De Lacey & Anor v Kagara Pty Ltd [2007] QLC 137 (2007) 28 QLCR 321

LAND COURT OF QUEENSLAND CITATION: Ralph DeLacey & Anor v Kagara Pty Ltd [2007] QLC 137 PARTIES: Ralph DeLacey and Stuart V Foster (appellants) v. Kagara Pty Ltd (respondent) FILE NOS: PARTIES: FILE NOS: AML00195/2007 ENO00229/2007 AML00196/2007 ENO00230/2007 AML00197/2007 ENO00231/2007 AML00199/2007 ENO00233/2007 Ralph DeLacey (appellant) v. Kagara Pty Ltd (respondent) AML00198/2007 ENO00232/2007 AML00200/2007 ENO00234/2007 AML00201/2007 ENO00235/2007 AML00202/2007 ENO00236/2007 DIVISION: Land Court of Queensland – general division PROCEEDING: Applications for strike out DELIVERED ON: 19 December 2007 [Ex tempore] DELIVERED AT: Brisbane HEARD AT: Brisbane -- 1 of 7 -- 2 MEMBER: Mr PA Smith ORDER: Each application refused and costs reserved in each matter. CATCHWORDS: Applications for strike out of objections – mining lease applications – costs Minerals Resources Act 1989 Environmental Protection Act 1994 APPEARANCES: Mr R DeLacey, for the appellants Mr J Briggs, solicitor for the respondent Mr SA Blanchard, solicitor, for the Environmental Protection Agency Background: [1] I’ll proceed to my decision in this matter and to save everybody I will just be handing down the one decision for each of the applications for a stay using the shorthand in each of the eight mining lease matters. I will not try to make it 24 decisions, that could drive everybody a trifle insane. [2] The Court has before it eight applications for mining leases brought by Mr DeLacey and Mr Foster seeking mining leases in North Queensland. With respect to each mining lease application there have been objections lodged by Kagara Pty Ltd. The objections lodged by Kagara Pty Ltd in each matter are extensive and are objections under the Mineral Resources Act 1989 and under the Environmental Protection Act 1994. As a result of the environmental objections, the EPA is a statutory party to these proceedings. [3] When the matter came on before me for directions on 12 November 2007 it was clear that a number of the parties took issue with the fact that they had been brought into these proceedings. Mr DeLacey was of the opinion that the objections were of no effect and should be struck out and Kagara Pty Ltd was of the view that the mining lease applications had not complied with various legislative provisions and should therefore not be allowed to proceed. [4] I accordingly ordered on 12 November 2007 that any party seeking any applications under the various Acts were to file and serve same by 10 December 2007. In the event, applications were made by both the mining lease applicant, the objector and the statutory -- 2 of 7 -- 3 party. The applications were heard before me in Brisbane on 18 December 2007. I will deal with each of the applications separately. [5] Mr DeLacey’s material on behalf of the mining lease applicants is contained in a letter of 3 December 2007 to the Land Court and contains the following: “We wish to make application to the Court to have this matter struck out on the grounds that the objection by Kagara Pty Ltd is spurious and vindictive and is intended to mislead and waste the Court’s time.” The mining lease applicants also seek an award for costs against the objector. The letter from the applicants contained supporting information. [6] An applications was also brought by the objector on 7 December 2007. The orders sought are extensive but are perhaps summarised by the first order sought which is that the applications for mining lease are of no effect whatsoever and have never been of any effect whatsoever. In the alternative, orders are sought that the mining lease applications are all rejected or that there be a recommendation made to the relevant Ministers that the applications be rejected. There is also an application for costs. [7] Finally, an application in a proceeding was also brought by the statutory party. This application was brought on 10 December 2007 and seeks the following order: “that the objections made by the respondent under the Environmental Protection Act 1994 to the applications for draft environmental authorities for the applications and conditions included in the draft environmental authorities be struck out.” [8] In the limited time I have had to research the various applications I have been unable to find any authorities where a tri party situation such as I'm faced with here has brought before a Court an application by each party each to have the opposing case in effect struck out. I am therefore dealing with quite unique circumstances. I also note that in seeking to have the matters struck out the parties are, in effect, seeking some prejudgment in the matters. [9] The matter is of course complicated by the fact that we are dealing with applications for mining leases under the Mineral Resources Act with environmental authorities under the Environmental Protection Act so we are not within the normal scope of an action before a Court commenced by writ with pleadings by way of defence etc. I note that the UCPR contains provisions for summary judgment set out at Rules 291, 292 and 293 and have -- 3 of 7 -- 4 taken cognisance of those in considering each of the applications. I have also found assistance in the text “Australian Civil Procedures” by Bernard Cairns Fifth Edition which contains at p.403 