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Wright v Minister for Employment, Skills and Mining for the State of Queensland

 

[2013] QCA 141

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Wright & Anor v Minister for Employment, Skills and Mining for the State of Queensland & Ors [2013] QCA 141

PARTIES:

TERESA MONICA WRIGHT
(first appellant)
HELEN ENID JENNIFER BRIGHT
(second appellant)
v
THE MINISTER FOR EMPLOYMENT, SKILLS AND MINING FOR THE STATE OF QUEENSLAND
(first respondent)
ZEDEMAR HOLDINGS PTY LTD
ACN 105 008 026
(second respondent)
OGL RESOURCES LIMITED
ARBN 007 509 319
(third respondent)

FILE NO/S:

Appeal No 4844 of 2012

SC No 11768 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 May 2013

DELIVERED AT:

Brisbane 

HEARING DATE:

12 September 2012

JUDGES:

White JA and Fryberg and McMeekin JJ

Separate reasons for judgment of each member of the Court, White JA and McMeekin J concurring as to the orders made, Fryberg J dissenting

ORDER:

  1. The appeal be dismissed.
  2. The application for leave to appeal the order for costs made below be refused.
  3. The appellants pay the first respondent’s costs of the appeal.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICAL REVIEW – GENERALLY – where Minister reported to Governor in Council that he was satisfied with each of matters in s 286A(1) of the Mineral Resources Act 1989 (Qld) (Reprint 12E) and recommended renewal of mining lease – where Governor in Council made decision to renew lease – where applicants unsuccessfully sought judicial review of Minister’s, and Governor in Council’s, decisions – where Minister had to be satisfied that lease holder had complied with terms of lease, including condition “that the holder shall use the land comprised in the mining lease bona fide for the purposes for which the mining lease was granted” – whether failure of lease holder to carry on mining of lease constituted breach – whether open to Minister to be satisfied of matters in s 286A(1) despite any breach – whether decisions of Minister and Governor in Council perverse or Wednesbury unreasonable

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – COSTS – where primary judge ordered appellants to pay first respondents costs of and incidental to application – where appellants seek leave to appeal this costs order – whether primary judge erred in law in making order for costs against appellants – whether primary judge’s discretion miscarried – whether, pursuant to s 49(2)(b), proceedings involve matter of public interest – whether primary judge fettered his discretion

Judicial Review Act 1991 (Qld), s 23(g), s 49, s 49(1)(d), s 49(2), s 49(2)(b), s 49(2)(d), s 49(4), s 49(5)

Mineral Resources Act 1989 (Qld) (Reprint 1), s 1.5, s 1.7, s 1.11, s 7.1, s 7.2, s 7.4, s 7.4(1), s 7.4(1)(a), s 7.4(1)(a)(i), s 7.4(1)(a)(ii), s 7.4(1)(b), s 7.6, Sch 1, Sch 2, Sch 2 cl 3(1)(a), Sch 2 cl 3(1A), Sch 2 cl 3(1)(b)

Mineral Resources Act 1989 (Qld) (Reprint 12E), s 2(e), s 3, s 3(1), s 3(1)(a), s 3(1)(a)(i), s 3(1)(b), s 6A, s 6A(a), s 6A(b), s 6A(c), s 10, s 232(2), s 234, s 234(1), s 234(1)(a), s 234(1)(b), s 235, s 235(1), s 236(1), s 248(2)(b), s 249(2)(b), s 276(1)(a), s 276(1)(b), s 286A, s 286A(1), s 286A(1)(a)(i), s 286A(1)(a)(ii), s 286A(1)(b), s 286A(1)(b)(i), s 286A(1)(b)(ii), s 286A(1)(e), s 286A(1)(f), s 286A(1)(g), s 286C(2), s 298(4), s 308, s 308(1)(a), s 309, s 318ES, s 403(1)(e), s 418, Pt 7, Sch 2

Mineral Resources Amendment Act 1995 (Qld), s 5(2)

Mineral Resources and Other Legislation Amendment Act 2006 (Qld), s 6(2)

Mining Act 1968-1986 (Qld), s 21, s 21(1), s 21(1)(a), s 21(1)(b), s 21(2A), s 28(1)(a)(ii), s 28(2)(b), Pt 7

Mining Act 1968-1986 (Qld) (as amended by Mining Act Amendment Act 1971), s 109(1)

Mining Act Amendment Act 1971 (Qld)

Mining Regulations 1979 (Qld), reg 36, form 10, form 20

Uniform Civil Procedure Rules 1999 (Qld), r 681

Anghel v Minister for Transport (No 2) [1995] 2 Qd R 454; [1994] QCA 232, cited

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] EWCA Civ 1, cited

Blay v Pollard and Morris [1930] 1 KB 628, cited

Concord Data Solutions Pty Ltd v Director-General of Education [1994] 1 Qd R 343, cited

Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1; [1959] UKPCHCA 1, cited

Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218, cited

Garland v Chief Executive, Department of Corrective Services [2006] QCA 568, cited

Kerr v Commissioner of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721, cited

Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285; [2008] HCA 48, cited

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21, cited

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, cited

Palmer v Guadagni [1906] 2 Ch 494, cited

R v Hillingdon London Borough Council; Ex parte Puhlhofer [1986] AC 484; [1986] UKHL 1, cited

