Austex Mining NL & Ors v Caboolture Shire Council & Ors [1995] QMW 186

,,. ,., ,;- I ,i .I £ No\l ) IN THE WARDENS COURT OF QUEENSLAND HELD AT BRISBANE. BEFORE: IN THE MATTER OF: APPLICANT: OBJECTORS: RULING: F.W.WINDRIDGE. MINING WARDEN. MINING LEASE APPLICATION 50088. DETERMINATION OF VALIDITY OF OBJECTIONS. AUSTEX MINING N L IAN ANDREW HARRISON and HELEN CLAIRE GENERY. CABOOLTURE SHIRE COUNCIL and OTHERS. This application for a mining lease initially came before the Court on 1 September 1995. At that hearing I directed that Show Cause notices be issued in +espect of a number of "purported 11 objections received or brought to the Registrar's attention. As a result, a number of notices were forwarded to all "purported" objectors to appear and show cause on 22 September 1995 . • On 22 September 1995, the applicant appeared, and the following persons appeared in response to the notices issued by the Registrar: 1. Mr. S.M.Ure of Counsel, instructed by King and Company, solicitors, for the Council of the Shire of Caboolture. n --- '1~[1995] QMW 186 -- 1 of 26 -- 2. Mr. Alex Bond of the Gubbi Land Council Aboriginal Corporation. 3. Dr. Neil Draper. 4. Isabel Cooper. 5. Arthur George Sonter. Each person appearing made submissions and the counsel for the applicant responded to those submissions. I should record at this early stage that the initial Certificate of Application was issued on 17th day of June 1994 to Austex Mining NL. Last date for the close of objections was 15 July 1994. Since that date, the application has been assigned to HARRISON and GENERY. On 17 June 1994, the Registrar notified that the Minister into the environmental impact II of the lease application. On 16 March 1995, "has required a study grant of the mining the Registrar notified that the study had been received and was open for inspection at the office of the Mining Registrar. The date for the close of objections was extended to 19 May 1995, i.e. a period of two months was allowed for study of the Report and lodgment of -- 2 of 26 -- objections. This Notice of Receipt of Environmental Impact Study is advertised by the applicant at the direction of the Registrar. This notice states in part: "TAKE NOTICE that an eligible person, Local Authority or owner of land may lodge on or before the 19th day of May 1995 with the Mining Registrar an objection to the grant of this Mining Lease Application in writing in the prescribed form." There are a number of unpublished rulings in relation to what I will refer to generally as Notices of Objection. This does put practitioners and others who seek appearance in this Court to a disadvantage. Unfortunately, with the current work load and lack of resources, there is no possibility of documenting or publishing rulings and recommendations in the near to mid term future. Although the Act has been amended and reprinted, with a new style of re-numbered sections, all references will be to the numbered sections as they appear prior to the re-print. Section 7.20 of the Act (now amended and re-numbered as section 2 6 O) deals with Notices of Objection in respect of mining lease applications. Notices of Objection must: -- 3 of 26 -- (a) be lodged by an entity (b) be lodged on or before the last date fixed for the receipt of objections (c) be in writing in the approved form (d) state the grounds of circumstances relied on those grounds objection and the by the objector in facts and support of (e) be served on the applicant on or before the last date that the objector may lodge an objection -- 4 of 26 -- It follows from (e) that the copy served on the applicant is a copy of the objection lodged with the Registrar. Section 7(20) (2) (b) (now 268(4) states: The Wardens Court shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application. In my opinion, 11 duly lodged 11 means lodged in accordance with the provisions of the Act. The provisions are mandatory and they are specific. They are not facilitative regulations, for the simple reason that the consequences that can flow to the applicant can be severe. They are specific in order to cure the situation where non specific 11 letters 11 are sent to the Registrar as 11 objections 11 , often leaving the applicant in doubt as to what is the objection and what grounds of objection he is required to call evidence in rebuttal. Hence, the words 11 ground 11 and "facts and circumstances 11 appear to define the issues. There is no discretion in the Court to excuse non compliance. There is either compliance or there is non compliance in respect of Part 7. Substantial compliance is not an issue in relation to part 7 matters as the consequences which flow can -- 5 of 26 -- be severe. Where his interests may be severely affected, the applicant has the right to insist on strict compliance. There is a complicating factor in this matter. The parties are before the Planning and Environment Court in relation to that part of the operations of the applicant that I will call the II extractive industry licence 11 • The Mining Lease Application is in respect of that small and final part of extraction of fine sand which when treated and separated from other sand can be used as foundry