Denjim Pty Ltd v National Gold Pty Limited; Denjim Pty Ltd v AU Gold Pty Limited [2021] QLC 16

LAND COURT OF QUEENSLAND CITATION: Denjim Pty Ltd v National Gold Pty Limited; Denjim Pty Ltd v AU Gold Pty Limited [2021] QLC 16 PARTIES: Denjim Pty Ltd (applicant) v National Gold Pty Limited (respondent) FILE NO: MER458-20 PARTIES: Denjim Pty Ltd (applicant) v AU Gold Pty Limited (respondent) FILE NO: MER459-20 PROCEEDING: Application for stay of proceedings DELIVERED ON: 19 April 2021 DELIVERED AT: Brisbane HEARD ON: Submissions closed 16 April 2021 HEARD AT: Heard on the papers PRESIDENT: FY Kingham ORDERS: 1. The application for injunctive relief by the respondents is dismissed. 2. Proceedings MER458-20 and MER459-20 be stayed until further order. 3. Costs are reserved, including the costs of the application for an injunction. -- 1 of 5 -- 2 CATCHWORDS: ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – where the applicant applied to remove caveats lodged by the respondents in relation to several mining and exploration tenures issued under the Mineral Resources Act 1989 – where the applicant sought that the applications are stayed to seek relief in the Supreme Court – where s 363 of the Mineral Resources Act 1989 confers jurisdiction on the Land Court – where the relevant test requires a direct and not merely incidental connection between the claim and the mining tenure – where the Court held that the claims are not within its jurisdiction – where the respondents did not oppose the jurisdictional point, however, contended that the applications should be dismissed with costs – where the Court did not agree with the respondents’ bases to dismiss the applications – where the Court held that proceedings be stayed Land Court Act 2000 s 5 Mineral Resources Act 1989 s 27(2), s 28(2), s 363 Central Queensland Speleological Society Inc v Queensland Cement Pty Ltd (No 1) [1989] 1 Qd R 512, cited O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; [1990] HCA 16, cited APPEARANCES: BJ Kable (instructed by Ashurst) for the applicant MT Fernandes (instructed by Centurion Lawyers) for the respondents [1] Denjim Pty Ltd applied to remove caveats lodged by National Gold Pty Limited and AU Gold Pty Limited, in relation to a number of mining and exploration tenures issued to Denjim under the Mineral Resources Act 1989. [2] The caveats were lodged with Denjim’s consent pursuant to agreements between Denjim and each of National Gold and AU Gold. No substantive progress has been made in these applications. Denjim has applied to stay them so that it may seek relief in the Supreme Court in relation to the agreements. [3] The proposed claims include the following: 1. a declaration that the agreements have been validly terminated; 2. a declaration that each of National Gold and AU Gold holds no interest in the tenures; 3. In relation to the agreement with National Gold in the alternative: -- 2 of 5 -- 3 (a) rectification of the agreement for mutual or unilateral mistake; or (b) a declaration the agreement is void for uncertainty. [4] At my request, the parties provided submissions on the jurisdiction of the Court to hear the claims proposed to be brought in the Supreme Court. [5] Section 363 of the Mineral Resources Act 1989 confers jurisdiction on the Court to: 363 Substantive jurisdiction (1) The Land Court shall have jurisdiction to hear and determine actions, suits and proceedings arising in relation to prospecting, exploration or mining, to any activity under section 386V, or to any permit, claim, licence or lease granted or issued under this Act or any other Act relating to mining. (2) Without limiting the generality of subsection (1), the Land Court shall have jurisdiction to hear and determine actions, suits and proceedings with respect to— (a) the right to possession of or other interest or share in any mining claim, exploration permit, mineral development licence or mining lease; … [6] To the extent the Court has jurisdiction, it is exclusive, pursuant to s 5 of the Land Court Act 2000. [7] Both parties have provided written submissions to the effect that the Land Court does not have jurisdiction in relation to the proposed claims. [8] Denjim relies on the decision of the High Court in O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356. In that case, s 80(1) of the Mining Act 1968 was invoked in relation to the defendant’s counterclaim in proceedings about a joint venture agreement to conduct exploration and mining operations on a mining lease. [9] In that case, the mining tenures were not the subject