Ryde Municipal Council v Macquarie University (1978) 139 CLR 633; [1978] HCA 58, cited

Thorp v Holdsworth (1876) 3 Ch D 637, cited

Wright & Bright v The Minister for Employment, Skills and Mining [2012] QSC 112, considered

COUNSEL:

P J Callaghan SC, with B P Ryan, for the appellant

A A J Horneman-Wren SC, with A D Scott, for the first respondent

R Traves SC, with N Andreatidis, for the second respondent

S Farnigia (sol) for the third respondent

SOLICITORS:

Carruthers Solicitors for the appellant

Crown Law for the first respondent

DibbsBarker for the second respondent

Hemming & Hart Lawyers for the third respondent

  1. WHITE JA: I have read the reasons of Fryberg J as to why he would allow the appeal.  His Honour has expressed those reasons in his customary cogent and attractive style which makes them, standing alone, compelling.  However, like McMeekin J, I respectfully disagree with his Honour’s conclusion.  As McMeekin J has demonstrated, much of his Honour’s analysis involves taking issue with factual matters not disputed below.  Of the several deponents whose affidavits were relied on, only the Minister was cross-examined.  I do not intend to repeat what McMeekin J has set out in his reasons with which I agree.
  1. The issues on appeal are not unduly complex. The appellants are local residents who live two to three kilometres from land near Ipswich known as the Ebenezer Mine over which ML 4712 was granted in 1987.  The purpose of the mine lease was to mine clay-bentonite, coal and shale.[1]
  1. Open-cut mining had occurred from 1987 to 2003 when mining ceased and the mine was put under “care and maintenance”.[2]  The second respondent, Zedemar Holdings Pty Ltd (“Zedemar”), the current owners of the land and assignees of lease ML 4712, sought the renewal of the lease in April 2008.  The Minister reported to the Governor in Council in favour of renewal and on 15 September 2011 the application to renew was granted for 15 years from 1 November 2008.
  1. The third respondent, OGL Resources Limited, agreed to acquire ML 4712 from Zedemar in May 2011.
  1. Below, the appellants needed to establish their standing to challenge the decisions to renew the lease. They contended that when the mine was in operation it had a detrimental effect on the use and enjoyment of their properties because of noise and vibrations associated with blasting on the mine site, the use of heavy machinery and heavy vehicular traffic; as well as strong lights at night affecting the amenity, and dust and fumes affecting the air quality, of the area.[3]  His Honour concluded that the appellants had a “sufficient material interest”[4] in challenging the renewal of the lease.  The respondents do not challenge that decision.
  1. The Minister has filed a notice of contention that the primary judge could have upheld the decision on a different ground than that which founded his decision.
  1. The appellants’ grounds for challenging the Minister’s decision are set out in the amended application for a statutory order of review.[5]  In effect, they follow the
    pre-conditions for renewal of the lease about which the Minister had to be satisfied in s 286A(1) of the Mineral Resources Act 1989 (Qld) (“the Act”).[6]  Section 286A provides, relevantly:

“(1)Subject to part 17, division 5, the Governor in Council may grant an application for the renewal of a mining lease if the Minister is satisfied of each of the following –

(a)the holder has complied with -

(i)the terms of the lease; and

(ii)this Act in relation to the lease;

  1. the land the subject of the lease –

(i)still contains workable quantities of mineral or mineral bearing ore; or

(ii)is otherwise required for purposes for which the lease was granted;

(g)the public interest will not be adversely affected by the renewal;

…”

  1. One of the curiosities of this matter has been the failure of any party to put before the court (at any level) the subject lease.  Apart from the reference in the Mining Lease Report[7], which describes the “purpose”, laconically:

Minerals/Purpose

CLAY—BENTONITE

COAL

SHALE”[8]

there is no information about the purpose for which the lease was granted.  The purpose must, therefore, be derived from the legislation.  Section 276 of the Act provides that each mining lease shall be subject to certain conditions, in particular:

“(1)Each mining lease shall be subject to –

(a)a condition that the holder shall use the land comprised in the mining lease bona fide for the purpose for which the mining lease was granted and in accordance with this Act and the conditions of the mining lease and for no other purpose; and …”

  1. The appellants contend that on no view could Zedemar be said to have used the land for mining the named minerals and the Minister could not reasonably have been satisfied that it had done so and ought not to have recommended its renewal.[9]
  1. The approach of the court to a review of a decision of the kind under consideration here, colloquially described as Wednesbury unreasonableness,[10] was indicated by Gleeson CJ and McHugh J in Minister for Immigration and Multi-Cultural Affairs v Eshetu.[11] Their Honours referred to observations of Lord Brightman in Puhlhofer v Hillingdon London Burrough Council:[12]

“Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”

  1. The fact for decision by the Minister was whether Zedemar had complied with the terms of the lease. To consider whether the Minister’s decision about that fact was perverse the activities of Zedemar in relation to the lease must be evaluated against the terms of the lease.
  1. As Fryberg J and McMeekin J have demonstrated, the repealed Mining Act 1968-1986 (Qld) applies to this lease insofar as it identifies the purposes for which it was granted.
  1. Section 21(1) of the Mining Act described the relevant purposes for which a lease such as ML 4712 could be granted as follows:

“(1)… the Governor in Council may, subject to this Act, grant and cause to be issued to the applicant a lease over Crown Land for all or any of the following purposes –

(a)winning from the land such mineral or minerals as are specified in the lease and for all purposes necessary to effectually carry on that mining operation;

  1. such purposes (not being that of winning mineral from any land or of diverting or appropriating water) as are specified in the lease and connected with the purpose of carrying on mining operations.

