Atidale Pty Ltd v Minister for Minerals & Energy [1996] QCA 535

1 COURT OF APPEAL [1996] QCA 535 DAVIES JA McPHERSON JA DOWSETT J Appeal No 1645 of 1996 ATIDALE PTY LTD Appellant and MINISTER FOR MINERALS & ENERGY Respondent BRISBANE ..DATE 26/11/96 JUDGMENT -- 1 of 5 -- 261196 T5/BP M/T COA294/96 2 JUDGMENT DAVIES JA: This is an appeal from a Judge in Chambers refusing an application to review a decision of the respondent to reject the appellant's mining lease application. The sole question raised by the appeal is whether the appellant prior to the commencement of the Mineral Resources Act 1989 held an entitlement in respect of which after the commencement of the Act, any activity in respect of that entitlement must be carried on under the authority of a mining lease - Schedule 2 clause 17(1) as it then was, see now Schedule clause 9(1). It was common ground that the entitlement referred to there was an entitlement to extract rock from a quarry owned by another and it was common ground that such extraction after the commencement of the Act required a mining lease. The entitlement which the appellant claims it had prior to the commencement of the Act was alleged to arise from a consent from the owner of the land to extract the rock. However subject to what I say a little later, it couldn't then do so lawfully without a licence issued by the Gatton Shire Council pursuant to a by law of that Council which provided, "A person shall not commence nor carry on nor cause to be carried on or be concerned in the carrying on of an extractive industry on land within the shire area without first obtaining a -- 2 of 5 -- 261196 T5/BP M/T COA294/96 3 JUDGMENT licence from the council so to do." The consent of the owner did not therefore in my view entitle the appellant to extract rock for the land unless the entitlement included an unlawful entitlement and that seems to be what the appellant in effect argues despite Mr Fleming's valiant attempts to deny that. It submits that a contractual right is sufficient and seeks to derive some support from the earlier version of clause 17, since deleted, which included after the words "entitlement" in that clause the words "in respect of anything under any Act". But as Mr Justice Dowsett pointed out during the course of argument in this case, that would include the case where a use was prohibited but where there was a contractual right as against the owner to perform that use and Mr Fleming submits or concedes that his argument would apply equally to a person who was no more than merely an owner of land at the relevant time. The argument in my view is unsustainable. The purpose of clause 17(1) is to confer a preferred status on a person who prior to the commencement of the Act was lawfully entitled to do what the Act now prohibits except pursuant to a mining lease. That is the view which the learned Chamber Judge took and it is a view which, in my opinion, is plainly right. -- 3 of 5 -- 261196 T5/BP M/T COA294/96 4 JUDGMENT McPHERSON JA: I agree. DOWSETT J: I also agree. DAVIES JA: The appeal should therefore be dismissed. The respondent seeks to cross-appeal solely on the question of costs. The learned Chamber Judge made no order as to costs. The respondent submits that as it was successful before the Chamber Judge, it should have the costs below. Subject to the possible application of section 49 of the Judicial Review Act, a cross-appeal solely on the question of costs must have the leave of the Judge making or refusing the order, Schonnecht & Ors v. Golden Casket Art Union Office, [1995] 2 QdR 346. No such leave was obtained. Section 49 applies only to cost applications by, in this case, the appellant and it therefore has no application. Mr Hinson for the respondent referred us to Lachlan v. Hartley and in particular to a passage in the judgment of Mr Justice Connolly at page 309 in which His Honour referred to the exceptional case where a discretion has not been really exercised at all: see also Grundmann v. Georgeson in this Court in the judgment of Mr Justice Dowsett. But that is plainly not this case. There is no substance, in my view, in the cross-appeal and it should also be -- 4 of 5 -- 261196 T5/BP M/T COA294/96 5 JUDGMENT dismissed. McPHERSON JA: Yes. I agree. I would only add that I am very far from thinking that the general provisions of section 49 of the Judicial Review Act have any application to orders for costs made in the Supreme Court or displace the particular provisions of the Judicature Act section 9 and the rules of the Supreme Court that apply generally to litigation in this venue. I agree with what Mr Justice Davies has said. DOWSETT J: I also agree. DAVIES JA: The orders are as I have indicated. MR HINSON: I do ask for costs of the appeal, Your Honour. DAVIES JA: Yes? What do you say about that, Mr Fleming? You can't resist that, can you? MR FLEMING: Very unfortunate, Your Honour. DAVIES JA: It's a very unfortunate case and I accept that. MR FLEMING: Yes. DAVIES JA: But it seems to me also that the appeal is at best - was at best barely arguable. MR FLEMING: Your Honour, I can say nothing further. DAVIES JA: Yes, with costs. ---- -- 5 of 5 --