Arco Coal Australia Inc & Ors v United Plantations (Australia) Pty Ltd [1995] QMW 51

IN THE WARDENS COURT AT BRISBANE IN THE STATE OF QlJEENSLAl'-1D MLA No 70110 (EMERALD) BETWEEN: AND: ARCO COAL AUSTRALIA INC. ARCO RESOlJRCE.._4-, LTD, MITSUI GORDONSTONE INVESTMENT PTY LTD, MLC COAL INVESTMENT PTY LTD Applicants UNITED PJ~ANTATIONS (AUSTRALIA) PTY LTD Objector Mr Douglas QC (for the Objector) hao; sought an adjournment of Mining Leac;c Application 70110 cm the grounds that the Supreme Coun is now seized of jurisdiction with respect to certain matters set out in Supreme Court Writ 692 of 1995 and the Statement of Claim delivered 26th day of April 1995. The application is opposed. Both Applicants and Objector have made on1l and written submissions. The Stat.ement. of Claim of the Objector raises three separnte sets of issues:- A No Mining Lease may be validly granted to the Applicants because in truth the surface of lhe land the subject of the Application will inevitably he required, and further. by reason of subsidence and an interpretation of Section 7.30 of the Mineral Resources Act 1989 (Q!d) ("Act"); B The Applicants have assert~, according 10 the Objector, that the Objector is either not entitled to any compensation under the AL1, or alternatively, deny that the Objector is entitled to compensation prior to the occurrence of actual j. [1995] QMW 51 -- 1 of 7 -- subsidence; C If a lease is granted subsidence will take place causing withdrawal of suppor1 to the Objector's land contrary to - . (i) the Ohjector's right to :-;upport under the general law; and (ii) the Objector's righ1 to support pur.-uant to Section 179 of the Pmpc:ru,, Law A~t 1974. In circumstances where the Objector has no entitlement to compensation under the Act, Section J "J .30 of the Act provides that save in respect: of compensation payable under the Act. the provisions of the Act do not affC\:t any right had by the Objector independently of the Act to recover damage:; or obtain any other remedy in respect of dar:nages (subsidenGe) or injuries suffered by the Plaintiff by reason of mining. It is true that there is no rule that in circumstances where the same or similar issues are pending in a superior court, this Court must stay its hand or altcrnotively adjourn proceedings before it to permit the determination of superior court proceedings. Authority fot that proposition is adequately set out in Boyd v. Halstead (1985) 2 Qd R 249. This wm; referred to by Thomas J with approval in R v. Windridge Ex Partc: Pacific Coal Pty Ltd (1992) 2 Qd R 180 at 194. At p.252 of ~ (supra} McPher.mn J said:- "It h;, of course, plajn chat, if the question whether or not r.o proceed is a matter for the consideration and discretion of the inferior cour1, ii cannot be said that the pendency of proceedings in a superior court involvir1g the same issue or issues i~ a matter that goes to the jurisdiction of the inferior courL" Further, McPhen;on J referred to a number of cases and at p.256 concluded by stating:- -- 2 of 7 -- J "It is quite inconsistent with the principle adopted in those cases thui there should be a rule that the mere institution in this Coun of proceedir1gs involving the same issue as arise in proceedings properly brought in an inferior court, should prevent the · latter from determining those proceedings unless the circumstances arc exceptional." This sentiment wus further expressed by Thormt!i J in R v. Windrid~e Ex .. Parle: Pacific Coal Pty Ltd (supra) at p.195, in the following terms:- "It would se.em that Court's have been generally reluctant le) gr,mt injunctions to restrain a party from exercising his rights (by way of Applicants, Objector or otherwise) in Tribunals which are entrusted with determining applications that are to be determined with regard to the public interest ... " There are a number of matter.. which I consider are material to the question of whether or not the.se proceedings should be adjourned: - 1. Supreme Court Writ 692 of 1995 did not issue until the second day of the Applicants' case and only after costs had already been incurred in preparation and actual Hearing. 2. There has been no challenge to my striking out of Objection No 6 on 28th March 1995. 3. Neither has there been any challenge tu my dismissal of the Objecto,-'s Application for discovery on 28th March 1995. 4. The Wardens Court i~ a statutory jurisdiction with obje.ctives as st~t out m Section 1.3 of the! Act. 5. Section 10.20 of the Act invests this Court with an extremely wide jurisdiction to hear and detennine all actions, suits and proceedings arfaing in relation to mining or any mining tent!mcnt. Further, the jurisdiction of this Coun: includes a jurisdic.:tion to take cognisance of and detern1i.ne all claims anu interest arising in uny proceeding before it, both legal and equitable, and in -- 3 of 7 -- 4 the exercise of i1s jurisdiction this Court shall have power to grnnt equitable remedies. 6. • With respect to Applications for a Mining Lease, th<.? Wardens Coun is sir.ring in an administrative capacity. At the end of the day. I am required to make a recommendation only. (see also Section 7.25(2) of the Act). 7. The hearing of such an Application is a matter within the Warden's exclusive jurisdiction. 