Atidale Pty Ltd v Minister for Minerals & Energy [1996] QSC 16

TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION de JERSEY J APN No 508 of 1994 ATIDALE PTY LTD and MINISTER ~OR MINERALS & ENERGY BRISBANE .. DATE 01/02/96 JUDGMENT 1 REVISED COPIES iSSUED C:ta.te ?21Jon:mg Bureau Applicant Respondent 4th Floor. The Law Courts. George Street. Brisbane. Q. 4000 Telephone: (07) 227 -1360. Facsimile: (07) 227 5532 -- 1 of 10 -- 010296 kaw (de Jersey J) HIS HONOUR: This is an application by Atidale Pty Ltd for the review of a decision by the Minister for Minerals and Energy to refuse its application for a mining lease. The decision of the Minister was dated 17 January 1994. The application for the mining lease was made on 29 November 1990. It was, indeed, made in the name of Atidale Pty Ltd and there is no challenge to the form of the application. It is not necessary for me, for the moment, to detail the way in which the department dealt with the application and I propose at this stage to focus on the reasons for its rejection. Those argued before me fall into two categories. The first foc~sed on clause 17.1 of the transitional provisions included in schedule two to the Mineral Resources Act 1989, the successor to the Mining Act. Clause 17 subclause 1 provided for applications for mining leases, among other things, to be made within a period of three months from the commencement of the new Act 1 September 1990 by persons who, though not entitled to apply for leases under the new Act, nevertheless had a previous "entitlement" . In particular, extracting the relevant words, the provision provides: "A person uho prior to the commencement of this Act holds an entitlement in respect of which, after the commencement of this Act, an~ activity carried on in 10 20 30 40 respect of that entitlement must be carried on under ~ the authority of a ... mining lease or other authority under this Act and the other provisions of this schedule do not provide in relation thereto, may during the prescribed period ... apply for the grant of a relevant ... mining lease ... ". 60 2 JUDGMENT -- 2 of 10 -- 010296 kaw (de Jersey J) As has been seen, the application for the lease made by the company was made within that period of three months. The issue is whether because Atidale, it may be assumed for the moment, was not entitled to apply for the grant of a lease under the provisions of the new Act, it might nevertheless rely on a prior "entitlement" within the terms of clause 17 subclause 1. For that entitlement, the company relies on an authorisation given to it on 28 May 1990 by letter by the owner of the land, Resort Development Pty Ltd, "to extract rock from this company's quarry at 17 Mile Road, Helidon.", the letter stating that it is to be read as, "full authorisation until formal agreements are drawn up and executed by the two companies". Formal agreements were drawn up, but it is not necessary to refer to those. On the face of it, that letter would give the company an entitlement to extract rock from the quarry. The Minister's counsel relies, however, on the absence of a concurrent licence from the Gatton Shire Council. The by-laws of that council in chapter 34 provided that, "A person shall not commence, nor carry on, nor cause to be carried on, nor be concerned in the carrying on of an extractive industry on land within the shire area without first obtaining a licence from the council so to do." The term "extractive industry" is defined to include the winning of rock. Now, when the company obtained this authority from the land owner it applied for the licence and paid the r2quisite fee, bu~, in fact, the licence was never 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 10 -- 010296 can (de Jersey J) granted, possibly, one infers, because things were overtaken by the new Mineral Resources Act. Mr Blaxland, who appeared today for the company, submitted that I should proceed on the basis that a licence was effectively granted, or the council stood by and permitted the extractive industry to continue even though a formal licence was not in existence, and that the point should therefore be seen not as having a continuing relevance to the issue whether there was "an entitlement" in terms of clause 17 subclause 1 of the Schedule to the Mineral Resources Act. The other view, which I prefer, is that the entitlement to which that subclause refers must be a lawful entitlement, and that, albeit a strict approach, there was no lawful entitlement because there was not in terms of the by-laws a licence in existence from the council. For that reason I conclude that the Minister was right in his third ground for refusing the application for lease, namely that prior to the commencement of the Act the company was not a holder of an entitlement as required by that clause. I might say that that ground was