the following under “Exercise of Discretion to Strike out”. (I should add for completeness that I am referring to this in particular as Mr DeLacey is an unrepresented litigant in these proceedings and it may be of assistance for him to understand the reasoning of the Court.) I quote as follows: “Striking out applications is circumscribed because it is often difficult to separate the facts and the law. In terminating an action summarily, the Court is called on to act before there is any presentation of the facts. Overall, it is submitted that the cautious approach is the fairest. Naturally it does mean that a party against whom a weak claim or defence is made is forced into preparing for trial. The balance of convenience must be weighed. If the claim or defence could conceivably be successful it is not struck out. A pleading is not struck out if on its face it raises an arguable point of law, Dyson v. Attorney-General [1911) 1 KB 410. Nor will the Court enter into a complicated examination of matters which should be submitted at the trial, Wyatt v. Palmer [1899] 2 QB 106.” There are other extracts from Cairns at pp.400, 401 and 402 which also give assistance in this matter. Given that very brief outline of the principles to be considered I now turn to the respective merits of each of the applications. I will deal first with Mr DeLacey's application. [10] There is no doubt in my mind that Mr DeLacey clearly believes that the objector is acting against him in a spiteful, vindictive manner and that there are no real objections set out in the Notice of Objection. However, on I believe any fair reading of the Notice of Objection, there are clearly matters set out that the objector objects to, particularly with respect to the application under the Mineral Resources Act. The Mineral Resources Act clearly sets out what is to occur under an action when objections are made and that is, in short, that the objections go to a hearing before the Land Court. If it is found at the end of the day that the objection has been one that is spurious or vindictive as alleged by Mr DeLacey then that is a matter that can be addressed by an award for costs. However, absent any discernible facts for the Court at this stage I am in no position and I consider it inappropriate to award to grant the application that Mr DeLacey seeks. I now turn to the application by the objectors. [11] Before dealing with the substance of those applications I should formally commend the solicitors for the objector in the manner in which they have provided the Court and each of the parties with three bundles of material very intelligently put together and cross referenced. They have been of immeasurable benefit to the Court and I express my personal thanks to the solicitors for discharging their obligation to the Court so well in this regard. In saying that of course Mr DeLacey that doesn't influence in any way my -- 4 of 7 -- 5 decision; it's simply acknowledging the excellent provision of services to the Court that has been done by Blake Dawson Waldron and I think it's appropriate in the circumstances that I acknowledge that. [12] I now turn to the substance of the applications. I have carefully considered the points raised by Mr Briggs in his submissions and believe there are merits in at least a number of the points that he raises. I find it particularly so with respect to those mining lease applications that are in close proximity to national parks so that on the basis of the current legislative provisions and the current existence of the national parks there would, in effect, be no mining operations that could be carried out even were the mining leases granted. However, as the statutory party has pointed out, it is not necessarily the case that just because regulations currently preclude a miner from mining, that facts may not change in the future that would allow mining to be undertaken. In that regard counsel has specifically referred to the fact that the relevant national parks, although in existence now, could be degazetted at some time in the future. I find this scenario extremely unlikely as Mr Briggs pointed out but nonetheless it is a consideration that has to be taken into account and as a consideration, a factual consideration that has to be taken into account. It is one that I believe would be more appropriately dealt with at a normal hearing and recommendation process. [13] For reasons which will become obvious, particularly when I deal with the statutory party's applications, I do not propose to go through each of the other arguments advanced by Mr Briggs in any great depth at this stage but will instead make general observations as to the applicability of making a decision on those points now or at a later stage. [14] As Mr Briggs conceded on a number of occasions there are substantial matters of public policy and statutory interpretation of the Mineral Resources Act which have significant flow-on effects to mining lease applicants throughout the State and to the very workings of the legislation. I think in particular in this regard of the element of the advertising of the mining lease applications being in a different substantive form from that set out in the certificates of application and also from that set out in the mining lease applications themselves. The fact that we are dealing with eight