Brown v Armstrong [2002] QLRT 39

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Gregory John Brown v Dean Lindsay Armstrong and Lisa Maree Armstrong [2002] QLRT 39 PARTY/IES: In the Matter of Application for Mining Lease No. 70297 by Gregory John Brown (Applicant) - and - Dean Lindsay Armstrong and Lisa Maree Armstrong (Objectors) FILE NO/S: AML00030/2002 PROCEEDING: Application by objectors for stay DELIVERED ON: 2 July 2002 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Smith DP ORDER/S: (i) I decline to grant the orders sought by the Objectors in their Application in a Proceeding. (at [16]) (ii) I adjourn the Application in a Proceeding to chambers. (at [16]) (iii) I reserve the question of costs of the Application in a Proceeding. (at [16]) (iv) I grant the Objectors liberty to apply on the giving of five days notice to bring the Application in a Proceeding before me again once the applicant has provided all his evidence with respect to this matter in affidavit form in accordance with the orders that follow. (at [16]) (v) I order the applicant to provide his evidence in affidavit or statement form to be served on the Objectors through their agent Mr Houen and filed in the Tribunal by 4pm Tuesday 23 July 2002. (at [16]) (vi) I order the Objectors through their agent Mr Houen to file their statements and affidavits and to serve same on Mr Brown relating to their grounds of objection by 4pm Tuesday 6 August 2002. (at [16]) -- 1 of 6 -- (vii) I order Mr Brown to file any additional evidence by way of affidavit or statement and to serve same on Mr Houen for the landholders by 4pm Tuesday 13 August 2002. (at [16]) (viii) I order the Objectors through Mr Houen to file and serve on Mr Brown any affidavit or statement evidence in reply by 4pm Tuesday 20 August 2002. (at [16]) (ix) I adjourn this application to chambers for the purpose of setting down a hearing date approximately three weeks after the 20 August 2002 in Emerald at a date when the Emerald court house is available for one days hearing, such date to be set after consultation as to availability between my case office, Mr Houen and Mr Brown. (at [16]) CATCHWORDS: MINING – MINING LEASE – APPLICATION FOR STAY – ADJOURNMENT – DISCRETION – EVIDENCE Land and Resources Tribunal Act 1999, s. 49 COUNSEL: N/A SOLICITOR/S: N/A AGENT/S: Mr Brown represented himself Mr G. T. Houen, for the objectors [1] SMITH DP: (ex tempore) This is an Application in a Proceeding brought by the Objectors, Mr & Mrs Armstrong, who I will hereafter refer to as the Objectors for ease of reference. By the Application in a Proceeding the Objectors seek the following orders: “1. That the hearing of the application for Mining Lease No. 70297, being Tribunal matter AML00030/2002, be adjourned. 2. The adjournment to be pending judgement in the Court of Appeal in proceedings CA2659/2002, APTP00001/2002, being an appeal by the Respondent in this matter, Mr and Mrs Armstrong, from the decision and order of President Koppenol in proceedings ATP00001/2002.” [2] Both parties have provided me with written submissions in this matter to enable me to determine the matter on the papers without need for oral submissions by them. -- 2 of 6 -- Both parties are to be commended for the manner in which they have provided their written submissions given that neither of them have formal legal training. [3] One of the core aspects of the submissions provided by both parties relates to s. 49 of Land and Resources Tribunal Act 1999. In particular, subsection 1, which reads as follows: “49. (1) When conducting a proceeding, the tribunal must - (a) observe natural justice; and (b) act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of issues before it.” [4] Mr Houen for the Objectors submits that, whilst conceding the obligation on the Tribunal to act quickly, a proper and fair consideration of the issues can only proceed in this matter once the Court of Appeal decision has been handed down. [5] Mr Brown by his submissions on the other hand submits that his matter is different to the matter referred to by Mr Houen. In his submissions he calls upon the Tribunal to act in accordance with the first part of s. 49, ss. 1(b), to act quickly in the matter. Mr Brown also cites in his submissions aspects of various delays currently confronting the mining industry. I note that most of the material provided by Mr Brown in that regard relates to native title delays which are not directly relevant to this matter. However, the point is relevant as regards the general delays that are occurring in the mining industry as a whole and in the Emerald district in particular. It is also a relevant issue that landholders in the Emerald district have indicated the large number of claims for mining activity being made over their land as they hold tenures where native title has been extinguished as proceedings are not progressing on those tenures in the Emerald district where native title has not been extinguished. Thus though not directly relevant in this matter the submissions made by Mr Brown regarding delay by native title proceedings do have some relevance. [6] In his reply submissions to the written submissions by Mr Brown, Mr Houen had this to say in the second part of paragraph 1: “Mr Brown’s lease application involves fundamentally important issues of interpretation of provisions contained in the Mineral Resources Act (“the Act”), and the scheme of the Act as to eligibility of an applicant for grant of a mining lease. These issues arise out of previous Tribunal decisions and Mr. and Mrs. Armstrong regard them so seriously that they have sought adjudication by the Court of Appeal. It is appropriate that the Tribunal should await the outcome of the Court of Appeal proceedings so that fair and proper consideration may be given those issues.” -- 3 of 6 -- [7] Mr Houen then goes on in part 2 of his submissions and in particular I read from the second paragraph on page 3: “Mr and Mrs Armstrong’s appeal against the President’s decision disputes the basis of