For the purposes of this subsection a person shall be taken to have complied with the provisions of this Act if he has, in the opinion of the Governor in Council, substantially complied with those provisions.”

  1. As McMeekin J has observed, the conditions in s 234 of the Act to which the primary judge was invited by all parties below to have recourse is, relevantly, similar so that nothing turns on the fact that s 21 of the repealed Act was not considered.
  1. McMeekin J has rightly, with respect, noted that the purpose of the lease is not narrowly confined to winning specified minerals from the land. I agree with his Honour’s conclusion that the fact that Zedemar had not extracted minerals from the lease area does not conclude the issue and that if its activities included any activity “connected with the purpose of carrying on mining operations” that would suffice.[13]
  1. The lease was subject to a number of special conditions,[14] including that the land be rehabilitated “progressively”, and that where the work approved by the Minister ceased over all or part of the lease the lessee was required to submit a proposal to the Minister outlining the future working of the lease.
  1. Information about Zedemar’s activities was to be found in different sources, all of which were before the Minister or were relied upon for the briefing note to him. In a series of letters to the Mining Registrar, dated 18 April 2008, in support of Zedemar’s application for renewal of the lease, Mr Berding wrote:

“RE: RENEWAL APPLICATION - MINING LEASE NUMBER 4712 STATEMENT OF PAST MINING OPERATIONS

Coal mining operations have been carried out continuously on ML 4712 (Ebenezer Coal Mine) during the current from 1987 to 2003. During this time it was operated by Allied Queensland Coalfields Pty Ltd (1987-1989), and then by Idemitsu South Queensland Coal Pty Ltd, later to become the Ebenezer Mining Company Pty Ltd.

After the acquisition of ML 4712 by ldemitsu South Queensland Coal Pty Ltd the Ebenezer Mine was developed as an export mine producing steaming coal for both the Japanese and Queensland power generation markets. In mid 2003 the Ebenezer Mining Company closed the Ebenezer Mine and ML 4712 and selected assets and liabilities were tendered for sale and were subsequently acquired by Zedemar Holdings Pty Ltd.

Since acquisition by Zedemar Holdings Pty Ltd no coal mining activities have been carried out on ML 4712, and the Ebenezer Mine has been held in care and maintenance, including the rehabilitation of the decommissioned haulage systems, coal preparation and coal handling infrastructure and the tailings impoundment area.”[15]

  1. Earlier, in August 2002, in his capacity as general manager of the Ebenezer Mining Company, Mr Berding notified the Director General of the Department of Natural Resources and Mines that the Ebenezer Mine would cease production when its current mining contract was completed in December.  He wrote:

“Although we had hoped mining would continue for several more years, the mine’s closure has become increasingly inevitable.  The forecasts of continuing weak steaming coal prices combined with unfavourable currency movements and increasing production costs have made the operation of Ebenezer beyond 2002 unviable.”

It is proposed that the mine will be placed under care and maintenance when final mining and washing operations, site rehabilitation, and coal sales are completed.”[16]

Those sales were to conclude in March 2003.

  1. The other letters of 18 April addressed each of the relevant criteria in s 286A about which the Minister was required to be satisfied.  They included a statement that Zedemar had complied with the terms and conditions of the mining lease and the Act in relation to it[17]; the public interest had been satisfied by providing benefits through employment and the payment of associated taxes and royalties, and the final rehabilitation of the site to allow for redevelopment of the freehold land and for other purposes[18]; that technical and financial resources were available[19]; the land and surface area was the appropriate size and shape to allow the extraction of the residual coal resources and provided an adequate buffer zone[20]; the amount of residual coal resources to be extracted at the production rate of one million tonnes per annum[21]; and that the land contained workable and economic quantities of export grade steaming coal and associated sodium bentonite sufficient to sustain the proposed development plan as detailed in an accompanying reserve statement.[22]
  1. In addition, Zedemar provided the Mining Registrar with a detailed Development Plan. In the Project Overview the following appears:

“The Mine, ML 4712 and the rights to MDLA 172[23] were acquired by ZMRH in August 2003, and since acquisition ZMRH have maintained the mine on a care and maintenance basis while investigating the feasibility of recommission the Ebenezer Mine operation.  However, attempts to restart the Ebenezer Mine have to date been unsuccessful, primarily due to the lack of availability of rail access to the Port of Brisbane and low global coal prices.”[24]