8. On the hearing of any Application for grant of a Mining Lease, this Court ~hall take into account and consider those matters set our in Section 7.26(3) of the Act which includes any prejudice to the public right and interest. A,; to the matters referred to in the Statement of Claim, I make the following observations:- Issue A Whether or not the Applicants in truth require the surface of the land ar. any time in the future is a matter of evidence. The Applicants have asserted !hat they do not require any surface area. If the Objector has any evidence to l11e contrary. this is the forum to ventilate such evidence. If by virtue of the foregoing, anc.1 by rci¼son of the matters alleged in paragraphs 7. 8 and 9 of the Statement of Claim, any question of interpretation arises with respect to Section 7.30 of the Ac,i - then this is the proper forum for such interpretation to be made. I must say that paragraph l 2(b) of the Statement of Claim where it reads, " ... for which the ~ Mining Lease is to be granted", seems quite unhelpful to the Objector's argument. {my underlining) -- 4 of 7 -- 5 Issue B The question of compensation does not arise at this point. Compensation is exclusively determinable by this Court pursuant to Section 7.38 of the Act upon application. The Objector seems to be assening tliat the Applicants deny the Objector's entitlement to compensation, or alternatively, deny the Objector is entitled to compensation prior to the occurrence of actual suhsidence on the Objector's land. During submissions on 27th day of February I 995, I note thai Mr Ambrose (for the Applicants) said, "the likely effect of subsidence following long-wall mining i!:> more than likely going to e.nliven 7.37 and the compensation procedure which applies there" - (page 58 of transcript.). It is a matter of indifference to this Court whether or not the assertion made hy the Objector referred to above was rnadc and if it was has been diluted. reinforced or revoked. The Court will exercise its statutory jurisdiction at the appropriate time. J find it extraordinary that t.he Objector put so much weight and .significance on this a'5sertion with respect to compensation. Issue C With respect t.o that assertion and The Objector's right to .support under the general law and pursuant to Section 179 of the Proper{y Law Act 1974, I can but only refor the Objector to the provisions of Section 5 of the Pmpcrry La111 Acr which relevantly provides:• "5. (1) This Act shaJl - -- 5 of 7 -- (iv) :,ubject lo the prov1:-qons of the M[neral lh·so,m.:es 1kt apply to leases, and any other rights in or in respect o( land granted, created or ta.king effect under that Act. " The Act provides a regime for the granting of mirling leases cind the paymeJll of compensation with respect to "land". "Land" includes, inter ali.i, "seabed and subsoil lo which this Act applies". The definition is inclusory. (sec Section 1.8 of the Act) I would have thought there would be grave difficulty in an Objector asserting that, notwithstanding the provisions of Section 5 of the 1-'rope,y Law Act referred w above, an Object.or is entitled to claim the benefit of a different regime orher tlmn that provided in the Act. (see also ;:mnotations to Section 5 Propenv Lμw and Procedure Duncan & Vann - Para 1. 710) The Objector repudiates any assertion that one of the purposes of the Supreme Court action wa.:; to obtain discovery, on the basis tJlnt it. "was not. a submis~ion made by the Objector". At page 145 of the transcript Mr Douglas QC said:- 11 Your Worship it would be fruitless to go on with this Hearing in circumstances where it has actually bee.n commenced we would have then the benefit of Discovery. To see what really is going on behind t.hc scenes ar. the Applicants. We haven't got that benefit here.'' And at page 155 of the Tran!>cript:- 11 In other words these people can't mine. they can't mine underground when the effect is lo take away our support and endeavour to inkrfore with tJ1e surface area. That's the point to be decided by the Supreme Court. While we sought to have it c.lecided here .. with respect. Now we're criticis,'.d in open c..-oun. We did seek to deal with il here . It was objected to. And -- 6 of 7 -- 7 successfully. And with greatest respect that. question has ro be decided by someone now we would have preferred it to have been you and we objected that way now it must be decided by the Supreme Court.. For that 1·cason it would be perilous to have you deciding issues of fact which might impinge upon that issue which the Supreme Court is called upun to decide the same issue on what could be different mate.rial and bearing ir1 mind Discovery will be heard in the Supreme Court action not here." The Objector has rnadt! it plain from the outset that. it com;iders Discovery essential to its objection. (see page 66 of Transcript 27th February 1995). However, the dismissal (')f that Application was never challenged. It seems to rne, in all probability, the Object.ors are using the Supreme Court proceedings to accomplish an objective that did not succeed in this Court. I have considered the parties oral and written submissions. In my view, the arguments advanced in favour of the Applicant,; for adjournment are not exceptional. They are far from exceptional. If anything, with ihe greatc,q of rcspecz, they are adventurous. In the exercise of my discretion the Application for adjournment of Mining Lease Application No 70110 by the Objector pending the resolution of what is said to be primarily legal questions in the Supreme Court, is dismissed. The Application shall proceed. I will hear submissions on costs. DATED at Brisbane this 4th day of May. 1995. ~ J D COSTELLQ ___.--/ Acting Mir1jng WanJc~ , -- 7 of 7 --