that finding and that the Act allows grant of a mining lease for where the dominant or sole purpose of the application is exploration to search for and discover minerals. The appeal therefore relates directly to the substance of Mr. Brown’s lease application, despite his efforts to portray it as being for mining, not exploration.” [8] This I believe is at the heart of this application. Mr Houen by his submissions refers to the dominant or sole purpose of the application being for exploration to search for and discover minerals. In the application for Mining Lease No. 70297 the following appears under the section - under that part of the application dealing with the minerals and or purpose which the mining lease is sought. The applicant has written the following, and I quote: “Sapphire, tailings dam, zircon, stockpile/overburden, corrundum, water supply, treatment plant, associated infrastructure.” [9] I note that nowhere in the purposes set out within the body of the mining lease application does the applicant refer to exploration. However, support for Mr Houen’s submissions does come in part from Attachment 1 to the mining lease application which says the following: “The geology is described as a mixture of late Tertiary to early Quaternary sediments. The area has been mapped as “undifferentiated wash” and “black soil wash” with the southern boundary of potential sapphire bearing deposits from the north of the mining lease being undefined. From an assessment of the area, it seems that the patches of sapphire bearing wash are interspersed by areas of barren ground. It is envisaged that only a small percentage of the mining lease will actually be mined though pockets of wash are likely to occur over the whole area. Exploration will take place ahead of mining defining the boundaries of each subsequent mining block.” [10] The key from Mr Houen’s perspective is the last sentence from the above paragraph. [11] Whilst the Application in a Proceeding in this matter calls for the adjournment of the matter, what in effect Mr Houen is seeking on behalf of the Objectors is a stay of this proceeding pending the outcome of the Court of Appeal decision. [12] Applications for lengthy adjournments as would be the case in this matter or stays of proceedings are indeed only granted by courts when good reasons are shown for doing same. I note in particular that the general rule of practice with respect to stays is that stays do not operate after an appeal is lodged. The judgment under appeal has force unless or until any application for a stay is both brought and granted. -- 4 of 6 -- [13] Whilst I see merit in Mr Houen’s application in this matter, I am not satisfied that the mining lease application can be said to be for the dominant or sole purpose of exploration to search for and discover minerals. It contains much more than that. It may however prove to be the case once the evidence is collated in this matter that the issues become much more clearer and at that point it may be that Mr Houen’s case has additional merit, in putting it on all fours with the matter currently under appeal. However, I find this is not yet the case. [14] It does seem to me that key issues for this application from this quick view I have had of the material (and I must stress to the parties that I have reached no conclusions whatsoever as to the merits of the application at this time nor all of the areas that must be looked at in determining the objections or indeed the other requirements on the applicant to satisfy me) are issues as to mineralisation of the land concerned and proper utilisation of all of the land for the application including, for instance, location of treatment plant, associated infrastructure, etc., which may be intended to be on land which the applicant says is not mineralised. This will require determination of issues of fact. Those issues of fact will be crucial to the final determination of this matter and indeed are crucial to the determination of this application in a proceeding. [15] In light of my findings and the statements I have made to date I do not intend, Mr Houen, to dismiss your application but to adjourn that application to chambers and allow you to bring that application on again on the giving of five days notice after Mr Brown has provided his evidence in statement form, which I am going to make orders for him to do in a short period of time. [16] For the reasons as detailed, I make the following orders: (i) I decline to grant the orders sought by the Objectors in their Application in a Proceeding. (ii) I adjourn the Application in a Proceeding to chambers. (iii) I reserve the question of costs of the Application in a Proceeding. (iv) I grant the Objectors liberty to apply on the giving of five days notice to bring the Application in a Proceeding before me again once the applicant has provided all his evidence with respect to this matter in affidavit form in accordance with the orders that follow. -- 5 of 6 -- (v) I order the applicant to provide his evidence in affidavit or statement form to be served on the Objectors through their agent Mr Houen and filed in the Tribunal by 4pm Tuesday 23 July 2002. (vi) I order the Objectors through their agent Mr Houen to file their statements and affidavits and to serve same on Mr Brown relating to their grounds of objection by 4pm Tuesday 6 August 2002. (vii) I order Mr Brown to file any additional evidence by way of affidavit or statement and to serve same on Mr Houen for the landholders by 4pm Tuesday 13 August 2002. (viii) I order the Objectors through Mr Houen to file and serve on Mr Brown any affidavit or statement evidence in reply by 4pm Tuesday 20 August 2002. (ix) I adjourn this application to chambers for the purpose of setting down a hearing date approximately three weeks after the 20 August 2002 in Emerald at a date when the Emerald court house is available for one days hearing, such date to be set after consultation as to availability between my case office, Mr Houen and Mr Brown. -- 6 of 6 --