  1. None of this information was challenged.
  1. The Mining Registrar conducted a site inspection of the mining lease on 13 December 2010 accompanied by other officers from the relevant department.  The purpose of the inspection was to gather information to assist in the assessment of the renewal.  He produced a memorandum dated 10 January 2011[25] which was to be used by the Minister in considering the renewal of the lease.  He also prepared a Renewal Assessment to advise the Minister.[26]  He advised that the lease holder had complied with the terms of the lease and the Act and that its past performance had been satisfactory.  He addressed each of the criteria about which the Minister needed to be satisfied pursuant to s 286A of the Act.  This was a body of evidence upon which the Minister was entitled to rely. 
  1. It was an express special condition of the lease that the lease holder rehabilitate the mine site. The Mining Registrar confirmed in his memo of 10 January 2011 that rehabilitation was being carried out on the mine site. Some relevant photographs were included with his report. I agree with McMeekin J’s conclusion that the rehabilitation work came within the broader purposes set out in s 21(1)(b) of the Mineral Resources Act, being “connected with the purpose of carrying on mining operations”.
  1. McMeekin J has considered the appellants’ contention that even if Zedemar was holding the lease “in care and maintenance”, it was not using the land “comprised in the mining lease bona fide and for the purpose for which the mining lease was granted” as required by s 276(1)(a) of the Act.  As his Honour has noted, there was no positive obligation to mine the lease continuously.  This more limited obligation was a departure from the requirement to mine continuously in the repealed Mining Act.  Thus, the cessation of winning minerals did not automatically mean that the use ceased to be bona fide and for the purpose for which the mining lease was granted.  I agree with what McMeekin J has written on this question.[27]
  1. Zedemar had kept the Mining Registrar and/or the relevant department informed of what was occurring on the leased land. It was actively engaged in reviewing the winning of coal and other minerals. There was an economically significant seam of coal still to be won but when the circumstances suggested it would be appropriate to recommence the mining works. Activity relevant to the lease was taking place. As the primary judge and McMeekin J have observed, it must be within the contemplation of the Act that from time to time economic and, perhaps, other circumstances will dictate non-active periods.  It is a matter for the judgment of the Minister whether, among other relevant factors, the period when minerals are not being extracted is so great that the lease holder should no longer be permitted to have the benefit of the lease.  McMeekin J’s analysis suggests that this was not the lengthy period contended for by the appellants.
  1. The decision by the Minister to renew this lease in the circumstances presented to him, about which there was no dispute, is a long way from the unreasonableness contemplated in s 23(g) of the Judicial Review Act and from a conclusion that in making the relevant decisions the authorities were acting perversely.  The primary judge was correct to dismiss the application.

Costs

  1. The appellants seek leave to appeal the order for costs made when judgment was handed down on 4 May 2012. The primary judge ordered that the appellants pay the costs of and incidental to the application incurred by the Minister.[28] 
  1. The order sought by the appellants in their notice of appeal, in the alternative to the respondents paying their costs of the appeal and the application below, is:

“… the [appellants are] indemnified in relation to the Respondents’ costs (including the second and third respondents’ costs) pursuant to section 49 of the Judicial Review Act 1991.”[29]

An order of that kind may be made pursuant to s 49(1)(d) of the Judicial Review Act.  That is not what the appellants sought before the primary judge.  They submitted that there should be no order as to costs relying on s 49(2)(b) of the Judicial Review Act, that is:

“In considering the costs application, the court is to have regard to –

(b)whether the proceeding involves an issue that affects, or may affect, the public interest, in addition to any personal right or interest of the relevant applicant …”

That is the basis of their written submissions before this court.

  1. An appeal from an order made pursuant to s 49 may only be brought with the leave of this court.[30]
  1. The second and third respondents were made parties to the judicial review application on the express condition that they bore their own costs regardless of the outcome.[31]
  1. The primary judge did not give reasons for the order that the appellants pay the Minister’s costs of and incidental to the application. The appellants contend that this rendered his decision more vulnerable to challenge.
  1. Section 49(2) provides that in considering a costs application the court is to have regard to the financial resources of the relevant applicant and, as mentioned, the public interest. By s 49(2)(d) a factor to consider when considering the issue of the public interest is whether the application “can be supported on a reasonable basis”.  Subject to those particular provisions, s 49(4) provides that the rules of court made in relation to the awarding of costs apply to a proceeding arising out of a review application.  That is, that as a general proposition, costs follow the event.[32]
  1. The appellants argued before the primary judge that there was a public interest, in addition to any personal right or interest, which would preclude an order for costs being made against them without further elaboration. They also contended that there was a reasonable basis for their application.  It may be accepted, particularly in light of the differing views held on this appeal that the application was brought on a reasonable basis.   Having heard the submissions, his Honour made the order without further elaboration.
  1. When his Honour invited any applications for costs (after he had dismissed the application) the appellants’ lawyers asked for an opportunity to make written submissions. His Honour said:

“Oh why?  Read the decision.  It’s a very clear matter in respect of costs.  I think it was an interesting argument, but your client’s lost – your client’s won on the issue of standing but lost overall.”[33]

The appellants contend that his Honour fettered his statutory discretion by
pre-emptively deciding about costs.  His Honour stood the matter down to give the parties time to read the judgment.  He then resumed to hear their submissions. His Honour did not fetter his discretion.

