On Friday 26 June 2020, the Supreme Court in Symbolic Resources Pty Ltd v Kingham & Ors [2020] QSC 193 set aside the Land Court decision Symbolic Resources Pty Ltd v Burston & Anor; Symbolic Resources Pty Ltd v Gullo [2019] QLC 39 (MRA020-18; MRA103-18) FY Kingham, to recommend against the grant of a mining lease, on the basis of jurisdictional error and referred the matter back to the Land Court to be decided according to law.
Ground of review
There were four grounds of judicial review:
The Land Court decision involved errors of law in relation to the construction and application of section 265(11) of the Mineral Resources Act 1989 (Qld) (the MRA), in that the third respondent’s objection was not a ‘properly made objection’;
The Land Court decision involved errors of law, in contravention of section 268(3) of the MRA, in relation to the scope of the objections;
The Land Court decision involved errors of law in relation to the construction and application of sections 269(1) and (4) of the MRA; and
The Land Court decision was made in breach of the rules of procedural fairness.
Grounds 1, 3 and 4 were unsuccessful.
Ground 2, which considered the scope of the Land Courts powers to hear objections and receive evidence not otherwise dealt with in an objection, was upheld.
This article will briefly consider grounds 1 and 2.
Ground 1
There were a considerable number of issues ventilated which do not warrant an in-depth analysis. However, in the context of Ground 1, the construction of s.265(11) and s.260 of the MRA were considered in some detail and are worth briefly discussing.
As a starting point, it is common ground that the Land Court acquires jurisdiction over an application for a mining lease where a “properly made objection” is made in respect of an application.[1]
Ground 1 was primarily concerned with, whether or not service under s.260 of the MRA is a mandatory requirement for an objection to be a “properly made objection” under section 265(11) of the MRA.
The parties engaged in an analysis of various legislation to consider:
when service is taken to have occurred; and
whether service is a mandatory requirement.[2]
When is service effected?
The Land Court found that the Third Respondent’s objection (the Gullo objection) was not served within time.[3] The Applicant contended that this was correct. The third and fourth respondents contended that the objection had in fact been served within time because it had been sent by registered post on or before the last objection day.
Service in the context of the MRA is not as clear-cut as one might anticipate, so the examination of this issue by the Court is both useful and of practical importance to the industry.
Ultimately the Court considered, inter alia, the words “sent” and “delivered” and held that:
[47] Mr Gullo was entitled to use the mode of registered post to serve his objection, but his objection was not regarded as “sent” at the point of his posting or sending of the objection.
[48] Rather, his objection was regarded as “sent” at the point the objection was delivered in the ordinary course of post, unless the contrary was proved…
The Court held that the Gullo Objection was not served in time as required by s.260(4) of the MRA.
Whether service is mandatory for an objection to be a “properly made objection”
The Applicant contended that because the Gullo objection had not been served in accordance with s.260(4) of the MRA, then it could never be regarded as being a “properly made objection” and the Land Court did not have jurisdiction to hear the matter. This required a consideration of s.260 and s.265(11) of the MRA which provided that a properly made objection is “an objection lodged under section 260 that has not been withdrawn”.
The applicant relied inter alia on Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 (“Project Blue Sky”) and the Acts Interpretation Act 1954 (Qld) ss. 14A and 14B, to urge the Court to prefer a broad reading of s.265(11) and s.260 of the MRA thus requiring compliance with the whole of s.260 and not just s.260(1) of the MRA.
The Court stated:
[75] I note that section 265(11) does not state that a “properly made objection means an objection lodged and served under section 260”. In my view, had the legislature intended to make service a mandatory requirement then section 265(11) would have so stated.
[76] Importantly, section 265(11) singles out and specifically uses only the word “lodged”. The use of the term “lodged” links section 265(11) to section 260(1), which uses the term “lodge with the chief executive”.