sand. Foundry sand is defined as a mineral (Section 1.8, now section 5) and thus a mining lease is required for extraction. The "objectors" before this Court appeared (possibly with others) in the Planning and Environment Court to resist the appeal against the refusal of the Caboolture Shire Council to grant the application for an extractive industry licence (as I understand the situation) It appears that the objectors basically rely on the same "objections'' for both proceedings. I understand that the hearing of that appeal has been completed and the parties await a reserved decision. As that appeal is in relation to another matter, there is no hindrance or protocol imposed on this Court to await the outcome of that appeal. I turn now to the individual objections. submissions both for himself and the As Dr. Draper made Gubi Land Council -- 6 of 26 -- Aboriginal Corporation, (Gubi), I will group those objections together. It appears from the submission of Dr. Draper that in relation to his own objection and the Gubi objection, letters were forwarded to the Minister for Minerals and Energy. On receipt of some advice, Dr. Draper then obtained the prescribed forms but as time to lodge was about to expire, sent the forms by facsimile transmission to the Registrar and the applicants off ice, indicating that the original documents were in the mail. He concedes that the documents would not be received by the parties to whom they were addressed by the close of business on the last date for the receipt of objections. M/ s Cooper made a submission to the effect that at no stage was she made aware of the need to serve the objection on the applicant. The form of objection had been obtained from a community association and she was merely told to lodge it with the Registrar. Mr. Sonter submitted that he also was not made aware that it was a requirement to serve a copy of the Notice of Objection on the applicant, but he would still like to go ahead with the objection. Mr. Sonter lives in the Blue Mountains N.S.W. and did not see anything published in local papers, which is understandable. However, it is not a requirement to publish the notice in every paper or even national papers. -- 7 of 26 -- Counsel for the Caboolture Shire Council submitted that their objection was within time and the manner of service i.e. by facsimile was service permitted by the Acts Interpretation Act - Section 39. Mr. Ure further indicated that the applicant was accepting that the applicant had been served. With respect, one party to a proceeding cannot waive a statutory requirement. They may waive their own rights in certain circumstances, but not a statutory requirement. Counsel for the applicant responded on a number of points. The first was that no facsimile message had been received by the applicant from Dr. Draper, and secondly that any written notice of objection sent or posted by him could not have been received by the applicant prior to the close of objections. In fact such notice had been received three days after the close of objections. M/s Cooper and Mr. Sonter had not served the applicant at all. In looking at service by facsimile, Counsel for the applicant urged the Court to look at the provisions of Section 11. 14 as "indicating the general tone and application of the act because there is a specific provision relating to it". The provisions of Part 7 of the Mineral Resources Act 1989 deals with mining leases. That part also deals with notices of objection to mining lease applications. Section 7.20, (now section 260) of the The provisions of act set out the requirements for any entity to object to the grant of a mining lease. By no means could it be said that those provisions are not specific. The Registrar sets a specific date for the -- 8 of 26 -- receipt of objections. There is no discretion to extend the date either by the Registrar or this Court. The act states that the objection must be in the II approved II form ( formerly the "prescribed" form) . The act states at section 7. 20 (4) (now section 260(4): "each objector to an application for the grant of a mining lease shall serve upon the applicant on or before the last date that the objector may lodge an objection to that application a copy of the objection lodged by the objector". The mandatory requirement is contained in the words "shall serve". One might ask "how is a potential objector alerted to the provisions in relation to these matters 11 ? Firstly, there are the provisions of the act. Secondly, there is the Certificate of Application (C.0.A.) posted on the land. Thirdly, the C. 0. A. is advertised in a newspaper circulating in the relevant mining district. Fourthly, each land owner to which the application relates, including acc e ss land, is served with a copy of the application and the C. 0 .A, and fifthly, the relevant local authority is served in its own right. It appears that all this was done. -- 9 of 26 -- But in addition to the above, we have an extra step in this particular application. By a notice dated 17 June 1994, the Minister for Minerals and Energy ordered an Environmental Impact Study be conducted in relation to this application. By a notice