  1. The appellants complain that the primary judge “did not reflect upon the contemporary significance of the legislation at the core of the matter”; that there “is a real public interest in any litigation which clarifies the manner in which the Mineral Resources Act should be applied”; and that there is a “public interest in examining machinations of the executive which would ordinarily be hidden from public scrutiny, especially when they involve something of such critical importance, to the State of Queensland, as mining”; furthermore, it was litigation which involved corporations, the executive and individuals.[34]
  1. The appellants were held by the primary judge to have standing to bring the application to review the Minister’s decision on the basis that their personal interests were affected – by the noise, dust, lights and so on emanating from a reactivation of the mine – over and above the community generally. While other residents, no doubt, shared their concerns, there was no wider public interest obviously being protected.
  1. There is little authority on what might constitute the public interest under s 49(2)(b).  McHugh J in Oshlack v Richmond River Council[35] in considering the general rule about costs, commented on the great difficulty in identifying any principles to guide the exercise of judicial discretion over costs when the public interest is said to call for a different order than that costs follow the event.[36]  In Concord Data Solutions Pty Ltd v Director-General of Education[37] Thomas J ameliorated the usual order that costs follow the event and ordered the unsuccessful applicant of a Judicial Review Act application to pay one half of the respondent’s costs because:

“The applicant in a sense took the role of pioneer to ascertain the reviewability of an action taken in the midst of a complex web of financial legislation and statutory instruments.”[38]

  1. In South East Queensland Progress Association (Anghel) v Minister for Transport[39] McPherson JA said:

“Section 49(2)(b) appears to be directed to proceedings in which it is the public interest rather than any private right of the applicant that is sought to be vindicated by the application.  Here, the residents are understandably aggrieved at bearing what they see as a disproportionate share of the burden imposed by a public project; but it remains true to say that it was their rights of property and personal convenience and not the public interest they were intent on protecting when they made the review application.”[40]

That seems to be the position of the appellants here.

  1. The Act itself required the Minister to have regard to the public interest as one of the conditions for renewal of the lease.
  1. As to the other matters raised - to speak of the “machinations of the executive” does not elevate the nature of the application. There is nothing in the material to support such an articulation of the renewal process. There is much litigation between individuals, corporations and the State. Of itself that cannot be a reason for not making an individual responsible for costs if unsuccessful.
  1. Brief reasons for making the costs order were desirable but his Honour was made aware of the statutory provisions and there is nothing to suggest that his discretion miscarried when he ordered, in effect, that the costs should follow the outcome of the application.
  1. I would refuse leave to appeal the costs order made below.
  1. I agree with the orders proposed by McMeekin J.
  1. FRYBERG J:  In the Trial Division the present appellants sought judicial review of two decisions about the renewal of a mining lease at Ipswich.  The first in time was the decision of the then Minister whose portfolio encompassed mining to report to the Governor in Council that he was satisfied with each of the matters in s 286A(1) of the Mineral Resources Act 1989 (“MRA”) and to recommend the renewal of ML 4712 (“the lease”).[41]  The second was the decision of the Governor in Council made on 15 September 2011 to grant the renewal for 15 years from 1 November 2008.  At first instance the application was dismissed.
  1. The power of the Governor in Council to renew the lease depended upon the Minister’s being satisfied that the holder of the lease had complied with the terms of it.[42]  At all material times one of those terms was a condition “that the holder shall use the land comprised in the mining lease bona fide for the purpose for which the mining lease was granted”.[43]  The “holder” within the meaning of that condition was Zedemar Holdings Pty Ltd (“Zedemar”), the second respondent.  Both at first instance and on appeal the appellants submitted that Zedemar had not complied with the terms of the lease, in that it had breached that condition.  At first instance a number of acts and omissions were relied upon as constituting the breach, but on appeal the appellants relied only on Zedemar’s failure to carry on mining on the lease.
  1. Zedemar here submitted that there was evidence before the Minister to show that it had not breached the condition, but even if the evidence showed that it had, the Minister was still entitled to be satisfied with compliance. It submitted that the interposition of the Minister’s satisfaction about compliance effectively gave the Minister room to find compliance notwithstanding a breach. It submitted that the purpose of including the words “if [the Minister is] satisfied” was to prevent objective compliance becoming a jurisdictional fact. While a decision might be challenged for Wednesbury unreasonableness, no such challenge was available in this case because the question of breach depended not on the existence or nonexistence of a simple fact, but on a matter of degree and judgment.  The Minister was in the best position to make such a judgment and it was he to whom the legislature had given the task of judging.  He had made his judgment, went the submission, and that was the end of the matter.
  1. One difficulty with that submission is that it failed to meet the point made by the appellants that this was indeed a case of Wednesbury unreasonableness.  Moreover, one may accept that the Minister was required to exercise judgment in deciding his level of satisfaction for the purposes of s 286A(1)(a)(i) of the MRA.  The culmination of the exercise still required, if the power of the Governor in Council were to be enlivened, that the Minister be satisfied that the holder had complied with the terms of the lease.  For my part I cannot understand how he could be so satisfied if the evidence before him incontrovertibly demonstrated a substantial breach of condition.  I say substantial because it may be that upon its proper interpretation, substantial compliance is sufficient for the purposes of that section.  It is unnecessary to decide that point because it was not suggested in the present case that if the evidence before the Minister demonstrated a breach, it was nonetheless a breach of such a nature as to permit a finding of substantial compliance.  That is understandable given the obvious importance of the condition in question.
  1. In any event, the Minister’s satisfaction was arrived at on the basis that the holder had complied with the terms of the lease[44], not on the basis that it had not done so.