different mining leases with different circumstances in each, some of which have consistency with those forms of the applications, some of which do not, again raise issues that are a mixture of fact and law in my view and will be necessarily a part of argument by each side as to whether or not -- 5 of 7 -- 6 an appropriate recommendation should be made either that the mining leases are fatally flawed by the omission of certain matter or that the actions of a mining registrar in issuing a certificate of application in different terms to a mining lease application have an impact or effect. [15] To deal with the second aspect of what I have just said, that is the actions of a mining registrar, again will need the consideration of factual material, even the facts as to the advertising of the matter and what was put in the ad. There may for instance have been an error made by the newspaper and not by the mining lease applicant. I simply do not know on the current state of the material so again I find that there is merit in arguments raised by Mr Briggs. However, I also find that there are arguable counter arguments to points that he has raised and there are also issues of both discretion and factual determination required for at least a considerable number of the points that he has raised. For those reasons, and given the serious nature of a strike out application at this stage or a recommendation being made without a hearing against the normal processes under the Mineral Resources Act granting the objector’s application is, I believe, not advisable and not a course that the Court should follow. I now turn to the statutory party. [16] Of all the applications in this matter, this one perhaps has caused me the most difficulty in that the statutory party has raised a number of technical elements to their defence in the way in which the objections have been drafted by relying upon a section to the Act instead of dealing with the more usual sense of substantive arguments as to what is being objected about. I do see considerable merit in elements of the statutory party's argument. However, for many of the same reasons that I have indicated with respect to the objectors, I also take into account that the complaint of the objector if read broadly does raise proper issues of concern and questioning under the Environmental Protection Act. I do not know at this stage whether or not it is appropriate to apply a broad reading or a narrow reading to the objections as they are framed and I do not believe it would be fair to the objector to take a narrow reading at this stage when, on the state of the objections, a broad reading is possible. For that reason I also decline the application of the statutory party. [17] The end effect is that I decline to make any of the orders sought by any of the parties in these matters, including for completeness Mr Briggs, the alternate orders that are sought by the objector. However, I wish to make another aspect of my reasoning in this matter -- 6 of 7 -- 7 absolutely clear to all of the parties. I have considered these matters in some detail and am concerned enough by issues raised by each of the parties to make the following observation: if, at the end of the day it is established that parties have come before the Land Court in circumstances where they either should not have been bringing applications for mining leases or should not have been bringing objections and have been doing so for means or purposes other than those as set out under the legislation, then I will have no hesitation to revisiting this original application for the purposes of making awards for costs both of these applications and costs for the proceedings as a whole. I would also indicate that I would receive submissions by a successful party if those circumstances, as I've outlined, were proven to be the case, for indemnity costs. Of course, as far as the statutory party is concerned, I acknowledge that the statutory party has not chosen to come before the Court but the statutory party is here because the statute requires their attendance, so with respect to the statutory party my statement is to be read as if it is established that the statutory party should not have been here because there was clearly never any proper objection made against it. That is a matter that I would also consider relevant for costs because I believe that in the circumstances of each of these applications and the objections each party has put the other on clear notice as to the position that each one of them takes with respect to the merits of their respective cases and therefore each will be proceeding, not on an assumption that there would be no award of costs in this matter, but on the assumption that should any party's actions be seen as less than meritorious then an award of costs is likely. I should also make it abundantly clear that I make absolutely no finding or any inference with respect to any party at this stage in that regard. There have simply been allegations made by each of the parties and I have no facts before me to back up any of those allegations. No doubt the parties are in a much better position to understand the truthfulness or otherwise of those allegations than I am. Order Each application refused and costs reserved in each matter. P A SMITH MEMBER OF THE LAND COURT -- 7 of 7 --