A recent Land Court of Queensland decision has underscored the difficulties in successfully seeking a stay in circumstances where a mining lease recommendation is being challenged by way of a judicial review (Skilton v 2PL Superannuation Pty Ltd [2019] QLC 45) (Skilton's Case).
The facts
Mr Skilton had successfully obtained a Land Court recommendation for the grant of a mining lease, a recommendation to which the landowners had objected.
A referral had then been made to the Land Court for a determination of compensation payable to an entity related to the landowners underlying the mining lease.
Meanwhile, the landowners had separately sought a judicial review of the recommendation decision.
The landowner entity then sought to stay the compensation proceedings until the conclusion of the judicial review.
Four principles governing the application for a stay
Member Stilgoe of the Land Court noted that the fundamental principle governing applications for a stay is that the successful party to litigation is prima facie entitled to the fruits of its judgement and only certain circumstances could warrant a departure from this position.
The Land Court noted four main established principles when making a determination about whether to grant a stay of proceedings in the circumstances of the case:
- is it an appropriate case to grant a stay?;
- does the applicant have an arguable case on the judicial review?;
- would a refusal of the stay render the judicial review nugatory?; and
- does the balance of convenience favour the granting of a stay?
The Land Court looked to a Supreme Court decision, New Acland Coal Pty Ltd v Smith [2017] QSC 216 (New Acland Case), which involved an application to stay the operation of a Land Court recommendation about a mining lease and associated environmental authority, pending the outcome of judicial review proceedings in respect of that Land Court recommendation. In the New Acland Case, the stay was refused.
By contrast, Skilton's Case involved an application to stay the compensation proceedings that followed the recommendation decision – essentially, more akin to an adjournment of the compensation proceedings until after the judicial review of the recommendation decision.
Despite such differences, the Land Court in Skilton's Case applied the proposition from the New Acland Case (which, the Land Court noted "paraphrased" the four principles identified above) that, in such proceedings, there must be consideration of the prospects of success and the potential for irreparable harm and where the balance of convenience lies.
Prospects of success
The Land Court would not comment on the prospects of success of the judicial review proceedings, but made the simple finding that there were arguable grounds for success and that this was enough to satisfy this criterion.
Irreparable harm
The second consideration involved determining whether there was going to be irreparable harm resulting from a refusal of the stay application. The landowners had made no submissions in their application with regard to irreparable harm. As a consequence, the Land Court found that a refusal of the stay application would not cause irreparable harm which could not be addressed in terms of costs or in some other way.
Balance of convenience
Principally, the third consideration, given significant attention, was the balance of convenience: the Land Court had to weigh up the inconveniences to the parties resulting from the grant of the stay application.
The Land Court recognised that there would be inconvenience imposed on Mr Skilton if the stay application were granted; he had been denied access to a potential mining lease for a considerable period (with the parties having been in dispute since 2016) and was keen to access the mining lease and proceed with mining operations.
On the other hand, the Land Court noted that the landowners had raised the matters of:
- their expenses and time involved in preparing the material for the compensation proceedings; and
- the potential for changed conditions, resulting from the judicial review proceedings.
In relation to these matters, the Land Court noted:
- there was no potential for changed conditions resulting from the judicial review proceedings, because those proceedings referred to an "all or nothing case" where the basis of those proceedings was that the Land Court was wrong in recommending the grant of the mining lease; and
- while the landowners were going to be put to an expense in having to prepare for the compensation proceedings, the reality was that if the judicial review proceedings were successful those expenses would not be required at all, and in any case, there would be nothing to stop Mr Skilton reapplying for the mining lease and nothing to say that that such application would not be successful in the future.
The Land Court noted that compensation proceedings are not an opportunity to delay the grant of a mining lease. It also noted that the area in question had an extensive history of mining claims and mining leases and determined that the compensation proceedings should proceed such that, if the judicial review proceedings were not successful, Mr Skilton would have the opportunity to access the mining lease sooner rather than later.
Ultimately, the Land Court determined that the balance of convenience favoured the refusal of the stay application, and orders were made accordingly.
What Skilton's Case means for future stay applications
The principles considered in the New Acland Case, as affirmed by Member Stilgoe in Skilton's Case, provide guidance on what the Land Court will consider in determining whether a stay application (or an adjournment of related proceedings) will be granted when a Land Court recommendation about a mining lease application is subject to judicial review proceedings – and that guidance shows that (so far) such applications will have a reasonably high bar to surmount.