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Sibelco Australia Ltd v Magistrate Graham C Lee & Anor [2014] QCA 113 (13/10333) Fraser and Gotterson JJA and Atkinson J 22/05/2014 (delivered ex tempore)

Full-text: QCA14-113.pdf

Catchwords

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PREROGATIVE WRITS AND ORDERS – CERTIORARI – DISCRETION OF COURT AND MATTERS PRECLUDING RELIEF – GENERALLY – where the appellant sought review of the Magistrate’s decision that it had a case to answer in respect of the second respondent’s complaints – where the applicant sought certiorari for the purpose of quashing that decision, as well as declarations concerning statutory construction – where such relief was refused, inter alia, on discretionary grounds – where the primary judge considered that granting the declarations sought would amount to a collateral attack on the criminal proceedings – whether there was any miscarriage in the exercise of the discretion by the primary judge

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PREROGATIVE WRITS AND ORDERS – CERTIORARI – – GROUNDS FOR CERTIORARI TO QUASH – ERROR OF LAW ON THE FACE OF THE RECORD– GENERALLY – where the appellant argued the error of law was the Magistrate’s failure to hold that a “mining activity” could not also be a “Chapter 4 activity” – whether there were facts not disclosed on the record which were essential to establish the asserted error of law

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PREROGATIVE WRITS AND ORDERS – CERTIORARI – – GROUNDS FOR CERTIORARI TO QUASH – EXCESS OR WANT OF JURISDICTION – GENERALLY – where the appellant argued the Magistrate made an error of law concerning the statutory construction of the offence – whether an error of law concerning an element of an offence, which if established means no offence could be made out, is a jurisdictional error

Summary Notes

General Civil Appeal – where the appellant sought review of the Magistrate’s decision that it had a case to answer in respect of the second respondent’s complaints – where the applicant sought certiorari for the purpose of quashing that decision, as well as declarations concerning statutory construction – where such relief was refused, inter alia, on discretionary grounds – where the primary judge took into account the Court’s traditional reluctance to interfere with an existing criminal process, and the appellant does not contend that this was not a proper consideration to take into account – where the primary judge considered that granting the declarations sought would amount to a collateral attack on the criminal proceedings – whether there was any miscarriage in the exercise of the discretion by the primary judge – where the appellant argued the error of law was the Magistrate’s failure to hold that a “mining activity” could not also be a “Chapter 4 activity” – whether there were facts not disclosed on the record which were essential to establish the asserted error of law – where in this appeal the appellant argued that the facts were sufficiently disclosed by the contentions in the particulars that the extraction of the B grade sand, which was alleged to constitute the contravention, occurred in conjunction with the appellant’s mining activities on the mining leases and that the sand was extracted from the same pit or quarries which were used to carry out the mining activities – where it seems clear that the reference to those activities being carried on in conjunction and in the same pits or quarries did not disclose that the mining for the mineral necessarily itself entailed removal of the sand which did not constitute the mineral, which is the subject of the offence – where the appellant argued the Magistrate made an error of law concerning the statutory construction of the offence – whether an error of law concerning an element of an offence, which if established means no offence could be made out, is a jurisdictional error. Appeal dismissed with costs.