Century Zinc Ltd v Wadjularbinna [1995] QMW 32

IN THE WARDENS COURT AT MOUNT ISA IN THE STATE OF QUEENSLAND AND MLA 90045 IN THE MATTER OF THE APPLICATION FOR MINING LEASE 90045 BY CENTURY ZINC LIMITED IN THE MATTER OF AN OBJECTION LODGED BY WADJULARBINNA On 22 December 1993, GULF MINERALS AND I\IBT ALS LIMITED lodged an application under Section 7.1 of The Mineral Resources Act 1989 (the Act) for the grant of a Mining Lease at the office of the Registrar at Mount Isa.. On that date the Registrar issued a Certificate of Application under Section 7.18. That certificate required any objections to be lodged at the office of the Mining Registrar on or before 26th of January· 1994_ (Section 7.20(1). The objector is also required to serve a copy of that objection on the applicant on or before the last date that he may lodge an objection, in this case the 26th January 1994. The application is known as Mining Lease Application 90045. The applicant has since changed its name to Century Zinc Limited. [1995] QMW 32 -- 1 of 5 -- A number of other purported objections have been lodged but to date those objections, or the validity thereof, have not been determined. Several grounds objection have been withdrawn. Because of certain information brought to the attention of the Court by the Registrar Mr Little, 10th March 1995, it is possible to deal with the "objection" lodged by Wadjularbinna as set out hereunder. The requirements in relation to notices of objection are set out in Part 7 of the Act, and in particular are referred to in sections 7.20 (in general terms) and 7.21 (where an environmental impact study has been ordered by the Minister). Section 7.25 (2A) restricts the Court to matters contained in any notice of objection. In the proceedings conducted on 10 March 1995, the Registrar advised that an ./ objection has been received at his office on 4 February 1994. Mr Little tendered two declarations made by members of his staff in relation to checking of the post office box on the last date for the receipt of objections. Wadjularbinna was not present in court. I have since had an opportunity to consider the matter. There is no evidence from the applicant that the applicant was served with a copy of the objection within the prescribed time, and that point is not considered here. -- 2 of 5 -- The validity of and service of notices of objection were considered in Shannon and Ors v Gladstone Area Water Board - MLA 80013 (unreported) Wardens Court 8 May 1992. The point taken there related to the service of a copy of the objection on the applicant miner. Section 7.25 (2A) empowers the Court to consider only those grounds of objection that are "duly lodged". In other words, the jurisdiction of the court to deal with the objection is only enlivened when the objections are inter alia, lodged on or before the last date fixed for the receipt of objections pursuant to S7.18. Can the prescribed time limits be removed or extended in the discretion of the Court? When one reads the whole section dealing with objections, we find the provisions are statutory. They do not appear as regulations which set out directions as to the form and service of a notice of appeal etc, as appeared to be the case in O'Sullivan v Young 1972 QLR at P39. The delivery of the objection within the prescribed time in my view is a "condition of jurisdiction" of the Warden to entertain that particular objection. (see Cowper v Townsville Fire Brigade Board 1973 QLP 333 at p346. It was found by the Industrial Magistrate in Meredith v Workers Compensation Board of Queensland 1979 WCR at p.19 that failure to lodge within the prescribed time was fatal. The point of that exercise is that on appeal (101 Q.G.I.G. p.391) this was not disturbed by Matthews J, President of the Industrial Court. (see also Maxwell on Interpretation of Statutes 11 th Ed. 1962 at 364 and 367). There is no provision within Part 7, (this part dealing with applications for a mining lease) that allows the Court to exercise any discretion on this point. -- 3 of 5 -- Can it be argued that the provisions of S 11. 6 apply? That section provides that the Governor in Council, Minister, Director-General, Warden or Mining Registrar, upon being satisfied in any matter in which they may act if done in the prescribed manner and form that there has been substantial compliance with the prescribed manner and form of the Act, to record that fact in writing and thereupon act as if the thing had been done in the prescribed manner and form. Substantial compliance must be found, and that fact must be recorded. For substantial compliance to be found, there must be some compliance which goes beyond a token compliance. It cannot be argued in any case that if in a strict sense there has been no compliance with a statutory provision, there can be no substantial compliance. Each case must be decided on its own merits, and each case will turn on its own facts. While a "degree of compliance" may be a basis of consideration in numerous other matters, (Ridgewood Developments Pty Ltd v Brisbane City Council [1985] Qd R p.48 at p.52), I am of the view that it cannot apply to lodgement as the requirement for lodgement is strict and statutory. It was submitted in Shannon and Ors V G.A.W.B. (supra) that the objector could retreat to Section 10.24 and succeed by having the time enlarged under the provisions of the Magistrates Court Act or the Supreme Court rules. Section 10.24(3) provides that where this act is silent, the practice and procedure shall be as nearly as may be the practice and procedures adopted in the Magistrates Court exercising provision under that act, the Wardens Court shall adopt the practice and procedure of the Supreme Court. However, I do not consider that the Act is silent or deficient as to the giving of notices - of objection. There is specific provision for same. -- 4 of 5 -- I < I adjourn further hearing with respect to this matter to the Wardens Court, Mount Isa, at 2.00pm on 28th April 1995 and direct the Registrar Mount Isa to serve on the "objector''. _by pre-paid post a Notice to Show Cause why the objection should not be struck out. I further direct the Registrar to provide a copy of the relevant part of transcript of the 10th March 199 5 and a copy of the declarations tendered at that hearing. Such objector will then have the opportunity to appear and show cause. The applicant is entitled to a copy of such documents and is entitled to appear and be heard on the 28th April 1995 in relation to this objection. DATED at Brisbane this 31st day March 1995. r •. . \. M . ,·--~,c_; . ' • • le:- - I JD'ee : E LO . ~ f ACTING MINING WARDEN -- 5 of 5 --