Beattie v McGrady [1993] QSC 226

State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (C,opyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) (), SUPREME COURT OF, QUEENSLAND CIVIL JURISDICTION CULLINANE J () No s·of 1993 NICOLL BEATTIE and THE HONOURABLE TONY McGRADY () TOWNSVILLE .. DATE 20/07/93 0 ORDER 1 REVISED C()P!ES iSSU::D Court ~~<:.;X'(ir:J ';·;;,~;·,;"·~u Date ;z:... If"? I '1.3 Plaintiff Defendant -- 1 of 15 -- ,_ 200793 HIS HONOUR: The application is dismissed. I publish my reasons. I will adjourn the matter to a date to be fixed. 10 20 30 ( J 40 u .. 50 60 ORDER 2 -- 2 of 15 -- 0 IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE Application No. 8 of 1993 RE: BEATTIE, Nicholl - Applicant -and- .. THE HONOURABLE TONY McGRADY - Respondent ' . The Applicant seeks a Statutory Order of Review pursuant to the Judicial Review Act 1991 as amended of a decision of the Respondent, the Minister for Minerals and Energy of the 10th Noverr..ber, 1992, recorru-ne;-"c.~ng to the Go·..-·e::-nor in Council tho.t Mining Lease number 10105 be granted. The application by the Applicants for the Lease is Exhibit 2 in the proceedings before me. The Applicant in these proceedings was an objector to the grant of the Lease. The material before me includes the transcript of proceedings before the Mining Warden (Exhibit 1). There were two hearings. Following the first hearing, the Mining Warden recommended to the Respondent that the Lease be granted subject to certain conditions and in respect of a reduced area. The Respondent after receiving representations on behalf of the Applicant here and others referred the matter back tc the Mining Warden under section 28 of the Mineral Resources Act 1989 as amended for the f~rther consideration by t~e Mining Warden of certain matters. The Mining Warden conducted a further hearing at which the Applicant here and other objectors were represented and made a further -- 3 of 15 -- 2 recommendation to the Respondent that the Lease be granted. The recommendations of the Mining Warden were Exhibits before me and the recommendation, the subject of this application, is Exhibit 7. The transcript before the Mining Warden is quite extensive, running into some hundreds of pages. It is clear that there 0 was a substantial canvassing of issues both in examination-in- chief and cross-examination at the hearings. The application 0 for a Statutory Order of Review was based on four grounds. These are as follows:- 1. That the breach of the rules of natural justice happened in relation to the making of the decision. 2. That the procedures that were required by law to be observed in relation to the making of the decision 0 were not observed. 3. That the making of the decision was an improper /-, LJ exercise of the power. conferred by the enactment under which it was purported to be made. 4. That there was no evidence or other material to justify the making of the decision. Before me the first of these was abandoned. On an application o~ this kind, it is not the function of the Court in a matter of this kind to substitute its own opinion or decision as to whether a lease should be granted. The Legislation leaves that to the Governor in Council to 1 -- 4 of 15 -- 3 determine and to the Respondent to make a recommendation thereon. See Elliott -v- Southwark London Borough Council (1976) 1 WLR 499. Particulars of the grounds of the claim were provided. It is however fair to say that as the matter proceeded, the case for the Applicant bore little resemblance to the particulars which have been provided. () The arg~<<ents advanced related to the provisions of the 0 Mineral Resources Act 1989 and it is desirable if I refer to relevant provisions before dealing with the arguments advanced. Part 7 of the Mineral Resource~ Act 1989 contains the procedures to be adopted upon an application for a Mining Q Lease and also contains provisions as to the matters to be considered by the Mining Warden and for the powers of the Minister upon a recommendation by the Mining Warden. Section 7.26(3) sets out the considerations which the Mining Warden is required to have regard to in making his recommendation. It provides as follows:- "(3) The warden, 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 - ( -\ aJ the provisions of this Act have been complied with; (b) the area of land applied for is mineralised or the other purposes for which the lease is sought are -- 5 of 15 -- 0 0 0 0 4 appropriate; (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; (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; (e) the term sought is appropriate; (f) th~ ~pplicant has the necessary financial and (g) technical capabilities to carry on mining operations under the proposed mining lease; the past performance of the applicant has been satisfactory; (h) the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management; (i) there will be any adverse environmental effect caused by those operations and, if so, the extent thereof; (j) the public right and interest will be prejudiced; (k) any good reason has been shown for a refusal to grant the mining lease." Section 7.13 prescribes the requirements upon the making of an appl2catio~ for a Mining Lease. Sect1on 7.lj(o)(iv) requires the Applicant to submit with the application for a Mining Lease, a document in a forrr: satisfactory to the Minister which deals with certain matters. -- 6 of 15 -- 0 0 0 5 This subsection provides for:- "(iv) a statement acceptable to the Minister specifying - (A) the financial and technical resources of the Applicant; (B) an outline of the mining programme proposed and the method of its operation or any other use proposed for the land and an indication when operations are expected to commence; (C) proposals for any infrastructure requirements