argued on the assumption that the letter of 28 May 1990 was before the Minister, although that was strictly not true at that time, but the Crown was content to have the ground argued with referepce to that letter. I should add that there is a distinction between the language of clause 17 subclause 1 as applicable at that time and the clausG in its original form when first enacted, as may be seen from the sessionnl volume of the St~tutes 1989 Part 2 4 JUDGMENT 10 20 30 40 50 60 -- 4 of 10 -- 010296 can (de Jersey J) at page 1,710 where the clause in that original form spoke of an entitlement to do things 11 under an Act". Those words were removed and Mr Blaxland quite rightly drew my attention to the broadening effect of that removal. Nevertheless, as I have indicated, I feel that the word "entitlement", despite its breadth, must be read as confined to a lawful entitlement and since that did not exist at the relevant time because of the lack of the local authority licence the applicant cannot rely on clause 17 subclause 1. The second ground of refusal argued before me was the first one stated by the Minister, and that is that the company "was not the holder of a prerequisi-ce tenure as r2quired by 7. l". The letter of refusal goes on to point out that, "prospecting permit number 50011 was held by Ronald Wayne Bombell who is not an applicant for mining lease number 50005." The lease was itself, of course, applied for by the applicant company on 29 November 1990. The prospecting permit to which the Minister refers in his letter of refusal was sought by Mr Bombell who was a director of the applicant company, apparently in his own name on the face of the application, which is dated 26 November 1990. The permit number 50011 was granted to him on 27 November 1990 and it states Mr Bombell as being the "holder" of the permit. The permit is, of course, in respect of the land the subjec~ of the application for lease. The relevant departmental officer seems to have led Mr Bombell into thinking that the company might rely on the permit granted in his individual name. In his affidavit 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 10 -- 010296 can (de Jersey J) filed on 17 July 1995 Mr Gambell says these things which were not the subject of any denial, "I told him that I was a director of all the companies involved ... he informed me that if I could prove that I was a common director of the companies, then the prospecting permit could be applied for in my name, and the mining lease could be in the name of Atidale ... Richard Smith told me ... that that documentation would be sufficient for the department's purposes." The matter becomes relevant in this way: section 7.1 subsection 1 of the Mineral Resources Act 1989 provides as relevant that, "A mining lease ... may be applied for by an eligible person in respec~ of contiguous land comprised in ... a prospecting permit ... of which the applicant ... is ... the holder." It is accepted that the company is an "eligible person" in terms of that section. The issue then is whether the applicant company was the "holder" of the prospecting permit in relation to that land. The company contends, through Mr Blaxland, that it should be taken to have been the holder, even though the prospecting permit was issued in the name of Mr Bombell and identified him as the holder in its terms. At the base of that submission, of course, is the contention that Mr Bombell was, in fact, acting as he saw it ~s agent for the company and that the department is to be taken as having accepted that. The term holder is defined in section 1.8 subsection 1 of the Mineral Resources Act as applicable at that time in relation to a prospecting permit as "meaning" the person in whose name ~he permit is issued: Now, as r·have said, on 6 JUDGMENT 10 20 30 40 50 60 -- 6 of 10 -- 010296 can (de Jersey J) the face of it this permit was issued in the name of Mr Bombell. Mr Hinson took me through a number of provisions of the Mineral Resources Act following that apparently clear definition which tend to reinforce the significance of the identification within the permit of the holder. Section 3.1, for example, says that a prospecting permit shall be, "issued in the name of one eligible person." Section 3.2 subsection 1 goes on to distinguish between permits held in the name of a natural person and permits held in the name of a company with relation to what might be done under them. Section 3.5 requires that an application for a prospecting permit "specify the narne ... of the applicant." Section 3.8 requires the mining registrar who issues a permit to specify in the permit "the name of the holder." Mr Hinson referred me to other provisions of the Act which provides for a slightly different position with relation to exploration permits, see section 5.8, and mineral development