dated 16 March 1995, the Registrar notified through an advertisement filed by the applicant that the E. I. S. was available for inspection. That notice gave a further two months for objections to be lodged. One has to take the view that any person who wanted to file an objection was on notice from the date of issue of the original C.O.A. on 17 June 1994 to close of objections on 19th May 1995, a period of some 11 months. Inexplicably, (and in common with a number of other matters) we have all the potential objectors waiting until the last day or second last day before there is any attempt to protect their rights and lodge an objection. Obviously, as in this case, there is then insufficient time to amend or correct any defect before the close of objections. This situation is brought about by no fault or action on the part of the applicant. I turn now to the meaning and weight to be placed on the words "lodge" and "serve". Lodge is not defined in the act. However, in the normal sense that it is used in this particular section, I am of the -- 10 of 26 -- opinion a document or notice can be "lodged" if it is left in the place described or left with a person in that place. "Lodge with the Mining Registrar" means to leave with him or leave at his office any notice or form. It need not be served on him in the legal sense. It should be noted that the approved form provides for the time and date of lodgment to be endorsed on the notice and signed by the Registrar. This re- enforces to some extent the need to lodge the approved form as the receipt on or before the last date for receipt of objections is critical to the validity of the objection. So while the Registrar accepts a notice as lodgment only, the applicant must be served with a copy of the notice lodged with the Registrar. In a technical sense, the original notice is lodged with the Registrar, and a copy of that original notice of objection is required by the act to be served on the applicant before the close of objections. "Serve" is not defined in the act. A careful reading of section 11. 14 indicates that section has application only to particular instances (see subsections 1 and 2). Service outside those particular instances must be in accordance with the provisions of the Mineral Resources Act. Where the Mineral Resources Act is silent, section 10.24(3) (now section 367) is applicable. Section 10.24(3) provides: Where in relation to any matter of practice and procedure -- 11 of 26 -- this Act is silent or does not prescribe sufficiently, such practice and procedure shall be, as nearly as may be, in accordance with the practice and procedure of Magistrates Courts exercising jurisdiction under the Magistrates Courts Act 1921 the provisions of which Act and the rules made thereunder shall in such case apply, with all necessary adaptions, with respect to proceedings before a Wardens Court and where in relation to any matter of practice or procedure that Act and those rules make no provision or inadequate provision the practice and procedure of a Wardens Court shall be, as nearly as may be, the practice and procedure of the Supreme Court. While section 11.14 (now 399) is specific, section 7. 20 (now 260) refers only to "serve upon the applicant ....... a copy of the objection lodged by the objector" . The means of service being silent, one turns to section 10. 24 and Part 6 of the Magistrates Court Rules. Although Part 6 provides for service in a number of circumstances and prescribes the manner of service, at no time does it allow, condone or authorise service by facsimile means. The fact that the applicant disputes receipt of any notice by facsimile (Mr. Clutterbuck - pp 8/9 T/S 22/9/95) underscores the reason why facsimile service should be rejected. -- 12 of 26 -- I turn now to Section 39(1) of the Acts Interpretation Act. Mr. Ure of counsel relies of the provisions of section 39(1) (a) (ii) for the manner of service and the definitions in subsection (2) of section 39. Section 39 has been raised in submissions a number of times and as recently as 3 o October 1995 in the matter of Clark V Redland Shire Council and others (MLA 50113 Wardens Court Brisbane). I consider assistance can be gained from subsection ( 3) of section 39 which states: Nothing in subsection (1)- (a) affects the operation of another law that authorises the service of a document otherwise than as provided in the subsection; or (b) affects the power of a court or tribunal to authorise service of a document otherwise than as provided in the subsection. I am of the opinion that the Mineral Resources Act 1989 is not silent in relation to service as required in certain circumstances (section 11.14, now 399), and where the act is silent or 11.14 is deficient, the Magistrates Court Act and Rules apply. Service by facsimile is therefore not permitted and is -- 13 of 26 -- invalid. There have been submissions in other applications hearings in relation to the form of the letter as against the prescribed or approved form. Section 49(1) of the Acts Interpretation Act states: If a form is prescribed or approved under an Act, strict compliance with the form is not necessary and substantial compliance