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Proctor : October 2017
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38 PROCTOR | October 2017 right of indemnity in respect of, the joint venture property on the part of Queensland Nickel – where this ground of appeal does not mount a successful challenge to the exercise of the discretion by the primary judge – where that is not to say that a differently framed statement of claim which eschewed such negations might not warrant a grant of leave to proceed. Appeal dismissed with costs. Burragubba & Ors v Minister for Natural Resources and Mines & Anor [2017] QCA 179, 22 August 2017 General Civil Appeal – where the appellants were registered native title claimants under the Native Title Act 1993 (Cth) (the NTA) – where the National Native Title Tribunal (NNTT) had determined that the grant of mining leases over land the subject of the native title claim could be done as a ‘future act’ under the NTA – where the appellants sought judicial review of the NNTT determination – where the first respondent decided to grant three mining leases to the second respondent under the Mineral Resources Act 1989 (Qld) (the MRA) – where, in making the decision, the first respondent concluded that native title proceedings had been ‘resolved’, without consulting the appellants, although the judicial review proceedings were reserved pending judgment – where the MRA sets up a scheme for objections to the grant of a mining lease to be made within a limited time and for those objections to be considered by the Land Court – where the appellants had not lodged an objection under the MRA scheme – where the primary judge concluded that the MRA provided a comprehensive code for affording procedural fairness and had excluded the common law right to procedural fairness – whether the MRA excluded the common law right to procedural fairness – whether the first respondent was referring to the native title claim being ‘resolved’ in the sense of being extinguished or in the sense that the grant of a mining lease could be done as a ‘future act’ under the NTA – whether the first respondent was obliged to consult with the appellants before concluding that the grant of a mining lease could be done as a ‘future act’ under the NTA – where an essential element of the appellants’ argument is that the Minister should have heard from them, because he was considering “new information”, being something “not arising from the Land Court process” – where, however, the question cannot be decided at that level of abstraction – where it is necessary to have an understanding of the content and ultimate relevance of that information to assess whether, in fairness to the appellants, the Minster should have asked them about it – where the content of the information within the departmental documents is unknown and was not proved to have been adverse to the appellants’ interest or in any way influential – where the documents may have advised the Minister that native title had been extinguished, that it had not been extinguished, or that no conclusion could be made one way or the other – where throughout the hearing before the primary judge, it seems that nothing was said about attachments 9 and 10 until oral submissions, in reply, by the appellants’ counsel – where it is apparent then why the content of attachments 9 and 10 was not proved at the hearing before the primary judge – where the complaint which was then made by the appellants, although not in this court, was not that the Minister had denied them natural justice by considering those documents; rather, it was that he had decided to grant the leases, notwithstanding the judgment being reserved in the ADJR proceeding, without giving the appellants an opportunity to say whether he should do so – where to return to the appellants’ present argument, its immediate difficulty is that the content of the ‘new’ material, attachments 9 and 10, is unknown – where on the balance of probabilities, it cannot be inferred that it was adverse to the appellants – where the essential premise of the appellants’ argument is not established and consequently it cannot be accepted – where the appellants failed to prove that there were facts or circumstances which required the Minister, acting fairly, to consult them before making his decision. Appeal dismissed. Costs. Bond v Chief Executive, Department of Environment and Heritage Protection [2017] QCA 180, 22 August 2017 Application for Leave Sustainable Planning Act – where Mr Bond was the chief executive officer and managing director of Linc Energy Limited (Linc Energy) – where Linc Energy carried out an underground coal gasification plant on land at Chinchilla, which caused the land to suffer environmental harm and contamination – where Linc Energy therefore had obligations to rehabilitate or restore the land – where the respondent issued an environmental protection order (EPO) to the applicant – where the applicant applied to the Planning and Environment Court to have the EPO declared unlawful and was unsuccessful – where the applicant seeks leave to appeal against that decision on the grounds that the primary judge erred in law when dismissing the application – where the case involves important questions of general application as to the proper interpretation of the Environmental Protection Act 1994 (Qld) – where leave to appeal is granted – where an application for review of the decision to grant the EPO was made within the nominated 10-day period – where the application for review stated that the decision was unreasonable and should have allowed for a period longer than 10 days within which to apply for review – where the application for review relied on there being special circumstances – where s521 allows the administrating authority to extend the 10- day period in special circumstances – where the applicant alleges that an assessment of whether there are special circumstances must occur before an EPO is issued and failure to make such an assessment led to a breach of procedural fairness and makes the EPO invalid – where the Environmental Protection Act requires standard criteria to be considered before an EPO is issued – where the administering authority is required to balance the standard criteria and the affected party’s interests – where the applicant’s case relies on the brevity of s521 and depends on the proper statutory construction of the Environmental Protection Act – where the proper course of construction is to read the words of a definition into the enactment and then construe the enactment – where the objects of the Act surround environmental management – where there were no clear words that would constrain the rights of the affected party by an EPO after it was issued – where to prohibit the consideration of special circumstances after an EPO was issued would constrain the affected party’s rights – whether proper construction of the Environmental Protection Act restricts the time in which to determine special circumstances – whether the issue of the EPO was valid – where the period within which to apply for a review of an EPO is a minimum of 10 business days from when the recipient “receives notice of the [EPO] or the administering authority is taken to have made the decision” – where s360(1)(e) requires that an EPO be served on the recipient – where service can be achieved by one of the ways specified in s39 of the Acts Interpretation Act 1954 (Qld), that is by delivering the document to the recipient personally, or by “leaving it at, or by sending it by post, telex, facsimile or similar facility to, the address of the place of residence or business of the person last known to the person serving the document” – where, however, if served by post, s552(1) has the qualification that it may only be done by “properly addressing, prepaying and posting the document as a letter”, in which case service is taken to have been effected “at the time at which the letter is posted” – where for the purposes of s521(2)(a), it is proper service that is the receipt of notice, thus triggering the commencement of the period within which to apply for a review – where what follows from the foregoing is that service and actual receipt of the document are not necessarily the same thing – where within 10 business days of the EPO being served on Mr Bond an application to review the decision was lodged – where thus his application was within the time set by s521(2) (a)(i), s521(3) was not engaged, and therefore a review decision had to be made by 23 June 2016 (10 business days from 8 June 2016), failing which s521(10) provided that a decision would be taken to have been made, confirming the original decision – where no review decision was made by 23 June 2016, and s521(10) deemed a confirmatory decision to have been made that day – where a proper construction of s521 is that: (a) prior to an EPO issuing, the administering authority is not obliged to enquire of the recipient if there are “special circumstances” for the purposes of s521(2) (a), but it may do so; and (b) the determination that there are “special circumstances” for the purposes of s521(2)(a) does not have to be made prior to issuing an EPO, but it can be, and may also be made in the period of 10 business days referred to in s521(2)(a)(i); and (c) once a longer period has been allowed under s521(2) (a)(ii), further periods may be allowed if there are “special circumstances” which warrant that – where the grounds attacking the EPO must fail – where in the circumstances, as that ground was
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