the Isaac River, although he saw no evidence that water had been taken under the licence.
 In any case, Sunland is not authorised to take water under the licence unless the flow in the Isaac River immediately downstream of the point of take is at least 1,080 ML/day.107 The three surface water experts, Mr Roads, Dr Johnson and Mr McAlister, agree the groundwater drawdown will not affect Sunland’s ability to fully utilise this water licence.
 There is limited evidence about other surface water extraction downstream from the mine. There are four other downstream surface water licences connected to a total of three properties on the Isaac River.109 There is no evidence about the conditions of these licences. However, their distance from the project is an important consideration.
 Dr Johnson agreed with Mr Roads that the impact on surface water becomes less important to the overall function of the stream as you go downstream. He said: The impact of the loss [indistinct] the mines will reduce as we go downstream, as the catchment becomes bigger. So, at some point downstream, the impact becomes negligible. It’s small to begin with and, by the time we’re significantly downstream, it doesn’t register at all.
 The three properties affected are located approximately 55 km to 79 km downstream of the project. They are well outside the zone affected by the groundwater drawdown, as modelled in the EIS. They are also beyond the 52 km modelled for the surface water loss. In the absence of evidence to indicate a likely impact, it is reasonable to assume that there will be negligible, if any, impact on surface water users 55 km, and more, downstream of the mine.” (emphasis added)
- Later in her reasons, the first respondent dealt with questions which the parties had nominated and said:
“Q: What impact will the reduction in flow duration curve have on the ability of existing users to extract water from:
- (a)The Isaac River; and
- (b)the near-surface groundwater from the bed of the Isaac River.
A: With respect to (a) there will be no impact on Sunland’s ability to extract surface water from the Isaac River, and there is no evidence that other users will be adversely affected. With respect to (b) Sunland will have to use additional spears if it intends to extract 250 ML/yr from the near-surface groundwater in the bed of the Isaac River, and there is no evidence of any other users of this resource.” (emphasis added)
- Sunland argues that, contrary to the finding of “no evidence”, there was evidence about the likely adverse impacts on surface water users downstream. It identifies evidence in the joint expert report from Dr Johnson, who observed:
“The data provided by Pembroke in the [Environmental Impact Statement] and in the groundwater and surface water [Joint Expert Reports] is unequivocal. Based on the proponent’s own analyses, the operation of the mine will have a measurable and significant impact on the availability to downstream landowners. The impacts of any reduction are exacerbated in this case where the Isaac River is an ephemeral stream which flows, on average, for less than 100 days per year. Any action which could reduce this flow duration to as little as 80 days or lower must be seen to potentially have an unacceptable adverse impact on downstream landowners who rely on extraction from the sand bed of the river during no surface flow periods. The EIS does not address this potential impact at all.” (emphasis added)
- Dr Johnson went on to say (in a passage with which Mr McAlister agreed) in the Joint Expert Report that:
“On the basis of the modelling undertaken on behalf of the Project and are presented in the EIS, there will be a significant reduction in the duration of flow within the Isaac River as a consequence of the construction of the pits. This has at least the potential to have adverse impacts on downstream agricultural users who rely on the Isaac River for water supply purposes.” (emphasis added)
- In Sunland’s written submissions, a schedule is attached which sets out what Sunland says is further evidence about the detriment to third party users downstream.
- The first question which must be answered is whether the first respondent was required to take that consideration into account. That, in turn, requires attention to the nature of the consideration.
- The fundamental principles which assist in answering those questions can be found in the decision of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd where he said:
“What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.”
- Of particular relevance to the circumstances of this application are the words of McHugh, Gummow and Hayne JJ in Minister for Immigration v Yusuf where, after referring to the need to consider the statutory scheme as a whole, they said:
“ This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.” (emphasis added)
- Section 269(4) does not provide a discretion. It mandates that the items in s 269(4)(a)-(m) shall be taken into account. Thus, there is no need to search for an implication.
- The case in the Land Court was conducted on the basis that water flow was relevant and that any effect on users other than Sunland and Pembroke was relevant because any such effect would come within, at least, s 269(4)(j), that is, “whether … there will be any adverse environmental impact caused by those operations and, if so, the extent thereof”.