is sufficient. Subsection (2) provides: "If a form prescribed or approved under an Act requires- (a) the form to be completed in a specified way; or (b) . specified information or documents to be included in, attached to or given with the form; or (c) the form, or information or documents included in, attached to or given with the form, to be verified in a specified way; the form is not properly completed unless the requirement is complied with". The approved form is one to be completed in a specified way and it is one that requires specified information. Therefore section 49(1) does not apply and substantial compliance is not an issue. -- 14 of 26 -- In mining lease application 50074, a letter of objection (ROUSE) was allowed to stand as an objection because the letter was written in the format of the form of objection. Any objection not on or in the approved form is therefore not in compliance with the act and is invalid. The Wardens Court is a Court of unique and specialised jurisdiction. It has a range of jurisdiction ranging from injunctions, specific performance and equitable remedies to review of a number of decisions by Registrars, i.e. an appellate jurisdiction. The court is created by legislation, but has a range of jurisdiction in some matters not exercised in any other jurisdiction. The expertise of the court is well recognised. (Carr V Simnovec (1980) 26 SASR 263 at 268, and Pacminex V Aust. Nephrite Jade Mines (1974) 7 SASR 401 at 415.) The court has been called to rule on the validity of a number of objections in the recent past and will be required to do so again in the near future. Repetitive rulings on the same issue are not in the long term interests of the mining industry and in fact are a considerable drain on the courts limited resources. So where is the problem, and how is it to be rectified. From my experience of concurrent matters and other rulings, I consider the . source of the problem is the Certificate of -- 15 of 26 -- Application. What may have been appropriate years ago is now not appropriate as the complexity of mining, including the environmental and social impacts, have changed considerably in recent times. There are three distinct stakeholders, and it is necessary to briefly examine the effect of the issue of a COA on those stakeholders. 1. The Department of Minerals and Energy. The Registrar, upon satisfying himself about certain matters, issues the Certificate of Application, usually accompanied by a letter fully explaining matters to which the applicant should direct his attention. 2. The potential objector. The potential objector, if he/ she sights the advertisement, accepts the COA at face value and attempts to lodge an objection. 3. The applicant. Usually, by this stage, the applicant has expended a considerable amount of time, exploration, and costs to reach this stage. He therefore has a considerable investment to protect. The applicant is brought into the legal process on two fronts - firstly he has to progress the application through section 7. 26 (now 269) of the Act; and secondly, he is required to call such evidence -- 16 of 26 -- as he can to rebut any objection duly lodged. The applicant is well within his rights to ask the Court to strike out any objection that is not duly lodged. To protect the right of any objector to file an objection and be heard, I consider that it is essential that the approved form be amended to advise those potential objectors who desire to object of the requirements of the Act, and that failure to comply can result in the objection being struck out. The COA is a critical document in the application process. It authorises the applicant to proceed, and it gives the opportunity for all those persons who may wish to object the means of doing so. It must be a 11 non-complicated 11 document which allows miners at all levels to understand the process. It must also do the same for potential objectors, giving all the necessary information. The same must be said for the notice of objection. It was not born last night. It has evolved over a number of years and is designed to specifically cure the problem for miners and objectors alike as to what is a ground of objection and what are the facts and circumstances to support that grounds. Application 50100 (Idemitsu South Queensland Coal Pty Ltd V Ipswich City Council and Ors) is a case in point. In that matter (yet to be finalised) even valid notices of objection are creating problems of identifying what is a fact and what is opinion or emotion. -- 17 of 26 -- Therefore both the COA and the notice specifically applicable only to Part 7 Part 4 (mining claims). of objection (mining leases) are and There is sufficient room on page two of the COA to insert all relevant information, if not as part of the approved form, then as notes for assistance provided by the Registrar. For the general guidance of Registrars and potential objectors, the following matters may be regarded as a Practice Direction until the form of the COA is amended or adjusted. 1. The COA must indicate that objections must be in or on the prescribed form. 2. The COA must indicate that the prescribed form can be obtained from the Registrars office. 