that will or may be necessary to enable the mining progra~~e to proceed or the additional activities to be carried on pursuant to section 7.68 to ascertain those requirements; (D) proposals for protecting the environment, including surface water and ground water, on, and in the vicinity of, the area of the proposed lease during its term; and (E) proposals for progressive and final rehabilitation of the land." It was in relation to this provision that the first submission of the Applicant was made. In summary the Applicant's contention was that the Respondent in recommending to the Governor in Council that the lease be granted, engaged in an i~proper exercise of the power conferred by the Mineral Resources Act. It was said that this was because the Respondent had failed to take a relevant co~sideration into account in the exercise of the power namely the matters or some of the matters referred to in section 7.13(o)(iv}. -- 7 of 15 -- 6 Section 20(2)(e) of the Judicial Review Act stipulates as a ground for the making of an application the fact that the decision was an improper exercise of the power conferred by the enactment under which it was purportedly made and section 23 includes in what constitutes an improper exercise of such a power a failure to take a relevant consideration into account in the exercise of that power. 0 The Respondent provided, pursuant to the Act, a statement of reasons for h1s decision. These were filed with the 0 application. The statement of reasons consists of some seven pages. At page 5, the following passage appears: "Facts Mining Lease Application number 10105 was duly made in 0 accordance with provisions of the Mineral Resources Act 11 At pages 6 and 7, the Respondent sets out the reasons for his decision. He concludes with the following:- "Upon receiving the submissions from O'Shea & Dyer, Solicitors for the objectors, which contained allegations against the Warden and the Department of Minerals and Energy, documentation was forwarded to the Crown Solicitor for advice. The Crown Solicitor was unable to find any evidence to support the allegations. I considered the Warden's reports and recorr~endations, the transcripts of the hear±ngs, the submissions lodged and advice received from the Crown Solicitor and decided -- 8 of 15 -- to recommend the grant of Mining Lease Number 10105 to the Governor in Council." It was said on behalf of the Applicant in relation to this that the absence of any reference in the last paragraph to the matters referred to in section 7.13(o)(iv) should be taken as meaning that the Respondent gave no consideration to those matters and therefore in terms of section 20(2)(e) failed to ~ take a relevant consideration into account in the exercise of 0 0 0 his power. As I have said the application was before m~ and is Exhibit 2. The application consists of a number of documents including a standard form containing a number of parts. Section 23 of that form refers to certain documents attached to the application which are clearly intended to relate to the documents referred to in section 7.13(o)(iv) of the Mineral Resources Act. A typed page attached to the application sets out the information which the Applicants for the Lease provided in purported compliance with the provision. There is no doubt that this matter was before the Respondent and as I have said the Respondent relates in the reasons for decision that the application complied with the requirements of the Act. The requirement to provide such informatior- is contained in section 7.13(o)(iv) and is a requireme~t that the application must contain such information in a form acceptable to the Minister. The fact that the Respondent did not expressly refer ir. the -- 9 of 15 -- 8 statement of reasons to this material, cannot in my view lead to the conclusion that he failed to take it into account. A reference to a particular consideration or the non-reference to a consideration will not be determinative o~ this question. See Turner -v- Minister for Immigration and Ethnic Affairs 35 A.L.R. 388 at 392. Some of the matters which are referred to in section 7.13(iv) ~ are also referred to in section 7.26 and it is obvious that 0 0 0 some of these matters were canvassed in evidence before ~he Mining Warden. There is nothing in the material before me or in the decision of the Minister recommending the granting of the lease or in the statement of reasons which would persuade me that the Respondent has failed to take a relevant consideration of the kind which the applicant suggests into consideration. It is not, in my view, necessary for the Respondent to refer to every matter he is required to consider in either the reco~uendation that he makes to the Governor in Council or in the statement of reasons. Some of these are quite formal. I am not persuaded that this ground has been made out. The second point raised was that a statutory procedure was not observed. This argument which is re:a~ed to the first is that the material which accompanied the application in purported compliance with section 7.13(o)(iv) did not so comply i~ that it was inadequate. As I have already observed, the section provides that the information be in a form acceptable tc the I -- 10 of 15 -- 9 Respondent who is to determine whether this material is adequate. My attention was drawn to the transcript of proceedings before the Mining Warden. It was said that whereas section 7.13(o)(iv) required there to be material relating to the impact of mining operations upon ground and surface water and also required material relating to progressive and final Q rehabilitation, the Applicants for the lease acknowledged that this infcrmation was not included. The evidence in relation 0 to the first point was that there was no question of any ground or