Symbolic Resources Pty Ltd v Kingham & Ors

This case considered whether a recommendation by the Land Court to refuse the grant of a mining lease was affected by jurisdictional error. Notably, Wilson J concluded that although an objection had not been served on the applicant within time, the Land Court still had jurisdiction in relation to it. Her Honour did, however, find error in the Land Court having considered an issue that had not been properly raised in a lodged objection. Accordingly, the recommendation was set aside and the matter referred back to the Land Court to be decided according to law.

Wilson J

26 June 2020

Background

Symbolic Resources (the applicant) sought judicial review of a decision of the Land Court which recommend refusal of its application for a mining lease. [1]–[2].

The applicant raised four grounds of appeal, the first two of which were noteworthy (and are discussed in greater detail below): (1) that one of the respondents’ objections to the mining lease was not “properly raised” and so the Land Court had no jurisdiction in relation to it; and (2) that the Land Court considered matters not properly raised in objections, beyond its jurisdiction. [12]. In the result, only the second ground succeeded. [244].

Ground (1) – whether Mr Gullo’s objection was “properly made”

The applicant contended that the Land Court had erred in considering an objection made by Mr Gullo, as it was allegedly not “properly made”. Applying s 260(4) Mineral Resources Act 1989 (“MRA”) any objection to the application for the mining lease had to be served on the applicant by 13 December 2017. [29]. Mr Gullo had sent his objection to the applicant by registered post on 13 December 2017, but it was not received by the applicant until 16 December 2017. [44].

The Land Court found that the Gullo objection was not served in time. [31]. Wilson J agreed. Her Honour noted that s 39A(1)(b) Acts Interpretation Act 1954 provides that “service is taken to have been effected at the time at which it would be delivered in the ordinary course of post, unless the contrary is proved”. [44]. In this case there was an absence of evidence as to when a registered post letter would ordinarily be delivered in the ordinary course of post. [47]–[49]. But in her Honour’s view, it was clear that service had not occurred by the date required, and hence “the Gullo objection was not served within the objection period”. [50]–[51].

Nonetheless, this did not have the result – as the applicant had contended – that the Land Court was deprived of jurisdiction in relation to the Gullo objection. [57]. The Land Court has jurisdiction in relation to a “properly made objection” (s 265 MRA), which is defined as “an objection lodged under section 260 that has not been withdrawn” (emphasis added). [52]. Section 260(1) allows an objection to be lodged with the Chief Executive of the Department of Environment and Science (“DES”). Subsection (4) goes on to provide that the objector “shall serve” the objection on the applicant. [58]. However, as her Honour noted s 265(1) does not state that a “properly made objection means an objection lodged and served ”. Accordingly, on its proper construction the term “‘properly made objection’ only refers to an objection lodged with the chief executive”. Thus, her Honour concluded that “whether service has been satisfied has no bearing on whether an objection is ‘properly made’ under s 265(1)”. [74].

Ground 1 was not established.

Ground (2) – whether the Land Court considered matters beyond its jurisdiction

The applicant contended that the Land Court had exceeded its jurisdiction by considering issues not included in the lodged objections. [87]. It relied on s 268(3) of the MRA, which provides that the Land Court shall not entertain an objection to an application (or any evidence in relation to it) if is not contained in a duly lodged application. [88].

Notably, the Land Court had considered an issue relating to whether the DES had been misled by the applicant in its application for an Environmental Authority. [109]. The fourth respondent contended that that issue had been properly raised in an objection, and that the MRA “does not require objectors to include particulars that go further than identifying the ground of the objection, which can be done on a fairly basic level”. [118]. However, Wilson J rejected that submission, noting that s 260(3) requires that an objection state “the grounds of the objection and the facts and circumstances relied on by the objector in support of those grounds”. [126]–[127]. Her Honour considered that the objections filed here “cannot anchor any of the submissions, evidence and findings of the Land Court about the applicant misleading the [DES]”. [130].

Accordingly, the Land Court had exceeded its jurisdiction. [132]. Her Honour ordered that the Land Court’s recommendation be set aside and the matter referred back to the Land Court to be decided according to law. [245].

W Isdale