3. The COA must indicate that the notice of objection must be posted to reach the off ice of the Registrar on or before the date of close of objections, or handed in at the office of the Registrar by the objector or his solicitor or agent on or before that date. 3. The COA must indicate that a copy of the notice of objection sent or served on the Registrar must be served on the applicant at the address shown on the COA on or before the last date for the receipt of objections. -- 18 of 26 -- 4. The address shown on the COA for service must be a location and not a post office address. 5. Service on the applicant must be in person, or posted in the normal manner to reach the applicant on or before the last date for objection. 6. If the applicant is a company, service must be on a person at the registered office of the company, or on the legal representative of the applicant at the registered office of the legal representative who is authorised to accept service, or on the authorised agent at his address. 7. For service on the Registrar, the COA must disclose the location of the Registrars office and normal business hours that the office is open to accept service. 8. The COA should contain advice that service by facsimile is not permitted and not accepted. 9. The approved form should contain advice that no ground of objection or facts and circumstances to prove that or any other ground can be added after the close of objections. 10. The COA must be issued on plain paper and not headed departmental paper. -- 19 of 26 -- Finally, it is necessary to touch on some other related matters which the parties may wish to consider. I am aware that any ruling, recommendation or order for costs in relation to an application under Part 7 of the Act is not subject to any appeal (see Part 10 - Section 10.40(6). It should also be noted that in RV Mining Warden; ex Parte: Midcoast Lands (1979) Qd R p.427, Sheahan Jon behalf of the Full Court said at p. 429 ·- "It is clear that the Wardens recommendation does not bind anyone. It is not disputed that in dealing with applications for mining leases and objections thereto the Warden is acting in a Ministerial capacity". and at P. 432:- II the Warden is not sitting as a Court of Record: even if by virtue of Regulation 163, he is so sitting his findings bind on one, he gives no judgment and makes no order with respect to the substantive matters before him. His duty is to recommend the granting or rejecting of the application before him." It is highly probable, although I understand the matter has not been fully argued to date, that Judicial Review is not available in Part 7 proceedings. The Warden is acting in a -- 20 of 26 -- Ministerial capacity. In Ex Parte : Mills ; Re: Mills (1881) QLJ p.l, LlLLEY CJ (with whom Harding J and Pring J concurred) said at p.3:- "To my mind the regulation does not confer any discretion upon the Warden, and that with respect to the recording and reporting upon the application, it does not charge him with any judicial duty. They are simply Ministerial duties. He might report what he liked". In the matter of any application under Part 7, the Warden is therefore acting Ministerially and is not deciding the issue between the parties. He makes no final decision that binds the parties. A recommendation is not a decison that binds the parties. An inquiry by E.A.R.C into the jurisdiction and function of the Wardens Court found ( inter alia) that the court was a specialised jurisdiction, efficient, economical and accessible to all parties. Access to the Court for potential objectors is through the Notice of Objection. If access is being denied or hamstrung because of the complications of litigation that now arise with the act of an application for a Mining Lease, then the matter needs some attention to preserve the rights of any person to lodge an objection. The lodgment of a Notice of Objection brings the objector into the legal process. It is akin to the lodgement of a Notice of Entry of Appearance and Notice of Defence as per Supreme Court -- 21 of 26 -- practice. It imposes on the objector certain obligations and responsibilities, i.e. to appear and call such evidence as it can to substantiate the objection. It places on the applicant the duty of rebuttal i.e. calling such evidence to displace or remove the ground of objection. Many objectors do not have the resources to prepare for a lengthy or costly application hearing. The lodgment of a valid notice of objection is the act which enlivens the Wardens jurisdiction to deal with the matter. Section 7. 