- The complaint made by Sunland that the first respondent failed to consider a relevant matter is not made out. The first respondent directed herself to the issue of the adverse impact on surface water users downstream. That was a matter which fell within s 269(4)(j). The finding by the first respondent that there was “no evidence” of adverse effects demonstrates that consideration was given to that matter.
- Sunland identifies evidence which, it says, shows that there was evidence of adverse effects. The complaint is, in truth, that the first respondent erred in reaching that finding. That is not a ground which supports the relief sought.
- There was, in any event, material which supported the finding made. The experts had provided a joint report and then took part in a concurrent evidence session. Some of the exchanges demonstrate that the first respondent was aware of the issue and that there was evidence which supported her finding.
- On the fourth day of the hearing, during the concurrent evidence session, the first respondent asked the witnesses to turn to the impacts of the effects of the drawdown caused by the mine on the ability of existing users of surface water from the Isaac River. During evidence from Mr Rhodes and others, Mr Loos (Counsel for Pembroke) raised the question of whether the words “existing users” in question 3 on the expert witness agenda was confined only to Sunland. The first respondent asked the parties whether there might be other licensed users that the court should consider.
- Another expert, Mr McAlister, said that he had not investigated the matter in detail but that it was “fairly inevitable that other people downstream of the site will be using water from the system”. He said that water was being taken out of the system, and that must be affecting things further downstream.
- There was some uncertainty about licences held by users downstream. Mr Rhodes said that the flow threshold at which each of those licences was able to “kick in” had not been nominated because it was difficult to obtain that information. Mr Loos asked him whether other landholders who have an entitlement to take water under the water plan would be impacted by the loss of flow in the Isaac River as a result of the project. He said that it would depend completely on the flow threshold at which their licence kicks in. All the licenses on the Isaac River (that were before the Court) had a flow threshold at which they kicked in. He did not know what they were. He went on to say that there was a loss of water, but that one had to look at each individual licence threshold to work out whether there would be an impact. He said: “And, as we’ve agreed, the one that we are aware of – there is no impact. So there is quite – quite possible, with those other licenses on the list, there is no impact as well.”
- Dr Johnson gave the following evidence:
“DR JOHNSON: The impact of the loss [indistinct] the mines will reduce as we go downstream, as the catchment area becomes bigger. So, at some point downstream, the impact becomes negligible. It’s small to begin with, and, by the time we are significantly downstream, it doesn’t register at all [indistinct] clarification. Mr Loos said that I said that there were downstream users of water. I did not say that. I said there were potential users of water downstream. So I am – I’m like both Mr Rhodes and Mr McAlister. We don’t know what use of water is made downstream, except to say that it’s likely there may be some use of it. But I would come to the – I would probably support Mr Rhodes – well, not probably. I would support Mr Rhodes’ position that, as you go downstream, the impact of the loss becomes less and less important to the overall functioning of the stream.”
- The first respondent considered the issue raised by Sunland on this application and came to a conclusion about the state of the evidence. Her Honour did not fail to take into account the relevant consideration nominated by the applicant.
Third ground – the decision was unreasonable
- This ground is based upon the applicant’s thesis that the Land Court had a duty to go beyond the material presented and to make investigations on matters which were either not raised by any of the parties or about which, in the applicant’s view, the evidence was insufficient. In particular, the applicant argues that the first respondent had a duty to make enquiries beyond the evidence regarding the downstream user issues. In its written submissions, the applicant contends that the Court should have directed the experts to “meaningfully consider the issue”. In the absence of that occurring, the applicant says, the decision was unreasonable.
- As is identified above, there was evidence about the effect on downstream users. It was limited, but I do not accept that the inference drawn by the first respondent was unavailable or unsupported by the evidence before the Court.
- Sunland did not gainsay the manner in which the Land Court heard the objections. It was represented by experienced lawyers who tendered evidence in support of its objections. Although the proceedings were not adversarial and there was no onus on Sunland, it was open to it to explore the effects on downstream users. It was not confined to matters which had only a direct effect on it. It could have directed its own expert to investigate these matters. But now, it says that the first respondent failed by not doing something that nobody asked her to do at the hearing.