The purpose for which the lease was granted

  1. To prove the alleged breach of the implied term that Zedemar should use the land “for the purpose for which the mining lease was granted”, it was necessary for the appellants to demonstrate to the Minister what that purpose was and then to show that Zedemar had not used the land for that purpose. These were questions of fact.
  1. The evidence as to purpose was scant. For reasons which were not explained, neither side placed a copy of the lease before the court. It was granted in 1987 under the Mining Act 1968-1986 over what was apparently privately owned land and a road reserve to Lemon Grove Investments Pty Ltd (“Lemon Grove”).  An affidavit made by an officer of the Minister’s Department exhibited a letter from the Director-General to Lemon Grove dated 30 October 1987 which the officer described as a “letter of grant”.[45]  (Plainly it was no such thing; the Director-General had no power to grant anything, nor did he purport to do so.  The letter simply served to notify Lemon Grove that the Governor in Council had granted the lease.)  It contained no clue as to the purpose of the grant. 
  1. Mr Berding, a director of Zedemar, exhibited to his affidavit what he described as a “Mining Lease Tenure Report” in respect of the lease. The report is evidently a printout from the Department's computer. It contains the following:

 

Minerals/Purpose

CLAY-BENTONITE

COAL

SHALE”

  1. Between 1987 and 2005 the lease was transferred to others on a number of occasions. It was assigned to Zedemar in September 2005. Zedemar also became the owner of an estate in fee simple in the land but not, presumably, the road reserve. Several documents referred to the transfers, but none contained any clue as to the purpose for which the lease was originally granted.
  1. Before turning to the parties’ submissions, it is as well to set out some of the relevant statutory provisions. The lease must have been granted under s 21 of the Mining Act 1968-1986: 

“(1)Upon the application of any person who, in the case of a natural person, has attained the age of eighteen years and upon the applicant complying with the provisions of this Act relating to such application the Governor in Council may, subject to this Act, grant and cause to be issued to the applicant a lease over Crown land[46] for all or any of the following purposes: –

(a)winning from the land such mineral or minerals as are specified in the lease and for all purposes necessary to effectually carry on that mining operation;

(b)such purposes (not being that of winning mineral from any land or of diverting or appropriating water) as are specified in the lease and connected with the purpose of carrying on mining operations.

For the purposes of this subsection a person shall be taken to have complied with the provisions of this Act if he has, in the opinion of the Governor in Council, substantially complied with those provisions.”

  1. The Mining Act 1968 as amended was repealed by the Mineral Resources Act 1989.[47]  The latter contained elaborate transitional provisions.[48]  Relevantly these included:

3.Mining leases.  (1) (a) Notwithstanding that the provisions of section 7.1, 7.2 or 7.6 may be contravened or not complied with, a lease that is –

  1. a gold mining lease, special gold mining lease, mineral lease, special mineral lease, dredging lease, coal mining lease, special coal mining lease or mining lease granted or deemed to have been granted under the repealed Acts or any other Act relating to mining or any other such lease or mining lease;

or

  1. … ,

and that is current immediately prior to the commencement of this Act shall, upon that commencement be deemed to be a mining lease granted for the balance of its term current at that date.

(b) The holder of a lease referred to in paragraph (a) (i) immediately prior to commencement of this Act shall hold the mining lease subject to the provisions of, and the conditions imposed under, this Act and all special covenants and special conditions to which the lease was subject (including special covenants and conditions under section 28 (2) (b) or Part VII of the Mining Act 1968-1986) shall be deemed to be conditions of the mining lease but, if a special covenant or a special condition to which the lease was subject pursuant to that section 28 (2) (b) or pursuant to any other similar statutory provision is inconsistent with this Act or conditions thereunder, that special covenant or special condition, to the extent of the inconsistency, shall prevail.”

“Mining lease” was not then a defined term, but in 1995 the MRA was amended to define it as “a mining lease under Part 7”.[49]  A subsequent expansion of the definition had no material impact for present purposes.[50]

  1. Clause 3(1)(a) by its closing words deemed ML 4712 to be “a mining lease granted [under Part 7] for the balance of its term current at” the commencement of the MRA.  As the respondents submitted, it was thereafter deemed by operation of law to be a lease under the new act.  From the commencement of that act the lease was held “subject to the provisions of, and the conditions imposed under” that act.

Zedemar's submissions

  1. Zedemar submitted that the effect of the transitional provisions was not to preserve the existing lease but to deem the grant of a new lease. Fixing upon the participle “granted” near the end of para (1)(a), it submitted that what was deemed was a grant under the new act. It made the following submissions in support of that interpretation:

(a)the wording of the transitional provision deemed there to be a grant of a lease for the balance of the term current at the commencement date.  There would not need to be a grant of a lease if the term of the existing lease were simply to run;

(b)any other interpretation would lead to practical difficulties;

(c)the proposed interpretation draws strong support from the Explanatory Notes for the MRA.