licences, see sections 6.1 and 6.4. There does, in short, seem to be a focus in the Act on the identification of the holder precisely on the face of the permit such as to warrant the conclusion that the specified person is indeed to be regarded as_ the holder. The residual question is whether, by resort to a general principle of the common law, I might, nevertheless, conclude that although Mr Bombell is specified with perfect clarity as being the holder in apparent accordanc2 0ith the 7 JUDGMENT 10 20 30 40 50 60 -- 7 of 10 -- 010296 can (de Jersey J) requirements and format of the Act, I might conclude that his company was, in truth, the real holder and, notwithstanding the terms of the Act, to be regarded as such. I cannot do that, especially because of the intractable language of section 1.8 subsection 1 of the Act which says that the holder of a prospecting permit "means" the person in whose name the permit is issued. I see no way around that language. It is unfortunate, of course, that Mr Bornbell was encouraged to proceed within the department on the other basis, but as I suggested to Mr Blaxland during argument if that gives rise to an estoppel it cannot be an estoppel operative against the lawful operation of the Act. The result of all of this is that in terms of section 7.1 subsection 1 of the Act since the applicant company is not the "holder" of the prospecting permit it was not within category of persons who might apply for a mining lease under that section. The Minister was, accordingly, right to conclude as he did that section 7.1 did not authorise the mining lease application which was made. Each of the two grounds to which I have referred necessitated the refusal of the mining lease application made by the company. There was in each case a lawful objection to that application, which, on my construction of the Act, as I have. said, necessitated its rejection. Mr Blaxland relied on other matters relating to the way in which the application was dealt with within the department, tracing the history of the application from.the time of its 8 JUDGMENT 10 20 30 40 50 60 -- 8 of 10 -- 010296 can (de Jersey J) initial recommondation by the mining warden through to its ultimate rejection, dwelling on the receipt by the department of submissions by the State Bank of New South Wales as mortgagee and others, raising the question whether his client was given an adequate opportunity to answer the points made against it, raising an issue indeed, as I read the material, whether there was not some shadowy further ground, in fact, prompting the rejection of the application which was communicated in January. I need not go into any of those matters and Mr Blaxland conceded that if I were against him on the two issues of law which I have canvassed in this judgment to this point, then those other issues of natural justice and the like, including reliance upon irrelevant considerations, cannot prevail on any view of the matter. It is unnecessary and unproductive, of course, in that context, that I go into those other matters, and I do not propose to do so. Have I sufficiently recorded your arguments? MR HINSON: I think so, Your Honour, yes. HIS HONOUR: Are you happy with what I have said? MR BLAXLAND: I think, Your Honour, once you found the Act had not been lawfully complied with you cannot have the Minister doing something which is unlawful. HIS HONOUR: But you are happy with the way I have expressed your argu1nents on the principal points oi law, that is really----- MR BLAXLAND: Except that you didn't accept them. 9 JUDGMENT 10 20 30 40 50 60 -- 9 of 10 -- 010296 can (de Jersey J) HIS HONOUR: It is a bit unfair to ask you, but I am doing it because I am doing it extempore. You are content with the way I expressed your arguments? MR BLAXLAND: Yes, Your Honour. HIS HONOUR: I therefore refuse the application. MR HINSON: I ask for costs. HIS HONOUR: In refusing the application I perhaps might be pardoned for repeating something I said during the argument. I have a degree of sympathy in this case for the applicant because of the suggestion that it was led along in the expectation of Mr Bombell's permit might be utilised by the company. The company is in a position now where it could apply for another permit and I suppose it could fall eventually to a mining warden to determine whether that should be granted or not, but the company is not ~ithout any right to proceed further in relation to this land. Whether or not it succeeds in gaining any rights over it is, of course, a matter for others, but I am pardoned for recording I really do feel a degree of sympathy for the applicant in the light of the way it was treated in relation to the prospecting permit, the relevance of the prospecting permit. HIS HONOUR: The appropriate order is no order as to costs. 10 JUDGMENT 10 20 30 40 50 60 -- 10 of 10 --