25 (2) (b) specifically prohibits consideration of any evidence (which would include questions put in cross- examination) not contained in an objection that has not been duly lodged. If the objection is not valid, the Warden has no power to consider such an objection. It follows then that the Warden having no power to examine or consider an invalid objection, the applicant has no duty to rebut such invalid objection. It is inconsistent therefore that an invalid objection be forwarded to the Minister for his consideration under section 7.26. I am of the opinion that any objection referred to under Section 7.26 must be a valid objection. It is against the principles of natural justice if the attention of the Minister is drawn to an objection that is invalid, or has been ruled invalid and struck out by the Court if the applicant has not been allowed the right to call rebuttal evidence. I do not consider that it was ever the intention of the legislation that invalid objections would be considered, otherwise the whole intent and purpose of the -- 22 of 26 -- relevant section of therefore decline to the legislation is follow the ruling rendered advanced void. I by Warden Boulder Killeen 15/3/89 Wardens Court Bowen Great Holdings - unreported). There has been some suggestion that in a number of matters, objectors , both valid and invalid, and other parties in some cases, attempt to petition or make submissions to the Minister in relation to a matter that is before the Court. Any attempt to circumvent the legal process in this fashion when the matter is before the Court may have surprising consequences for both the party involved and the Minister if there is an inappropriate response. Peko-Wallsend Ltd. ALJ See Minister for Aboriginal Affairs V 1986 Vol 60 p.560 before Gibbs CJ, Mason, Brennan, Deane and Dawson JJ Canberra 29.11.1985 and 31 July 1986 where at page 573 Brennan J commented: II Where a matter submitted to an open inquiry involves a conflict between the interests of parties and the decision is apt to affect some parties advantageously and to affect others detrimentally, an ex parte communication between one party and the decision maker offends the requirements of natural justice: it deprives the opposing party of an opportunity to be heard on a matter affecting his interests and the integrity of the administrative process is eroded by partiality on the part of the decision maker. If the fact of the communication is at first kept secret and later becomes known, there is an inevitable appearance of bias in the decision-maker. The -- 23 of 26 -- general rule, founded firmly on the requirements of natural justice, is that information furnished by an ex parte communication must not be taken into account without giving the parties whose interests might be affected by the information an opportunity to correct or contradict it". Section 7. 25 (1) specifically brings the notice of objection into the court process "to be heard, considered or determined by the Wardens Court in respect of that application .... " The court does not have the power to consider any matter not contained in a valid objection, section 7. 25 (2) (b) . Any attempt to get further or invalid objections in for consideration by the Minister through the "back door" will be strongly resisted as it undermines the whole process. This point was touched upon in MLA 50074 (Aberdare Colliers V Player & Ors) at p.3 of the recommendation handed down on the 9th February 1995:- " ...... the contents of any letter does not replace legislation, and the ruling stands". Therefore any submission based on Ministerial correspondence will be disregarded. It is possible that a two tier level of objection is required. -- 24 of 26 -- ' I suggest that the first, and highest level, should be an entry of appearance and Notice of Objection to the grant of the application. This objector is engaged in the full judicial process and will attend the hearing, present evidence, call experts, and generally indicate that the grounds of objection will be substantiated. The second or lower level may be a petition or submission to the Court for consideration by the Warden, but one in which the party will not attend court as a litigant and will not call evidence in support of the grounds of objection. This will allow the applicant to respond in like fashion or by affidavit, but not be put to the proof or be required to call rebuttal evidence. In that way an "entity" with no or little resources can let its feelings be known on any particular application, but not put the applicant to rebuttal evidence which may or may not involve an order for costs. Apart from these suggestions, the matter of amendment of legislation or approved forms is outside my jurisdiction. I can only suggest to the parties and the Registrars that they may take the suggestions further in any manner they see fit. In respect of those objectors who failed to appear on 22 September 1995 and show cause, those objections are formally struck out. -- 25 of 26 -- It follows from what I have said above, the remaining objections of the Shire of Caboolture, the Gubi Land Council Aboriginal Corporation, Dr. N. Draper, M/s I Cooper and Mr. A.G.Sonter are struck out. The Registrar of the Brisbane Mining District is directed to publish this ruling as soon as reasonably practicable. Where the parties are unable to call at the Registry, a copy of the ruling is to be forwarded to that party by normal postal means. The application is adjourned to a date to be fixed for handing down of a reserved recommendation. Costs are reserved and all parties are granted liberty to apply upon the giving of seven days notice. Dated at Brisbane this 6th day of November 1995. F.W.WINDRIDGE. MINING WARDEN. -- 26 of 26 --