  1. In my judgment that submission cannot be accepted. Had the intention being to deem the lease to be a new lease created under the new act it would have been easy enough to have said so. What Parliament did was to take the existing lease and deem it to have been granted under the new act for the balance of the term.  Special covenants and conditions to which it was subject were deemed to be conditions and to prevail even if they were inconsistent with the MRA.
  1. That interpretation does not give rise to practical difficulties. Zedemar instanced the original s 7.4 (later s 235) of the MRA as a provision which furnished a good example:

7.4 Entitlements of holder of mining lease. (1) During the currency of a mining lease, the holder of the mining lease and any person who acts as agent or employee of the holder (or who delivers goods or substances or provides services to the holder) for a purpose for which the mining lease is granted –

(a)may enter and be –

(i)within the land comprised in the mining lease;

and

(ii)upon the surface area comprised in the mining lease,

for any purpose for which the mining lease is granted or for any purpose permitted or required under the lease or by this Act;

(b)may do all such things as are permitted or required under the lease or by this Act.”[51]

It is difficult to see how a literal reading of the Act creates any practical difficulty in relation to that section.

  1. It is unnecessary to quote the terms of the Explanatory Notes. Like most such Notes, they add nothing to the text of the Act.
  1. Zedemar submitted that once it was understood that the effect of the clause was to deem the lease to be a new lease under the MRA, it followed that one looked to s 234 of the new act to identify the purposes for which the lease was granted.  That section provided:

234Governor in Council may grant mining lease

(1)The Governor in Council may grant and cause to be issued to an eligible person or persons, a mining lease for all or any of the following purposes: —

(a)to mine the mineral or minerals specified in the lease and for all purposes necessary to effectually carry on that mining;

(b)such purposes, other than mining, as are specified in the mining lease and that are associated with, arising from or promoting the activity of mining.”

Section 6A defined “mine” to mean:

to carry on an operation with a view to, or for the purpose of—

(a)winning mineral from a place where it occurs; or

(b)extracting mineral from its natural state; or

(c) disposing of mineral in connection with, or waste substances resulting from, the winning or extraction.”

  1. That section, like s 21 of the 1968 Act, contained an exclusive list of the purposes for which a mining lease could be granted. It did not provide that every mining lease was granted for all of these purposes. It was open to – indeed, it was probably obligatory upon – the Governor in Council to select the purposes for which a particular lease would be granted from the list in the section. In the case of any particular lease, identification of the purposes for which the lease was granted was a question of fact. Sometimes the parties’ submissions seemed to lose sight of that.
  1. Therein lies another reason why Zedemar's submission must fail. If, as Zedemar submitted, a deemed lease were a new lease, it would be impossible to identify which of the possible purposes to attribute to it. The transitional provisions contained nothing to assist in this process. Because the transition occurred by operation of law no one would have given consideration to the purpose or purposes for which the new lease was granted. Yet the MRA assumed in several places that such purposes existed.[52]  Absent such purposes, these provisions would be unworkable.  Of course, that problem might be avoided by presuming the new lease to be for the same purposes as the original lease.  There is something to be said for that approach, for it avoids a rather sterile conceptual analysis; but obviously it would be inconsistent with Zedemar's contention that the purposes of the new lease were to be derived from s 234 of the MRA.

The appellants’ submissions

  1. The appellants submitted that the purpose for which the lease was granted was founded in the first place on the evidence of the Departmental computer report.[53]  They indicated that this “understanding” was “informed” (whatever that might mean) by s 234 of the MRA.  They referred to s 418 of the MRA, introduced in 1995, and to the omission of the Second Schedule in 1998.
  1. I did not find those submissions helpful. The extract from the computer report provided evidence of what the lease specified as the minerals which the holder was entitled to extract. Both s 21 of the 1968 Act and s 234 of the MRA mandated that specification, and the word “Minerals” in the report, followed by the names of three minerals, is strong evidence of statutory compliance in this respect. Unfortunately, the report was silent about the purpose or purposes for which the lease was granted.
  1. Section 418 of the MRA simply provided (so far as is relevant) that a reference in an act or document to the 1968 Act was taken to be a reference to the MRA. The submission identified no particular document referring to the 1968 Act to which to apply the section.
  1. The omission of the Second Schedule in 1998 was probably to bring the Act into line with modern Queensland statutory drafting practice, whereby transitional provisions are omitted from reprinted legislation.  No party suggested that the transitional provisions ceased to have effect.

