Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors [2011] QLAC 1 (2011) 32 QLCR 103

LAND APPEAL COURT OF QUEENSLAND CITATION: Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors [2011] QLAC 1 PARTIES: CHERWELL CREEK COAL PTY LTD ACN 063 763 002 (appellant) v BHP QUEENSLAND COAL INVESTMENTS PTY LTD ACN 098 876 825 (first respondent) QCT RESOURCES PTY LTD ACN 010 808 705 (second respondent) BHP COAL PTY LTD ACN 010 595 721 (third respondent) QCT MINING PTY LTD ACN 010 487 840 (fourth respondent) MITSUBISHI DEVELOPMENT PTY LTD ACN 009 779 873 (fifth respondent) QCT INVESTMENT PTY LTD ACN 010 487 831 (sixth respondent) UMAL CONSOLIDATED PTY LTD ACN 000 767 386 (seventh respondent) FILE NO: LAC010-10 DIVISION: Land Appeal Court of Queensland PROCEEDING: Appeal against a decision about the jurisdiction of the Land Court ORIGINATING COURT: Land Court at Brisbane DELIVERED ON: 8 April 2011 DELIVERED AT: Brisbane HEARING DATE: 15 November 2010; 16 November 2010 THE COURT: Peter Lyons J Mrs CAC MacDonald, President of the Land Court Mr WL Cochrane, Member of the Land Court -- 1 of 20 -- 2 Judgment of the Court ORDER: Appeal dismissed CATCHWORDS: ENERGY AND RESOURCES - MINERALS - COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – OTHER COURTS OR TRIBUNALS – where the appellant had a statutory right to apply to the Land Court for compensation for loss of opportunity – where the respondent alleged an exploration permit had not been validly granted – where the appellant applied to strike out this allegation – where application to strike out dismissed – whether the Land Court has jurisdiction to determine if an exploration permit has been validly granted – whether the Land Court erred in dismissing the application to strike out the allegation. Mineral Resources Act 1989 (Qld), s 370, s 722G Mining Act 1968 (Qld), s 80A Amaca Pty Ltd v Cremer (2006) 66 NSWLR 400, cited Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538, considered Caltabiano v Electoral Commission of Queensland [2009] QCA 182, considered Carr v Western Australia (2007) 232 CLR 138, cited Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554, considered Houssein v Undersecretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88, considered O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356, considered COUNSEL: B O’Donnell QC, with S B Hooper, for the appellant S L Doyle SC, with A M Pomerenke, for the respondents SOLICITORS: Holding Redlich Lawyers for the appellant Allens Arthur Robinson for the respondents [1] THE COURT: Section 722G of the Mineral Resources Act 1989 (Qld) (MRA) gave the appellant (Cherwell Creek) the right to apply to the Land Court for compensation for the loss of its opportunity to “commercialise” certain coal resources. In August 2008 Cherwell Creek made such an application (compensation application). In the compensation application, the respondents (a group of entities to whom it is convenient to refer as BMA) have alleged that an exploration permit for coal (EPC 545) was not validly granted. Cherwell Creek applied to strike out the allegation, unsuccessfully, and has appealed against the refusal of this application. -- 2 of 20 -- 3 Background [2] EPC 545 issued in August 1994. Cherwell Creek made an application for a mineral development licence over part of the land subject to EPC 545 (MDLA 364). BMA are the holders of a mining lease (ML 1775) over adjoining land. They also hold a special lease (SL 12/42239), which partially relates to the area subject to EPC 545. A dispute about the entitlements of the parties resulted in the insertion of Part 18A into the MRA, being ss 722A-722G, which, as has been mentioned, includes provision for the compensation application. [3] Attached to the compensation application was a schedule setting out allegations made by Cherwell Creek in support of its compensation claim. One of those allegations made reference to the Amending Act which introduced Part 18A of the MRA. It was as follows: 4. But for the enactment of the Amending Act, the applicant would have applied for and been issued with a mining lease in respect of the coal contained within MDLA 364. [4] BMA’s response, in a document referred to as its defence, included the following: 3. As to paragraph 4 of Annexure A, the Respondents: … (b) Deny that the applicant would have been issued with a mining lease by reason of the following- … (ii) EPC 545 was not validly granted in 1994 and not validly renewed in August 2003; (iii) Without a valid grant of EPC 545, no mineral development licence or mining lease could or alternatively would have been granted to the applicant; Particulars of (ii) and (iii) and (iv) (A) In purporting to exercise his functions as delegate Mr Balfe granted EPC 545 in the guise of the Minister and not as delegate pursuant to the instrument of delegation, which grant was accordingly an invalid exercise of the delegated power and of no effect; (B) Alternatively the grant of EPC 545 was purportedly made pursuant to a delegation which did not permit the delegate to make the decision, and which required the delegate to refer the application to the Director-General or the Minister, where ‘unusual circumstances’ existed, and to refer the documentation back to the Minister's office because it was ‘of a sensitive or political nature’; -- 3 of 20 -- 4 (C) The application for the grant of EPC 545 had ‘unusual circumstances’ and was ‘of a sensitive or political nature’ by reason of - i. the existence of the Central Queensland Coal Associates Agreement Act 1968 (Qld) (CQCAA Act); ii. clause 9 of Part IX of the CQCAA Act which provided that the rights the holders (which then included some of the Respondents and the predecessors of the other Respondents) of ML 1775 and Special Lease 12/42239 granted pursuant to the CQCAA Act (the Special Lease) could not in any way through any act of the State be ‘impaired, disturbed or prejudicially affected’; iia. the application required consideration to be given to the CQCAA Act and to whether the grant of EPC 545 would amount to a breach by the State of the promise contained in clause 9 of Part IX of the CQCAA Act; iii. The grant of EPC 545 (and by reason thereof the possibility of the subsequent renewal of it and the grant of any further exploration, development or mining tenure over the Special Lease) would impair, disturb and prejudicially affect the Respondents' rights in respect of the Special Lease and ML 1775; iv. Further at the time of the grant of EPC 545 the Respondents had an obligation under clause 5 of Part VIII of the CQCAA Act to retain a stockpile of coal which was and is retained in the area of both EPC 545 and the Special Lease; (D) No power existed (in August 2003) to purport to renew EPC 545 and the purported renewal from 31 August 2003 is of no effect. (iv) the Land Court, in considering the matters prescribed in s 269(4) of the MRA, would not have recommended to the Minister that an application for a mining lease by the applicant be granted in whole or in part; (v) further, the Minister would not have granted a mining lease in whole or in part to the applicant; -- 4 of 20 -- 5 (vi) These are the best particulars the Respondents can provide until completion of interlocutory steps. 4. As to paragraph 5 of Annexure A, the Respondents deny the allegations made as they are untrue and by reason of the matters pleaded in the preceding paragraphs of this defence. 5. As to paragraph 6 of Annexure A, the Respondents deny the allegations made as they are untrue and by reason of the matters pleaded in the following paragraphs of this defence. 6. As to paragraphs 7, 8, 9, 10 and 11 of Annexure A - (a) The Respondents object to the allegations in paragraphs 7, 8, 10 and 11 which refer to factors being ‘likely’ without identifying the material facts relied on for that allegation; (b) The Respondents further object to the allegations as to factors being likely or to the coal resource as being ‘readily’ mineable, when in the absence of particulars those allegations are embarrassing and tend to prejudice the trial of the issues in the proceedings; (c) Further the Respondents are unable to plead to the allegations made prior to proper particularization of the allegations, disclosure from the applicant, provision of the expert evidence upon which the applicant seeks to rely and the obtaining of their own expert reports. 7. As to the allegations in paragraph 12 of Annexure A - (a) Whether or not the Amending Act was enacted - (i) the applicant would not have been granted, and the Minister would have refused, MDL 364; (ii) accordingly, the applicant would not have applied for approval for the extraction of a bulk sample commencing in the first quarter 2009 or at all; (iii) the applicant would not been granted approval for the extraction of a bulk sample commencing in the first quarter 2009 or at all; (iv) the applicant would not have marked out and applied for a mining lease in respect of the area the subject of MDL 364 by about June 2008; (v) in any event marking out could not have been completed by June 2008; (vi) further, the applicant would not been granted a mining lease in respect of the area the subject of MDL 364 by about December 2009 or at all; (vii) further, the applicant would not have commenced the extraction and selling of coal- (A) in respect of any bulk sample by about April 2009 or at all; (B) in respect of mine production in about January 2010 or at all; -- 5 of 20 -- 6 (viii) further, to commence to produce and sell mine production would require significant infrastructure and mine development including coal handling, coal preparation and rail loading facilities which could not be achieved in under 2 years from the lodgment of a mining lease application and the securing of port and rail capacity which would not have been available at all or alternatively prior to 2012; (ix) the applicant would not have carried on the extraction and selling of coal until 2017 or at all; (b) Otherwise denies the facts alleged as they are untrue. 8. As to the allegations in paragraphs 13 and 14 of Annexure A the Respondents are unable to plead to the allegations made - (a) until the applicant provides particulars of the expert evidence upon which it seeks to rely; and (b) until the completion of interlocutory steps and the Respondents themselves obtain expert reports with respect to the matters alleged. 9. As to paragraph 15 of Annexure A: (a) as to sub-paragraph (b) the Respondents are unable to plead to the allegations made until the applicant identifies the provisions of the Act referred to; (b) as to sub-paragraph (h) the Respondents deny the facts alleged as they are untrue; (c) the Respondents admit the allegation in sub-paragraph (i); (d) a mineral development licence would not have been issued to the applicant; (e) a mining lease would not have been granted to the applicant; (f) the applicant would not have conducted any development or utilization of the mining lease alleged; (g) otherwise the Respondents are unable to plead to the allegations made- (i) until the applicant provides particulars of the expert evidence upon which it seeks to rely; and (ii) until the completion of interlocutory steps and the Respondents themselves obtain expert reports with respect to the matters alleged. 10. The Respondents deny the allegations in paragraphs 16 and 17 of Annexure A as they are untrue by reason of the matters otherwise set out in this defence. [5] This provoked Cherwell Creek’s strike-out application, based on s 370 of the MRA. Section 370 MRA [6] Section 370 is found within Part 10 (entitled “Administration and judicial functions”), Division 2 (entitled “The Land Court”). Division 2 includes s 363, which confers on the Land Court jurisdiction to hear and determine “actions, suits and proceedings arising in relation to prospecting, exploration or mining or to any permit, claim, licence or lease granted or issued under this Act or any other Act -- 6 of 20 -- 7 relating to mining”; as well as some matters specifically identified in the balance of s 363. [7] Section 370 is in the following terms: 370 Jurisdiction of Supreme Court (1) The Supreme Court has jurisdiction to hear and determine any proceeding challenging or otherwise relating to the validity of any grant that has been made pursuant to this Act or any Act repealed by this Act or any other Act relating to mining and, notwithstanding any other Act or law, that proceeding shall be heard and determined in that court only. (2) It is immaterial that the Crown is not a party to the proceeding. (3) If the grant in question is declared by the Supreme Court to be invalid, the declaration binds the Crown and a copy of the judgment or order of the court in respect thereof shall be served by the party who benefits from that declaration on the chief executive within 15 business days from the date of that judgment or order. [8] It is convenient to make some preliminary observations about s 370. The conferral of jurisdiction on the Supreme Court is to hear and determine “any proceeding challenging or otherwise relating to the validity of any grant” made pursuant to the MRA. The section makes the Supreme Court’s jurisdiction exclusive “notwithstanding any other Act or law”. It provides that if a declaration of invalidity is made, the declaration binds the Crown, whether or not it was a party; and a copy of the judgment or order of the Court must be served on the chief executive. [9] It is not in issue that a grant of an exploration permit for coal is a grant of the kind referred to in s 370(1). Overview of Part 18A of the MRA [10] It is convenient at this point to note the terms of s 722G, and the context in which they are found. [11] The substantive provisions of Part 18A commence with a provision for the renewal of EPC 545 for a term of two years, though it is limited to certain land.1 The Part then provides for the rejection of certain applications for mining tenements which had been made by Cherwell Creek.2 It further provides that the only mining tenement which might be applied for in respect of certain land, including land in respect of which Cherwell Creek had made an application, is a mining lease; and limits the persons who might apply for such a tenement to BMA.3 It imposes similar limitations in respect of other land, being land the subject of EPC 545.4 It then excludes any liability of the State which might otherwise have arisen as a 1 See MRA s 722B. 2 See MRA s 722C. 3 See MRA s 722D. 4 See MRA s 722E. -- 7 of 20 -- 8 consequence of Part 18A.5 Thereafter follow the provisions which are critical for the compensation application, found in s 722G: 722G Compensation payment by prescribed persons (1) Cherwell Creek may apply to the Land Court for an order for the payment of compensation for the loss of its opportunity, because of the enactment of this part, to commercialise the MDLA 364 coal resource. (2) An application may only be made within 3 months after the commencement day. (3) The prescribed persons are parties to the proceeding on the application. (4) On an application under this section, the Land Court must— (a) decide whether any compensation should be payable; and (b) if it decides compensation should be payable— (i) decide the amount of compensation; and (ii) make an order for payment of the amount by the prescribed persons to Cherwell Creek. (5) In making a decision under subsection (4), the Land Court must have regard to the likelihood that, had this part not been enacted, Cherwell Creek, alone or in conjunction with another person, would have been able to commercialise the MDLA 364 coal resource, having regard to the following matters— (a) the likely extent and quality of the MDLA 364 coal resource; (b) the likely mineability of the MDLA 364 coal resource; (c) the likely market for any coal mined from the MDLA 364 coal resource; (d) the likely life of a mine for the MDLA 364 coal resource; (e) the likely coal revenue generated from the MDLA 364 coal resource; (f) the likely coal revenue generation costs; (g) the likelihood of a mining lease, appropriate for Cherwell Creek to commercialise the MDLA 364 coal resource, being granted under this Act; Note— 5 See MRA s 722F. -- 8 of 20 -- 9 See sections 269(4) and 271(2) for matters that the Land Court and Minister take into account in dealing with an application for the grant of a mining lease. (h) any other relevant matter. (6) Cherwell Creek may appeal to the Land Appeal Court against a decision of the Land Court under this section only on the ground of error of law. (7) Subsection (6) applies despite the Land Court Act 2000, section 64. (8) In this section— coal revenue generation costs means the costs of generating revenue from the MDLA 364 coal resource, including the costs of, or relating to, the following— (a) the proving up of the MDLA 364 coal resource; (b) mine planning and environmental planning. Contentions of the parties [12] While Cherwell Creek accepts that the allegations made in BMA’s defence are relevant to the compensation application, it submits that by virtue of s 370 of the MRA, the Land Court has no jurisdiction to determine whether EPC 545 was validly granted, and accordingly the allegations should be struck out. The principal propositions on which it relies may be summarised as follows: (a) by Part 18A of the MRA, the legislature has conferred on the Land Court jurisdiction to determine Cherwell Creek’s compensation application; (b) when the legislature confers jurisdiction to determine a matter on an existing court, absent express words or a reasonably plain intention to the contrary, the legislature intends to take that court “as it finds it”; (c) accordingly, the conferral of jurisdiction on the Land Court by Part 18A, “takes” that court subject to limitations on its jurisdiction found elsewhere; (d) one of those limitations is found in s 370; (e) BMA’s defence challenges the validity of the grant of EPC 545; (f) by virtue of s 370, that is outside the jurisdiction of the Land Court; (g) accordingly, that part of BMA’s defence which raises this issue should be struck out. [13] The principal submissions relied on by BMA may be summarised as follows: (a) section 370 is concerned with a proceeding, the outcome of which is a judgment or order determining the validity of a grant under the MRA, relating to mining; -- 9 of 20 -- 10 (b) this case does not involve such a proceeding. The relevant proceeding is the compensation application, the question of the validity of EPC 545 being an issue in that proceeding; (c) Part 18A confers on the Land Court jurisdiction to determine all questions arising under s 722G(5). The validity of EPC 545 is such a question; (d) the principle that the legislature, conferring jurisdiction on a court, takes the court as it finds it is a principle relating to the incidents of that conferral. It does not operate to limit additional jurisdiction conferred by the legislature; (e) in any event, the issue raised by BMA is not, properly characterised, an issue “challenging or otherwise relating to” the validity of the grant of EPC 545. Rather BMA accepts that EPC 545 is, and since its inception was, valid by reason of the operation of Part 18A; the issue in the compensation application is whether, but for Part 18A, EPC 545 was validly granted; (f) alternatively, if there be conflict between s 370 and Part 18A, the correct construction of these provisions results in the conferral of jurisdiction by s 722G, which is more specific and later in time, and therefore prevails over s 370. [14] Additional submissions made by Cherwell Creek in response to the submissions of BMA will be identified later in these reasons. Does the compensation application involve a “proceeding” within s 370 of the MRA? [15] The language in s 370 identifies the jurisdiction conferred on the Supreme Court by reference to a “proceeding challenging or otherwise relating to the validity of any grant” under the MRA. The term “proceeding” is not defined in the MRA. Its definition in the Acts Interpretation Act 1954 (Qld) (AIA) is as follows:6 “proceeding means a legal or other action or proceeding.” [16] The language used in this definition is not of particular assistance in the present case. An action is something which previously was commenced by a writ, which might suggest that the term is unlikely to refer simply to the determination of an issue. However, as the definition extends the meaning of the word to include the term “proceeding” itself, its utility is limited. [17] The submissions for Cherwell Creek point out that the term “proceeding” or “proceedings” may have a range of meanings. They refer to authorities that have stated that the term takes its meaning from the context in which it is found.7 Indeed, in Blake v Norris8 it was said that the term might apply to a cross-claim, or even to a step in an action (an expression which may itself not be without some difficulty). Other cases were cited wherein it was said that the term was “capable of covering the whole variety of forensic exercises which may occur in a court”,9 or might refer to “…all actions and causes of action within the one file … and each step or 6 See AIA s 36. 7 Proust v Blake (1989) 17 NSWLR 767, 270; Reynolds v Panten (1991) 23 WAR 215, [58]; Blake v Norris (1990) 20 NSWLR 300, 306-307. 8 Blake v Norris (1990) 20 NSWLR 300, 306-307.. 9 Oates v Consolidated Capital Services Ltd (2009) 257 ALR 558, [116]. -- 10 of 20 -- 11 forensic exercise within that file (which can include a cross-claim)”.10 In addition, Cherwell Creek referred to a statement that the term applied to one of several causes of action (where the others were separately determined), said in the submissions to amount to a decision that the term might apply to part of an action.11 [18] The submissions for BMA commence with the proposition that the term has an ordinary legal meaning, namely, an action (brought in a court).12 To similar effect, reference was made to Herbert Berry Associates Ltd v Inland Revenue Commissioners13 where Lord Simon of Glaisdale said: The primary sense of ‘action’ as a term of legal art is the invocation of the jurisdiction of a court by writ, ‘proceeding’ the invocation of the jurisdiction of a court by process other than writ. [19] However, as was pointed out by Brereton J in Amaca Pty Ltd v Cremer,14 the distinction between a proceeding and an action has not survived. His Honour then stated that generally speaking, “a proceeding means the invocation of jurisdiction by an initiating process, rather than an interlocutory step in a proceeding so instituted”.15 [20] BMA’s submissions also point out, with reference to cases relied upon for Cherwell Creek, that in Blake v Norris it was held that the term did not extend to something less than a cause of action; and in particular, did not extend to separate issues (or the determination of separate issues) within a cause of action.16 It was submitted that Oates v Consolidated Capital Services Ltd17 was a decision in a quite different statutory context, dealing with a statutory derivative action under the Corporations Act 2001 (Cth). A similar submission was made about The Owners Strata Plan 62930 v Kell and Rigby Holdings Pty Ltd.18 With respect to Blacker v National Australia Bank Ltd19 it was pointed out that the decision was that a cause of action might be a proceeding for the purposes of the legislation relating to the transfer of matters between courts. [21] On analysis it would seem that the decisions to which reference has been made generally apply the term to an invocation of a court’s jurisdiction which seeks a formal grant of relief. That might occur by the granting of a remedy consequent on the determination of a cause of action, or by some other order which determines, or perhaps grants, a right (for example, in the exercise of a jurisdiction conferred by statute). The decisions themselves do not support the proposition that the raising of an issue, or the determination of an issue in the course of deciding whether or not some relief or remedy should be granted, is itself a proceeding. [22] It is convenient next to consider the provisions of s 370. Section 370(3) deals with a declaration, and requires a copy of the judgment or order to be served on the chief executive. It focuses on the judicial act which is the outcome of the proceeding. It tends to suggest, therefore, that a proceeding referred to in s 370(1) is a proceeding which seeks an outcome (or formal judgment) determining the validity or otherwise 10 The Owners Strata Plan 62930 v Kell and Rigby Holdings Pty Ltd [2010] NSWSC 612, [401]. 11 Blacker v National Australia Bank Ltd (2000) 158 FLR 142. 12 Pryor v City Offices Co (1883) 10 QBD 504, 508; Blacker, [23]. 13 [1977] 1 WLR 1437, 1446. 14 (2006) 66 NSWLR 400, [164]. 15 Ibid. 16 See Blake v Norris (1990) 20 NSWLR 300, 307-308. 17 (2009) 257 ALR 558, [116]. It was held that an application for leave to bring a derivative action was something which came within the time. 18 [2010] NSWSC 612, 19 (2000) 158 FLR 142. -- 11 of 20 -- 12 of a grant relating to mining under the MRA. However, the assistance to be derived from s 370(3) is somewhat limited. It applies only where a declaration of invalidity is made; whereas s 370(1) confers jurisdiction “to hear and determine any proceeding challenging or otherwise relating to the validity” of a relevant grant. [23] The difficulty which arises is the identification of a proceeding which, by virtue of s 370, the Supreme Court has jurisdiction to hear and determine, and the Land Court does not. While the compensation application raises an issue about whether EPC 545 was validly granted in 1994, that does not have the inevitable consequence that it is a proceeding challenging or otherwise relating to the validity of a grant for the purposes of s 370 of the MRA. It is highly unlikely that s 370 is intended to confer exclusive jurisdiction on the Supreme Court to hear and determine the compensation application, which is no doubt a proceeding. There is no separate proceeding to which s 370 might have application, unless the determination of an issue in a proceeding can itself be characterised as a proceeding. Notwithstanding the authorities referred to on behalf of Cherwell Creek, it is unusual to characterise an issue, or the raising of an issue, as a proceeding. The collocation of that term with the expression “hear and determine” suggests something more expansive. In the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), the term is commonly used as a collective term for a course of activity commenced by some formal act which invokes the Court’s jurisdiction, and which results in some exercise of judicial power, such as a judgment or order. These considerations suggest that the compensation application is not a proceeding to which s 370 applies; and nor is that part of the defence which is sought to be struck out. [24] Cherwell Creek relies on the Second Reading Speech (the Minister’s speech) relating to the introduction of s 80A of the Mining Act 1968 (Qld) (Mining Act), said to be the predecessor of s 370. The speech includes the following: … it is considered that any challenge to the validity of a mining claim, mining lease, authority to prospect or other Crown grant under the Mining Act or other Act relating to mining should be removed from the Wardens Court and should be decided by the Supreme Court. The Amendments so provide.20 [25] For Cherwell Creek, it is submitted that this is a plain statement of Parliamentary intent. [26] Section 80A of the Mining Act (as introduced in 1982) is as follows: 80A Jurisdiction of Supreme Court. (1) The Supreme Court has jurisdiction to hear and determine any proceeding challenging or otherwise relating to the validity of- (a) a mining claim registered or purportedly registered; (b) a mining lease granted or purportedly granted; (c) an authority to prospect issued or purportedly issued; (d) any other Crown grant made or purportedly made, whether before or after the commencement of the Mining Act and Other Acts Amendment Act 1982, pursuant to this Act or any other Act relating to 20 Queensland, Parliamentary Debates, Legislative Assembly, 1 December 1981, 4211 (I Gibbs, Minister for Mines and Energy). -- 12 of 20 -- 13 mining and, notwithstanding any other Act or law, any such proceeding shall be heard and determined in that Court only. (2) It is immaterial that the Crown is not a party to the proceeding. (3) Any such proceeding pending at the commencement of the Mining Act and Other Acts Amendment Act 1982 in a court other than the Supreme Court shall not proceed in that court after that commencement. (4) If the- (a) mining claim; (b) mining lease; (c) authority to prospect; (d) other Crown grant, in question is declared by the Supreme Court to be invalid, the declaration binds the Crown and a copy of the judgment or order of the Court in respect thereof shall be served by the party benefiting from the declaration on the Director- General, Department of Mines, within 21 days from the date of the judgment or order. [27] Plainly, there are some substantial similarities between s 80A of the Mining Act, and s 370 of the MRA. Nevertheless, there are also differences between the two provisions. There are also differences in the statutory contexts in which the provisions are found. [28] It has not been suggested that the Second Reading Speech for the Bill which led to the enactment of s 370 of the MRA is of any assistance. There is no suggestion that the Minister’s speech was adverted to in the course of the enactment of s 370. [29] In those circumstances, there may be some difficulty in relying on the statement made at the time of the enactment of s 80A, to identify the purpose of s 370. [30] Cherwell Creek refers to a statement in O’Grady v Northern Queensland Co Ltd21 (O’Grady) with reference to earlier legislation, as follows: Clearly the intention was to ensure that the jurisdiction of the Supreme Court was put beyond doubt in the circumstances specified in s 80A. [31] That sentence appears immediately after reference to s 80(1) of the 1982 Amendment, which conferred jurisdiction upon a Warden’s Court, “(s)ubject to section 80A”. While the statement cited from O’Grady identifies an intention to ensure the jurisdiction of the Supreme Court, it does not deal with the scope of that jurisdiction, simply noting that it was identified in s 80A. 21 (1990) 169 CLR 356, 372. -- 13 of 20 -- 14 [32] In a somewhat similar vein, the submissions on behalf of BMA refer to the following statement by Gleeson CJ in Carr v Western Australia,22 where, speaking of the purposive approach to the construction of legislation, his Honour said: That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. [33] The purpose of s 370 is to confer on the Supreme Court a jurisdiction which is to be exclusive. That, however, involves drawing a line between matters which fall within that jurisdiction, and matters which do not. It is therefore difficult to identify the location of the line, and to determine whether a dispute falls on one side of it or the other, by reference to the purpose of the provision. Put another way, the exercise would require the determination of the purpose of the provision with such specificity that it enables the determination of the question raised by this case. A better approach, in those circumstances, is to pay careful attention to the language used in the statute, and the statutory context. [34] The Minister’s speech was obviously made, conscious of the language of the Bill which resulted in the 1982 Amendment. The reference to “any challenge to the validity” of one of the interests referred to, is likely to have simply been a summary reference to the language of the Bill. That language, in the ordinary course, is likely to have been chosen with some care by those who were responsible for drafting the Bill. There is some difficulty, therefore, in relying on the Minister’s statement as a way of qualifying the construction of the provision, where the latter is derived from the language used and the general context. Such an approach would assume greater care and accuracy in the choice of language for the Minister’s speech than for the Bill itself. [35] The language used in s 370 makes it clear that the section applies to a proceeding, which can correctly be characterised as a proceeding challenging or otherwise dealing with the validity of a grant under the MRA. The compensation application is a proceeding to determine the compensation payable by BMA to Cherwell Creek under s 722G of the MRA. Notwithstanding there is an issue about whether the grant (and renewal) of EPC 545 was valid, the considerations set out above lead to the conclusion that, for the purposes of s 370, neither the compensation application nor the raising of an issue in the compensation application is a proceeding challenging or otherwise dealing with the validity of a grant under the MRA. Reference to the Second Reading Speech for the 1982 Amendment to the 1968 Act does not affect this conclusion. Taking a court as one finds it [36] Section 3 of the Electricity Commission (Balmain Electric Light Company Purchase) Act 1950 (NSW) (Purchase Act) gave the Land and Valuation Court of New South Wales jurisdiction to determine the value of the undertaking of a 22 (2007) 232 CLR 138, [5]. -- 14 of 20 -- 15 company which had been by statute transferred to the Electricity Commission of NSW. Section 17(1) of the Land and Valuation Court Act 1921 (NSW) (LVCA) provided that when any question of law arises in any proceeding the court shall, if required in writing by any of the parties and subject to certain conditions, state a case for the decision of the Supreme Court, whose decision is binding on the Land and Valuation Court and on all parties to the proceeding. In Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW23 (Electric Light and Power) it was held that, notwithstanding the jurisdiction conferred on the Land and Valuation Court by the Purchase Act, s 17(1) of the LVCA remained operative when that jurisdiction was being exercised. For Cherwell Creek, substantial reliance is placed on the following passage from the judgment of the High Court in that case:24 Section 3 of the Purchase Act takes the course of referring a particular matter for hearing and determination to an existing court established as part of the judicial system of the State, the proceedings of which are regulated by a statutory enactment and a body of rules, and the authority of which is amplified by some, and qualified by other, provisions of the enactment, one qualification being the duty to state a case upon a question of law if required by a party. When such a course is adopted it is taken to mean, unless and except in so far as the contrary intention appears, that it is to the court as such that the matter is referred exercising its known authority according to the rules of procedure by which it is governed and subject to the incidents by which it is affected. [37] There then follow quotations from a number of authorities, together with reference to the course taken by the lower courts. Shortly afterwards, another passage from Electric Light and Power relied on for Cherwell Creek appears:25 When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may safely be made that it takes it as it finds it with all its incidents and the inference will accord with reality. [38] Section 76A of the Factories, Shops and Industries Act 1962 (NSW) provided for an appeal to the Industrial Commission of New South Wales against a refusal to register a shop for extended trading hours. Section 84 of the Industrial Arbitration Act (1940) NSW protected the decisions of the Commission from challenge. In Houssein v Undersecretary of Industrial Relations and Technology (NSW)26 it was submitted that this section did not apply to the Industrial Commission, in dealing with an appeal, jurisdiction to hear which was conferred by s 76A. However, the High Court repeated the latter passage quoted in these reasons from Electric Light and Power, and continued:27 23 (1956) 94 CLR 554. 24 Ibid, 559. 25 Ibid, 560. 26 (1982) 148 CLR 88. 27 Ibid, 96. -- 15 of 20 -- 16 The legislature, having chosen the Commission as the body to hear and determine the appeal, must be taken to have intended its orders made in exercise of this jurisdiction to be subject to s 84 of the Industrial Arbitration Act unless s 76 manifests a contrary intention. It does not. For Cherwell Creek, reliance was also placed on that passage. [39] Similarly, Cherwell Creek placed reliance on the following passage from Caltabiano v Electoral Commission of Queensland:28 As is apparent from the above passage [from Electric Light and Power], whether the prima facie position pertains in any case is dependant on the construction of the statute by which the referral is made. However, as the words emphasised above show, the presumption that the rules of practice and procedure of the court entrusted with the additional jurisdiction will apply, is not readily displaced. [40] In the same judgment, Fraser JA relied upon Electric Light and Power for the proposition that the general procedural rules applicable in the Supreme Court apply to applications involving the exercise of the court’s jurisdiction under the Electoral Act.29 [41] The logical starting point for the submissions made on behalf of BMA is that Part 18A confers additional jurisdiction on the Land Court, and accordingly changes its jurisdiction. The effect of the submissions made on behalf of BMA is that the authorities relied upon by Cherwell Creek are not directed to the scope of the jurisdiction conferred, but generally to matters of practice and procedure, and to the incidents of the existing jurisdiction of the court upon which the additional jurisdiction is conferred. It would appear that examples of such incidents are the right of appeal; a requirement to state a case on a question of law; or the protection of the court’s decision from challenge. [42] While the language used in some of the passages relied on by Cherwell Creek is consistent with its submission, some of the language is a little less clear. For example, the first passage quoted from Electric Light and Power refers to the “authority” of the court on which the additional jurisdiction is conferred. [43] It might be said that in Electric Light and Power, the High Court held that notwithstanding that the conferral of jurisdiction on the Land and Valuation Court would ordinarily be understood to include the conferral of a power to determine questions of law which will arise in the course of the exercise of that jurisdiction, the limitation on that court’s power to decide questions of law found in the LVCA remained effective, absent a clear indication to the contrary in the statute which conferred the additional jurisdiction. However, it should be recognised that the case was concerned with the mode by which the Land and Valuation Court would ultimately reach a decision on the question referred to it by the Purchase Act. That was, in certain circumstances, by referring a stated case on a question of law to the Supreme Court; and acting in accordance with the decision of that Court. [44] Section 370 of the MRA does not specify a means by which the Land Court is to come to a decision in the exercise of its jurisdiction. It has the effect of excluding certain proceedings from the jurisdiction of the Land Court. In that respect, it is 28 [2009] QCA 182, [15] per Muir JA. 29 See Caltabiano, [87], [88]. -- 16 of 20 -- 17 different from the provisions of s 17(1) of the LVCA. The effect of the authorities seems to be that where other legislation specifies the mode by which the jurisdiction of a court is to be exercised, including matters of practice and procedure, and the manner in which the court will proceed to the determination of a matter within its jurisdiction, the conferral of additional jurisdiction will require the court to proceed in the same way. However, provisions relating to the manner in which a court is to exercise its jurisdiction, or to reach its decision, are different in kind from s 370. It is not of the same character as the provisions considered in Electric Light and Power. Still less is it the kind of provision dealt with in Houssein, or in Caltabiano. It follows that the principles stated in the cases relied upon by Cherwell Creek do not apply; and that those principles in combination with s 370 do not prevent the Land Court from dealing with the allegations raised by paragraph 3(v)(ii) and paragraph 3(v)(iii) of the defence. A challenge to the validity of a grant under the MRA? [45] For BMA it is submitted that the issue raised by paragraphs 3(b)(ii) and (iii) of the defence is not in truth a challenge to the validity of the grant of EPC 545, nor does it otherwise relate to the validity of that grant. BMA accepts that, whatever defects may have been associated with the grant originally, they have been cured by the enactment of Part 18A of the MRA; and that the provisions of Part 18A retrospectively make the grant valid. The issues raised by paragraphs 3(b)(ii) and (iii) are raised on the hypothetical basis on which the Land Court is to assess compensation under s 722G of the MRA, the provisions of which require the Land Court, in deciding whether compensation should be paid (and if so, the amount), to proceed as if Part 18A had not been enacted. [46] It should be noted that the submission is consistent with the position taken by BMA in other litigation. Proceedings were commenced challenging the validity of the 2003 renewal of EPC 545. In those proceedings, BMA challenged the validity of the original grant of EPC 545, on bases which appear to be consistent with the issues raised by paragraphs 3(b)(ii) and (iii) of their defence. As a consequence of the enactment of Part 18A, they sought and obtained leave to discontinue those proceedings.30 [47] For Cherwell Creek, it is submitted that nevertheless paragraphs 3(b)(ii) and (iii) of the defence challenge the validity of EPC 545, and accordingly fall within the scope of s 370 of the MRA. [48] At this point, it is useful to focus attention upon the statutory provision which makes relevant these paragraphs of the defence. Section 722G(5) of the MRA requires the Land Court, in deciding the compensation application, to have regard to the likelihood that had Part 18A not been enacted, Cherwell Creek would have been able to “commercialise the MDLA 364 coal resource;” and in having regard to that matter, to have regard to (amongst other things) the likelihood of the grant of an appropriate mining lease; and any other relevant matter. It can therefore be seen that the validity question raised in the defence is a sub-issue in the compensation application. [49] In truth, that sub-issue is not a challenge to the validity of the grant of EPC 545; nor does it otherwise relate to the validity of that grant. A determination of the issue by the Land Court will say nothing about the validity of the grant, because the 30 BHP Coal Pty Ltd & Ors v Minister for Natural Resources and Mines & Anor, unreported, Byrne SJA. SC No 10198 of 2003, 30 November 2009. -- 17 of 20 -- 18 determination will be made on an assumption known to be untrue, namely, that Part 18A of the MRA had not been enacted. [50] It follows that, if the raising of the issue of the validity of the grant of EPC 545 is a proceeding, that proceeding is not one challenging or otherwise relating to the validity of the grant of EPC 545; and if the raising of an issue as to the validity of EPC 545 were a proceeding for the purposes of s 370 of th MRA, the section does not prevent the Land Court from determining that issue. Is there conflict between s 370 and s 722G of the MRA? [51] This question assumes that paragraphs 3(b)(ii) and (iii) of the defence are (or give rise to) a proceeding for the purposes of s 370; and that that proceeding challenges or otherwise relates to the validity of the grant of EPC 545. In view of what has been said earlier, it is unnecessary to determine this question. Nevertheless, it seems appropriate to deal with the parties’ submissions. [52] For Cherwell Creek, it is submitted that s 370 is a provision which specifically addresses the jurisdiction of the court to determine the validity of a grant, such as the grant of EPC 545; and that s 722G is a general provision which must be read subject to s 370.31 Cherwell Creek seeks to fortify that submission by reference to the principle that where the intention of a specific provision is exhaustively to govern a subject matter, and where a general provision would otherwise encroach on that subject matter, the specific provision is to prevail.32 It points to the inclusion in s 370 of the words “notwithstanding any other Act or law;” and the omission from s 722G of any reference to the question of the validity of the grant of EPC 545. [53] On the other hand, it is submitted for BMA that Part 18A of the MRA is specific legislation, which in the event of conflict, overrides s 370.33 It is submitted that an examination of the provisions of Part 18A, supported by reference to the Explanatory Note for the Amendment which enacted it, demonstrates that Part 18A was introduced to resolve a particular dispute. It is also submitted that at the time of