of the counterclaim, which questioned the validity of the plaintiff’s purported recission of the agreement, and asserted the plaintiff failed to perform one of its terms. Justices Toohey and Gaudron distinguished the counterclaim from a claim for specific performance of a contract to sell a mining tenure or a claim for an order to sell the same. Justice Dawson observed that proceedings arising out of a contract to deal with a mining tenement may raise only questions of personal obligations under the contract, rather than questions relating to the mining tenement. [10] In short, the Court enunciated a test that requires a direct, not merely an incidental, connection between the claim and the mining tenure. -- 3 of 5 -- 4 [11] A similarly restrictive approach to s 80 was taken by the Queensland Court of Appeal in Central Queensland Speleological Society Inc v Queensland Cement Pty Ltd (No 1) [1989] 1 Qd R 512. Justice Thomas noted the general words used in s 80, taken in their widest sense, would have the effect of ousting a substantial part of the jurisdiction of the superior courts. A conclusion that should not be lightly reached. [12] Although s 363 of the MRA has not been judicially considered on this point, the material subsections employ wording that is substantially the same as s 80(1). [13] Having considered the draft pleadings, and the parties’ submissions, I am satisfied the proposed claims are not within the jurisdiction of the Land Court. [14] Although National Gold and AU Gold accept the Court does not have jurisdiction to hear the proposed claims, it opposes orders staying the applications to remove the caveats. They argue the applications should be dismissed with costs. [15] In summary, the respondents assert Denjim has implicitly conceded there is a serious question to be tried in respect of the caveats and there is no utility in the applications remaining on foot. [16] I do not accept that submission. The proposed claims seek different relief, advancing the same factual case as raised in these applications. The claims, in the alternative, challenge the foundation for any caveatable interest for the respondent companies. [17] The respondents have not responded to Denjim’s request that they withdraw the caveats. Unless they do so, the caveats will continue until they are removed. That is the effect of s 27(2) of the MRA. They can only be removed by an order of the Land Court under s 28(2). It is relief that the Supreme Court cannot grant. [18] I am not persuaded Denjim’s conduct in bringing these applications was unreasonable, or to lodge the applications “jumped the gun” as the respondent’s counsel suggested. To date, except for the orders I made about submissions on jurisdiction, all orders have been made by consent. [19] That included the parties’ participation in a mediation in an attempt to resolve their dispute by agreement. Had that been successful, these proceedings could have been resolved by consent, and without the need to bring any claim in the Supreme Court. On the limited evidence currently before the Court, Denjim’s decision to invoke the -- 4 of 5 -- 5 Court’s jurisdiction to remove the caveats, and seek to resolve the dispute through mediation, could not be characterised as unreasonable. [20] The respondents have not identified any other basis upon which I could either dismiss the applications or order costs against Denjim. [21] The applications should be stayed so the proposed claims can be determined in the Supreme Court. Costs will be reserved. [22] Although the respondents are legally represented, a director of the companies has recently filed a general application on behalf of the respondents seeking injunctive relief. I am advised that their lawyers do not have instructions in relation to those applications. Given the apparent change in representation, I will assume the respondents are now self-represented. So they may understand the effect of these proceedings being stayed, I observe that the application for injunctions cannot progress in these proceedings until the proceedings are no longer stayed. I say nothing about alternative means that the respondents may have to invoke this Court’s jurisdiction – I am merely commenting on the general application filed for injunctive relief in these proceedings. [23] I order that the application for injunctive relief by the respondents is dismissed. [24] I order that proceedings MER458-20 and MER459-20 be stayed until further order, with costs reserved, including the costs of the application for an injunction. -- 5 of 5 --