- The High Court has considered the principles applicable to the idea of “legal unreasonableness” in cases such as ABT v Minister for Immigration and Border Protection, Minister for Immigration and Citizenship v Li, and Minister for Immigration and Border Protection v SZVFW, They were usefully summarised by Rares, Anastassiou and Stewart JJ in Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. I gratefully adopt what they said in these paragraphs:
“ The ground of judicial review known as ‘legal reasonableness’ derives from a statutory implication. The implication that a statutory power be exercised within the bounds of (legal) reasonableness arises through a common law presumption: ABT17 at ; Li at  per French CJ,  per Hayne, Kiefel and Bell JJ and  per Gageler JJ; SZVFW at  per Gageler J,  per Nettle and Gordon JJ and  per Edelman J. Where a statutory power is exercised in a manner that is legally unreasonable, the exercise of the power is beyond the jurisdiction conferred upon the repository of that power; that is, the repository committed a jurisdictional error: SZVFW at  per Gageler J and  per Nettle and Gordon JJ. There are different ways of formulating the expression of legal reasonableness. These include that unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification (Li at ), and that reasonableness is the minimum to be expected of any reasonable repository of the power (SZVFW at  and ). It has been repeatedly emphasised that the test for unreasonableness is necessarily stringent (Li at ; SZVFW at ). In ABT17 at  Kiefel CJ, Bell, Gageler and Keane JJ said:
‘[t]he implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made [quoting Li at ] such that [j]ust as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course [Minister for Immigration & Ethnic Affairs v Teoh  HCA 20; 183 CLR 273 at 290, citing Prasad v Minister for Immigration & Ethnic Affairs  FCA 46; 6 FCR 155 at 169–170, cf Minister for Immigration & Citizenship v SZIAI  HCA 39; 83 ALJR 1123 at –].’
 Importantly for present purposes, French CJ held in Li as follows (at ):
‘The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.’” (emphasis added)
- As the High Court has said – the test for unreasonableness is necessarily stringent. The applicant has not demonstrated, because its argument is based on the rejected requirement for the Land Court to make its own investigations, that the decision was unreasonable.
- After the hearing in this matter had concluded, the High Court delivered its decision in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors. It concerned, in the broadest sense, a hearing in the Land Court with respect to applications for additional mining leases and an amendment to existing environmental authority. The history of the matter is complicated and bears no resemblance to the way the hearing in the Land Court was conducted in this matter. Had I decided that any of the grounds advanced by the applicant should have been upheld, then it might have been necessary to consider the reasons of the High Court in New Acland. As I have not so found, it is unnecessary to proceed in that way.
- The applicant has not established any of the grounds advanced by it. The application is dismissed. I will hear the parties on costs.
 Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 481 per Barwick CJ.
 BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors  QSC 107.
 Ibid at 
 Land Court of Queensland, Practice Direction 3 of 2018: Procedure for Court Managed Expert Evidence, 30 April 2018 has been repealed and replaced by Land Court of Queensland, Practice Direction 6 of 2020: Expert Evidence in the Land Court, 14 December 2020.
  QSC 107.
 (2010) 31 QLCR 156.
 (1994) 11 WAR 315.
 Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 481 per Barwick CJ.
 (1998) 20 WAR 343.
 Ibid at 364.
  1 Qd R 329.
 (1975) 132 CLR 473.
 Ibid at 480 per Barwick CJ.
 Ibid at 485.
 (2009) 111 ALD 15.
 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
  1 Qd R 347.
 See, for example, Symbolic Resources Pty Ltd v Kingham (2020) 5 QR 155; Lonergan v Stilgoe  QSC 86.
 (1986) 162 CLR 25.
 (2001) 206 CLR 323.
 (2020) 269 CLR 439.
 (2013) 249 CLR 332.
 (2018) 264 CLR 541.
 (2020) 281 FCR 578.
 (2021) 386 ALR 212.
- Published Case Name:
Sunland Cattle Co Pty Ltd v Kingham & Ors
- Shortened Case Name:
Sunland Cattle Co Pty Ltd v Kingham
 QSC 287
08 Nov 2021
- Selected for Reporting: