Australian Finegrain Marble Pty Ltd v Kagara Pty Ltd [2006] QLRT 123

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Australian Finegrain Marble Pty Ltd & Kagara Pty Ltd [2006] QLRT 123 PARTIES: Australian Finegrain Marble Pty Ltd (Applicant) & Kagara Pty Ltd (Respondent) FILE NO/S: AML179-186/06 PROCEEDING: Preliminary issue (service and late objections) DELIVERED ON: 26 October 2006 DELIVERED AT: Brisbane HEARING DATE: 24 October 2006 MEMBER/S: Koppenol P ORDER/S: 1. Declare that the applicant’s service of the relevant application documents at the respondent’s West Perth post office box was valid service upon the respondent. (at [18]) 2. Extension of time to lodge respondent’s objections refused. at [18]) 3. Respondent’s objections struck out. (at [18]) CATCHWORDS: MINING LEASE APPLICATIONS – SERVICE OF APPLICATION DOCUMENTS – LATE OBJECTIONS – whether service at landowner’s West Perth (rather than Brisbane) post office box was valid service – whether extension of time to lodge objections should be granted Mineral Resources Act 1989, ss 252(4), 266, 269(5), 387, 399, 399(2), (3) Mineral Resources Regulation 2003, ss 49, 50, 51, 54, 81(2)(c) Lee v Kokstad Mining Pty Ltd [2005] QLRT 160, reconsidered ACI Operations Pty Ltd v Friends of Stradbroke Island Association Inc [2000] QLRT 7, followed COUNSEL: N/A -- 1 of 7 -- SOLICITORS: J. Briggs (Blake Dawson Waldron), for applicant R. Hetherington (Hetherington Exploration and Mining Title Service Pty Ltd) (agent), for respondent Introduction [1] In these 8 mining lease applications, a preliminary issue has arisen as to whether proper service of the applications was effected by the applicant miner upon the respondent landowner. The point is important because if service was proper, the respondent failed to lodge its objection by the last day for objections. Background [2] The applicant completed the mining lease application forms at the Mareeba mining registrar’s office. The respondent’s address was inserted as PO Box 13071, George Street Post Shop, Brisbane Q 4003. The applicant’s sole director, Mr John Douglas Woodward, gave evidence (which I accept) that he was advised by someone in the Mareeba office that that was the address to put on the application forms (which relevantly stated that the landowner’s name and address can be obtained from an NR&M [Department of Natural Resources and Mines] service centre)—and he then did so. [3] After the certificates of public notice were issued on 4 September 2006, the applicant was required by section 252(4) of the Mineral Resources Act 1989 (the Act) to give a copy of the certificates and the mining lease applications to each owner of land the subject of the proposed mining leases. The respondent was, relevantly, that owner. The applicant then sent those documents by registered post to the respondent at PO Box 1320, West Perth WA 6872. That was the respondent’s postal address as shown on its business stationery letterhead. Mr Woodward said (and I accept) that he posted the documents to that address because that was the address that had been used for correspondence between the applicant and the respondent in 2004 and 2005— albeit concerning other mining leases. The documents were signed for and collected on behalf of the respondent on 12 September 2006. The respondent’s registered office and principal place of business is recorded by the Australian Securities and Investments Commission as a West Perth street address. [4] The last day for objections to the mining lease applications was 2 October 2006. The respondent lodged late objections on 6 October 2006. The respondent said that the objections were late because the applicant’s material which had been sent to its Perth address (a) was inadvertently filed and not actioned by respondent company officers, and (b) did not come to the respondent’s agent’s attention until after the closing date for objections. Arguments [5] The respondent submitted that the documents should have been served at the Brisbane address which was used on the applications. That was said to follow from section 399(3) of the Act and section 81(2)(c) of the Mineral Resources Regulation 2003 (the Regulation). As that did not occur, the applications should be recommended for rejection under sections 266 or 269(5) of the Act due to non- compliance with the service requirements. Alternatively, it was submitted that the -- 2 of 7 -- Tribunal should extend the time for objections, so as to accommodate the late objections. [6] The applicant argued that section 399(1), and not sections 399(3) and 81(2)(c), was the relevant and applicable provision—and that it had been complied with. Analysis [7] Section 399 of the Act provides as follows: “399 Mode of service of documents (1) A notice or other document required by this Act to be given or served by a holder of, or applicant for the grant of, a mining tenement to an owner of land shall be duly given or served if— (a) it is served personally upon the owner; or (b) it is sent by registered post to the place of residence or business of the owner last known to the holder or applicant. (2) Except as provided in subsection (1), a direction, notice, order or other document required or authorised by this Act to be given or served upon any person by the Minister, tribunal, mining registrar, deputy mining registrar, field officer or any other officer authorised under this Act or person shall be duly given or served if— (a) it is served personally upon the person to whom it is directed; or (b) it is left at the place of residence or business of the person to whom it is directed last known to the person who gives or serves it; or (c) it is sent by registered post to the place of residence or business of the person to whom it is directed last known to the person who gives or serves it. (3) Where this Act in respect of a matter requires or authorises a person’s name and address to be specified then for the purpose of service of any direction, notice, order or other document in respect of that matter the last address of that person recorded in the register in respect of that matter shall be deemed to be the person’s place of residence or business last known to the person so giving or serving. (4) Where this Act in respect of a matter requires or authorises the name and address for service of a person upon whom any notice may be served on behalf of another person or other persons to be specified, then service upon the person so specified shall be deemed to be service upon the other person or other persons. (5) In this section— registered post means a type of post that requires the recipient’s signature as proof of receipt.” [8] Upon analysis, subsection (1) may be seen as relating to the giving or service of a notice or other document by a mining lease holder or applicant to a landowner. Subsection (2) deals with a different case, namely where a direction, notice, order or other document is required to be given or served on someone by the Minister, Tribunal or departmental officer. Subsection (3), however, is curiously worded. The applicant submitted that it “links back” to subsection (2), so providing a convenient method of service of official documents by means of the legal fiction of deeming. The respondent argued that the provision was not limited to the subsection (2) situation and that the address in the register was deemed to be the correct (and, as I understood the argument, the only) address for service. [9] For present purposes, however, it is not necessary to further examine those alternatives. That is because, in the end, the focus of attention in subsection (3) is relevantly upon “the last address of that person recorded in the register in respect of that matter”. The “register” is defined in the dictionary in the schedule to the Act as “a register maintained under section 387”. Section 387 provides as follows: -- 3 of 7 -- “387 Registers to be maintained (1) Within each mining district the mining registrar shall maintain a register in which shall be recorded particulars as prescribed of— (a) all prospecting permits, mining claims and mining leases the applications for the grant of which were lodged with the mining registrar; and (b) applications for the grant of mining claims and of mining leases the lodgment of which is accepted by the mining registrar; and (c) assignments, mortgages and other dealings in respect of mining claims, mining leases and of applications for mining leases duly lodged with the mining registrar and approved as provided for under this Act; and (d) caveats duly lodged in respect of mining claims, mining leases and of applications for mining leases recorded in the register; and (e) such other matters and things relating to the mining district as are prescribed to be recorded in the register. (2) The chief executive shall maintain a register in which shall be recorded particulars of— (a) all exploration permits and mineral development licences; and (b) applications for the grant of exploration permits and of mineral development licences; and (c) assignments of exploration permits and assignments and mortgages of mineral development licences duly lodged and approved as provided for under this Act; and (d) caveats duly lodged in respect of exploration permits and of mineral development licences; and (e) such other matters and things as are prescribed to be recorded in the register maintained by the chief executive.” [10] The Regulation elaborates the particulars which must be included in the register maintained by the mining registrar (but not the chief executive). Sections 49-51 and 54 of the Regulation provide as follows: “Part 11 Registers Division 1 Particulars that must be included in register kept by mining registrars 49 Application of div 1 This division prescribes, for section 387(1)(e) of the Act, the particulars that a mining registrar for a mining district must include in the register for the mining district. 50 Particulars about applications for prospecting permits, mining claims or mining leases The mining registrar must include, in the register, the following particulars for each application, under the Act, for a prospecting permit, mining claim or mining lease— (a) the date and time the application for the permit, claim or lease was made; (b) the name of the applicant; (c) the date the permit, claim or lease is granted or issued under the Act or, if the application was abandoned, rejected or refused, the date the application was abandoned, rejected or refused; (d) if the application is for a mining claim or mining lease— (i) the date and time when land was marked out under section 56 or 240 of the Act for the application; and (ii) the date a certificate of application for the application for the claim or lease is signed, under section 64(3) or 252(3) of the Act, by the person who lodged the application; and (iii) the date a certificate of public notice relating to the application is given, under section 64A or 252A of the Act, to the applicant for the claim or lease. 51 General particulars about prospecting permits, mining claims and mining leases The mining registrar must include, in the register, the following particulars for each prospecting permit, mining claim or mining lease granted under the Act— (a) the name of the holder or, if a mining claim or lease is held by 2 or more persons, the name and interest of each holder; -- 4 of 7 -- (b) the address for service of notices on the holder or, if a mining claim or lease is held by 2 or more persons, the name and address of the holder on whom the notices are to be served; (c) the name or number identifying the permit, claim or lease; (d) the date on which the permit, claim or lease starts and ends; (e) the term of the permit, claim or lease; (f) if the permit, claim or lease is cancelled or surrendered—the date of the cancellation or surrender; (g) the name of the mining district in which the land to which the permit, claim or lease applies is situated; (h) the description of any other land the holder may use to access the land to which the permit, claim or lease applies; (i) the security required to be paid under— (i) for a prospecting permit—section 26 of the Act; or (ii) for a mining claim—section 83 of the Act; or (iii) for a mining lease—section 277 of the Act; (j) any consents lodged in relation to the permit, claim or lease. … 54 Other particulars about mining leases The mining registrar must include, in the register, the following particulars for each mining lease granted under the Act— (a) the area, and surface area, of the land to which the lease applies; (b) the geographical location of the land to which the lease applies; (c) the local government for the land to which the lease applies; (d) the minerals to which, or the purpose for which, the lease applies; (e) if the lease is renewed—the date of the renewal; (f) the rental payable for the lease; (g) any caveats relating to the lease; (h) any writ of execution relating to the lease; (i) any assignment, sublease, or transmission by death, of the lease or an interest in the lease; (j) any mortgage over the lease or an interest in the lease; (k) the record of any exercise of a power of sale in relation to a mortgage over the lease or interest in the lease; (l) any notice given by the holder under section 652 or 654 of the Act.” [11] As will be observed from a close perusal of those provisions, there is no statutory requirement in respect of a mining lease application for the register to record the landowner’s address—for service or otherwise. Whether such addresses are in fact noted on the register is another matter, but there was no evidence given about that. The respondent submitted that the relevant register was really the Queensland Valuation and Sales (QVAS) register which was said to be maintained as part of the Queensland Land Registry under the Land Act 1994. That submission should not be accepted. QVAS is described on the Department of Natural Resources and Water’s website (www.nrw.qld.gov.au/asdd/qsii2/ANZQL0053000006.htm) in the following terms: “QVAS is the data base used by the Department of Natural Resources for the storage, update and retrieval of valuation and associated property and sales information. It provides an information base for valuing properties and a mass appraisal system for the supply of valuations to Local Government area on either an annual basis or when required by the Minister.” Assuming (as was submitted by the respondent) that the mining registrar’s office in in Mareeba utilised QVAS when advising Mr Woodward of the address for the landowner to be inserted on the mining lease applications, the fact remains that whatever the status of QVAS for Land Act, valuation or departmental purposes, it is -- 5 of 7 -- not a register for the purposes of section 387 of the Mineral Resources Act. On that basis, section 399(3) does not apply in this case. [12] The respondent also submitted that because of section 81(2)(c) of the Regulation (which provides that the mining registrar must not accept a mining lease application if it is not in the approved form), the mining registrar’s acceptance of the application constituted official approval of the landowner’s address for service. I do not accept that proposition. Section 81(2) deals merely with form rather than content, much less with official approval of content. Conclusion about service [13] I am satisfied that section 399(1) of the Act is the applicable provision about service and that the applicant did comply with the relevant statutory requirements. I find that service at the respondent’s West Perth post office address was valid service upon the respondent. Absent consideration of an extension of time (which is dealt with below), as the respondent’s objections were lodged after the last date for objections, they should be struck out and the applications dealt with by the Tribunal on the basis that they are unopposed. Extension of time [14] The respondent submitted that if I determined that service was valid—as I have done, I should exercise my discretion and extend time for the objections to be lodged. Reliance was placed upon my decision in Lee v Kokstad Mining Pty Ltd [2005] QLRT 160. In that matter, after concluding that the mining lease application had not come timeously to the objector’s attention, I set aside the mining referee’s recommendation that the lease be granted and extended the time for his objection. [15] However, this present case has caused me to reconsider my decision in Kokstad Mining. I do so, whilst recognising the fact that the Tribunal’s jurisdiction to make the orders that I did was not disputed when that matter was argued before me last year, nor was my earlier decision in ACI Operations Pty Ltd v Friends of Stradbroke Island Association Inc [2000] QLRT 7 referred to by either of the lawyers who appeared. In ACI, I analysed relevant provisions of the Act and various authorities and concluded that a late mining lease objection was invalid and the Tribunal had no power to extend the time for objections. [16] Having re-examined my reasoning in ACI, I adhere to what I decided there: a late mining lease objection is invalid and the Tribunal has no power to extend the time for objections. It follows that Kokstad Mining was decided per incuriam, in that a different (indeed, contrary) result would have followed if ACI had been drawn to my attention at that time. [17] Accordingly, no extension of time for the subject objections can be granted. -- 6 of 7 -- Orders [18] I will therefore make the following orders: 1. Declare that the applicant’s service of the relevant application documents at the respondent’s West Perth post office box was valid service upon the respondent. 2. Extension of time to lodge respondent’s objections refused. 3. Respondent’s objections struck out. -- 7 of 7 --