[77] Further, section 260(4) of the MRA uses the word “lodged” in a way that clarifies that service takes place subsequent to any objection having already been lodged. It states:
(4) Each objector to an application for the grant of a mining lease shall serve upon the applicant on or before the last date that the objector may lodge an objection to that application a copy of the objection lodged by the objector.
[78] In my view, the term “properly made objection” only refers to an objection lodged with the chief executive. Once this has occurred, then section 265 of the MRA places certain obligations upon the chief executive.
[79] If service was a component of a properly made objection, then the chief executive would be required to satisfy itself that the objection had been served upon the applicant for the mining lease, prior to referring the objection to the Land Court.
(footnotes omitted)
Ultimately, the Court held:
[86] Whether service has been satisfactory effected has no bearing on whether an objection is “properly made” under section 265(11).
[87] The third respondent’s objection was a properly made objection pursuant to sections 265 of the MRA.
Ground 2
Ground 2 concerned whether or not the court could, and indeed did, receive evidence and consider issues on matters not otherwise included in the objections.
It is tolerably clear that the Land Court can not receive evidence and consider issues on matters not otherwise included in the objections.[4] Section 268(3) qualifies the limits of s.268(2) of the MRA such that the Land Court hearing is not at large.[5] In this respect, her honour held that:
[94] The terms of section 268(3) of the MRA are clear. As set out in the Quandamooka case and Kokstad Mining, the Land Court is precluded from entertaining an objection to an application or any ground thereof, or any evidence in relation to a ground, where there has not been a duly lodged objection in respect of a matter which an objector subsequently wishes to agitate.[6]
The Court then considered whether or not the Land Court had received evidence and considered issues on matters not otherwise included in the objections. In particular, the Courts attention was focussed on one issue, “[99] The issue to be determined in this case is whether the Gullo objection contained any material regarding the Department of Environment and Science being misled.”
The Applicant submitted that discussions of the issue in question in the Land Court decision was “an entirely speculative enquiry into whether an application not before the court had misled an agency who wasn’t represented in the proceedings”.[7]
Having considered s.269(4) of the MRA and the scope of the Land Courts power to consider any adverse environmental impacts caused by the operations, the Court was ultimately satisfied that the issue had not been ventilated in the objections and that evidence on the issue had been received which was outside the Land Courts jurisdiction.[8]
Her Honour Justice Wilson held that Ground 2 had been satisfied and stated:
“… [137] The Land Court exceeded its jurisdiction by entertaining evidence or any submissions based on the applicant allegedly misleading the Department of Environment and Science. The Land Court was precluded from doing so pursuant to section 268(3) of the MRA.
[138] The generality of paragraph 100 of the Land Court decision, where the Land Court stated that on the evidence it cannot assume that the Department of Environment and Science has conditioned the Mining Lease Application in a way that properly protects the environmental value at risk from the activity, must encompass the evidence of the applicant misleading the Department of Environment and Science. Accordingly, this issue clouds or infects the ultimate conclusions made by the Land Court…”
Whilst it is yet to be seen whether any of the parties will appeal the decision, it provides some much needed guidance and clarity on a number of practical issues related to objections hearings.
This article should not be taken as legal advice. If you have a matter that deals with the subject matter of this article then you should seek independent legal advice regarding the particular circumstances of your case.
Liability limited by a Scheme approved under professional standards legislation.
[1] At [53] of Symbolic Resources Pty Ltd v Kingham & Ors [2020] QSC 193 and s.265 of the MRA [2] At [28] to [87] [3] Symbolic Resources Pty Ltd v Burston & Anor [2019] QLC 39 at [3]. [4] S.268(3) of the MRA [5] At [90]; ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2002] 1 Qd R 347 at 360 [60] per Mullins J, with whom Davies JA and Mackenzie J agreed. [6] ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2002] 1 Qd R 347; Lee v Kokstad Mining Pty Ltd [2008] 1 Qd R 65 [7] At [110] [8] At [124] – [134]