surface water being affected and in relation to the second, that the information related to final rehabilitation but not progressive. In my view whether material about these matters is required in a particular case will depend upon the circumstances of that case. It may be that in some cases it c=) is inappropriate to provide such information because such considerations do not arise in the particular mining proposal. It was for the Respondent to determine whether the material which was placed before him in compliance or purported compliance with section 7.13(iv) was acceptable. In my view the material does not establish that there had been a non- compliance of the kind provided for in section 20(2)(b) of the Judicial Review Act in the respects alleged. Furthermo::-e, I think that ever.:. if there was a :1on-::o;r;plianc€ with the requirements of Section 7.13(o)(iv), the non- compliance would not warrant the setting aside c= the decision. As I have said the provision is one which provides -- 11 of 15 -- 10 for material to be forwarded with the Application to the Minister. It was acknowledged that this information had no implications for objectors or the hearing before the Mining Warden. The Respondent had to be satisfied as to the material and apparently was so satisfied. The Respondent did not make any further request for material from the Applicants for the Lease and as I have already 0 pointed out has stated in his reasons for decision that the application was made in accordance with the requirements of 0 the Act. Associated with these points was a submission that the alleged inadequacy of the material amounted to the making of a decision when there was no evidence or other material to justify making it. (See section 20(2)(h) and 20(4)(b) of the Q Judicial Review Act.) This submission in my view is misconceived. I do not see how the alleged inadequacy of the material required by section 7.13(o)(iv) can be used as a basis for such an argument. For these provisions to apply there must be a fact which is demonstrably the basis of the decision impugned and it must be shown that the fact which was a basis for the decision did not exist. There is no material before me which would satisfy me that this was the case here. The next matter relates to the requirements cf section 7.26(d). It is said that the Mining Warden failed to give any consideration to the question whether the lana and the surface area of the land in respect to which the Mining Lease sought is of an appropriate size and shape and that since the -- 12 of 15 -- 0 0 () 0 ---------------- ------ --~ ,, Minister adopted the Mining Warden's recommendations, his decision is similarly affected by a failure to consider a. matter which the statute requires to be considered. See Sean Investments Pty. Ltd. -v- McKellar 38 A.L.R. 371. I am doubtful whether the proposition that the Minister simply adopted the Mining Warden's recommendations is correct in view of his reasons for decision and the way in which matters proceeded in this case. However, in my view there is simply no basis for this contention. The Mining Warden plainly did consider this question and as I have already mentioned recommended that for reasons set out at page 8 and pages 5-23 of Exhibit 3 a Lease be granted for a lesser area. He sets out in detail his reasons for recommending that the area of the Mining Lease be reduced and it is in respect of such a reduced area that the Respondent's recommendation has been made. It is in my view an untenable proposition to suggest that no consideration has been given to the matters referred to in section 7.26(d) either by the Mining Warden or the Respondent. The next contention relates to the provisions of section 7.26(g). The Mining Warden (see Exhibit 3) dealt with this matter in the following way:- "There is no material before me to suggest that the past performance of the Applicant has been unsatisfactory." It is said that since the Mining Warden disposed of the matter in this way and the Respondent adopted the Mining Warden's -- 13 of 15 -- 12 recommendation in this regard, no consideration was given to the matter which the statute requires consideration to be given to. The matter was conducted before the Mining Warden upon the basis of a number of issues which were raised by the objectors and which as I have said were the subject of evidence and cross-examination. 0 There was evidence before the Mining Warden --~ C:I.HU. before the 0 Respondent of the history of the Applicants and their experience in relation to mining. Some of this was undoubtedly directed towards their financial capacities. There was no evidence before the Mining Warden that I have seen or that I have been referred to or before the Respondent which suggested that there was any past performance on their Q part which was unsatisfactory. In my view there is no substance in this contention. Finally, the Applicant suggested that since the plan which was submitted by the Applicants for a surrender of part of the areas applied for, do not accurately reflect the recommendation of the Mining Warden in respect of the reduced area recommended by him and thus the recommendation of the Respondent to the Governor in Council, this in some way vitiated the decision of the Respo~jent or ought to result in the Court making some order under the Judicial Review Act qu~shing it. I do not understanj how this can be so since it is something which followed the Respondent's decision and was not relevant in any respect to the making of the decision -- 14 of 15 -- 0 0 , 3 it~elf. Presumably if there is any such error it will be corrected but it is not a basis upon which any relief can be claimed under the Judicial Review Act. In the result the application fails. I dismiss the application. -- 15 of 15 --