enactment, the dispute included the challenge to the validity of the grant of EPC 545, in the judicial proceedings previously mentioned. Part 18A provided Cherwell Creek with a special right, namely, to apply for compensation. It contains provisions conferring a specific jurisdiction on the Land Court, to determine that application. The submissions also point out that the Land Court is required to have regard to “any other relevant matter”, a submission of some force, it being accepted that the validity of EPC 545 (ignoring the effect of Part 18A) is relevant to the compensation application. The submission also relies upon the fact that the enactment of Part 18A occurred subsequent to the enactment of s 370.34 [54] Resolution of conflict between statutory provisions by reference to a principle that general provisions do not derogate from the effect of special provisions is only required where the conflict is clearly established. A clearly established conflict is to be assumed for the purpose of considering the submissions. [55] As the submissions highlight, there can be debate about which provisions are general, and which are specific. There is much to be said for the view that the 31 Relying on Goodwin v Phillips (1908) 7 CLR 1, 14. 32 Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-Stock Corporation & Ors (No 2) (1980) 29 ALR 333, 347. 33 The submissions rely on Goodwin v Phillips, supra, and other authorities to similar effect. 34 See Denning v Ipswich City Council [1990] 1 Qd R 528, 531; other provisions of the MRA; and note the absence of any such reference to s 370. -- 18 of 20 -- 19 provisions of Part 18A confer a quite specific jurisdiction on the Land Court, and to the extent that its provisions conflict with the limitation on the jurisdiction of that court (and other courts) found in s 370, the provisions of Part 18A are to prevail. [56] The principle to which reference has been made is not, however, a fixed and inflexible rule of law, or of statutory interpretation. It was discussed in Associated Minerals Consolidated Ltd v Wyong Shire Council35 where the discussion was introduced by a passage which included the following: The problem is one of ascertaining the legislative intention: is it to leave the earlier statute intact, with autonomous application to its own subject matter; is it to override the earlier statute in case of any inconsistency between the two; is it to add an additional layer of legislation on top of the pre-existing legislation, so that each may operate within its respective field? [57] After a statement of the principle referred to above, the judgment continued with the following:36 The principle … and others to a similar effect is of course unexceptionable but cases are rarely so simple as this, for even where the earlier statute deals with a particular and limited subject matter which is included within the general subject matter with which the later statute is concerned, it is still a matter of legislative intention, which the courts endeavour to extract from all available indications, whether the former is left intact, or is superseded, and the cases in which the latter has been held are almost as numerous as the former. [58] In enacting Part 18A the legislature, in effect, required the Land Court to determine an application for compensation made by Cherwell Creek under that Part. It also required the Land Court to have regard to “any other relevant matter”. If the submissions made on behalf of Cherwell Creek are correct, the legislature left the Land Court without the means of determining a matter admitted to be relevant. It would be surprising if that was the intent of the legislature. Notwithstanding the matters raised on behalf of Cherwell Creek (including the fact that Part 18A in places specifically addresses the relationship between its provisions and other provisions of the MRA), it seems more likely that the legislature intended to confer on the Land Court the jurisdiction to determine all matters relevant to the compensation application, including the validity of the grant of EPC 545 (on the assumption that Part 18A had not been enacted, and notwithstanding s 370). Other matters [59] The submissions for BMA point out that on a literal reading of s 370, it has no application to the jurisdiction conferred by Part 18A. That is because that part of the section which makes the jurisdiction of the Supreme Court exclusive, does so “notwithstanding any other Act or law”; and accordingly, expresses an intention not to prevail over provisions of the MRA. Obviously, the language of s 370 provides support for that submission. However, acceptance of it would mean that the Land Court would generally retain jurisdiction to determine the validity of any grant made under the MRA. To determine this appeal, it is unnecessary to deal with this question, and it seems undesirable to do so. 35 [1975] AC 538, 553. 36 Ibid, 553-554. -- 19 of 20 -- 20 [60] Had Cherwell Creek been successful on this appeal, it sought an order striking out paragraphs 3(b)(ii) and (iii) of the defence. It is doubtful that, had its submissions been accepted, this was an appropriate form of relief. As has been mentioned, Cherwell Creek accepts the relevance of the validity issue raised by these paragraphs. Its real contention is that the Land Court cannot resolve that question, and only the Supreme Court can do so. It may be that some form of relief, other than striking out these paragraphs, might have been appropriate. Conclusion [61] The pleading of the allegations found in paragraphs 3(b)(ii) and (iii) of the defence is not a “proceeding” for the purposes of s 370 of the MRA. The issue raised by those paragraphs is not a challenge to the validity of the grant of EPC 545; nor does it relate to the validity of that grant. Properly construed, s 370 is not intended to apply to a proceeding such as the compensation application. If there were conflict between the provisions of s 370 and the provisions of Part 18A which confer jurisdiction on the Land Court to determine the compensation application, the latter provisions prevail, with the result that the Land Court has jurisdiction to determine the issue raised by paragraphs 3(b)(ii) and (iii) of the defence. The Land Court was correct to dismiss Cherwell Creek’s application; and its appeal to this court should be dismissed. ORDER Appeal dismissed. Peter Lyons J CAC MacDonald President of the Land Court WL Cochrane Member of the Land Court -- 20 of 20 --