The Minister’s submissions

  1. The Minister submitted that it followed from the deeming of the lease to be a mining lease granted under the MRA that it was to operate as if it were a lease granted by the Governor in Council under s 234. He submitted that it must be deemed to have been granted under that section and for the purposes (presumably all of the purposes) of the section. He referred to the then Minister’s second reading speech, where the latter told Parliament, “All leases currently in existence are to be deemed to be mining leases pursuant to the proposed legislation and are to continue in force for the balance of the term for which they were granted … .”[54]
  1. That submission is essentially the same as that of Zedemar. The reference to the second reading speech adds nothing to the text of the Act. Subject to what follows, the submission has already been dealt with.
  1. The Minister supported his construction by reference to the introductory words of cl 3(1)(a) of the original Second Schedule of the MRA, “Notwithstanding that the provisions of section 7.1, 7.2 or 7.6 may be contravened or not complied with”.  He submitted that those words only had operation in terms of the identified sections being contravened or not complied with if the deemed lease were one granted under the MRA.
  1. The difficulty with that argument is that it does not go far enough. As noted above[55], the transitional provisions did deem the lease to be one granted under the MRA.  That being so, the introductory words were necessary to avoid conflict with the stated sections.  They do not assist in identifying the purposes of the lease.
  1. Where does that leave the appellants? They have failed to prove the purposes for which the lease was granted either to the Minister or to the court. They did not suggest that the lease was a nullity by reason of any failure on the part of the Governor in Council to identify or specify the purposes of the lease and there is no reason to infer any such failure. The presumption of regularity should be applied. There is good reason for this. Section 21(1) of the 1968 Act required an applicant for a mining lease to comply with the provisions of the Act relating to the application before a lease could be granted. Section 21(2A) required the applicant to lodge an application for a mining lease “in the prescribed manner and form”. Form 10 was prescribed under the Mining Regulations 1979. It required an applicant to state the purpose for which the lease was required. That was important information. Regulation 36 required that a mining lease be in a prescribed form, which was Form 20. That form provided:

“TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETING:

WHEREAS in conformity with the provisions of Acts of Parliament of Our State of Queensland called the Mining Act 1968-1979 …,                                                        of Our said State made application to Us for a Lease of the Land in Our said State described in the Second Schedule hereinafter written for the purpose of

AND WHEREAS WE have consented to grant a Lease of the said land  for the purposes aforesaid …

Now KNOW YE  that  …  WE DO HEREBY    demise and lease unto the said               … [the land ]              … described in the Second Schedule hereinafter written for the purpose of                                                        … .”

With the commencement of the MRA the lease was deemed to be a lease under that Act, probably (it is unnecessary to decide the point) with the result that the lessee was deprived of its interest in land.[56]  But nothing in the MRA affected the purpose for which the lease was granted.

  1. Can the appellants nonetheless succeed in the appeal? In my judgment they can. Let it be assumed in favour of the respondents that the purposes for which the lease was granted were all of the purposes for which it could have been granted. If no reasonable person in the position of the Minister could have found that Zedemar used the land for any of those purposes, the appellants must succeed.

Zedemar's use of the land

  1. The evidence as to the use made of the land before both the Minister and the court was very vague. In a covering letter which accompanied the renewal application, Mr Berding wrote:

“Since acquisition by Zedemar Holdings Pty Ltd no coal mining activities have been carried out on ML 4712, and the Ebenezer Mine has been held in care and maintenance, including the rehabilitation of the decommissioned haulage systems, coal preparation and coal handling infrastructure and the tailings impoundment area.”[57]

The Mining Registrar identified no such rehabilitation in his report on his subsequent inspection (below), nor in the assessment placed before the Minister for the purposes of his decision.[58]  Mr Berding made an affidavit in these proceedings, but did not verify the allegation of rehabilitation work.  There was no evidence before the Minister or the court of what would have been involved in rehabilitating the infrastructure and impoundment area in this 675 hectare lease.  Neither the Minister[59] nor the judge at first instance[60] made any finding that this rehabilitation occurred.

  1. The judge found that from March 2003 until its expiry, neither the previous holder nor Zedemar conducted mining on the lease.[61]  His Honour found that other activities were carried out, including the conduct of a drilling technology business, an explosives manufacturing business, a chemical storage facility, a processing and bagging site and the grazing of cattle.[62]  That finding clearly was based on a report[63] of an inspection of the lease carried out by the Mining Registrar on 13 December 2010 to gather information to assist in the assessment of the renewal application.  Relevantly, the Registrar reported:

“•The previous site office building has been leased to Mezurx.  The office was occupied at the time of inspection.

Mezurx’s drilling technology site is located to the east of the main entrance.  The site is used to test new drilling technology.  Several buildings are located at this site.  No recent activity was identified.

Maxam Explosives operates a chemical storage facility within the lease area.  The explosives inspectorate is aware of this site. …

Maxam’s site is not being used as part of the mining operation, as the lease has not been an operating coal mine for many years.  It is believed that this is a separate commercial operation, being operated with the consent of the lease holder.

The lease site has previously been used for waste disposal.  Records indicate that ‘Ti Tree’ was operating a waste disposal business in February 2006.  It is believed that the site of this operation has now been rehabilitated.

A composting site exists in the southern portion of ML 4712, in the form of several mounds.  The site involves the recycling of the contents of cattle stomachs to condition soil.  It is believed that this site is for the conditioning of soil for rehabilitation purposes, rather than a commercial operation.

Bentonite Products Pty Ltd operates a processing and bagging site at the end of Lanes Road, within the surface area of ML 4712.  Bentonite is being extracted from existing spoil piles, rather than mined from its natural state.

It was indicated during the inspection that coal was planned to be extracted from the water filled mine pits (Map D).  Coal seams were identified within the pit walls.

A coal wash plant that [sic] was located on site during previous inspections.  This plant has been sold and removed to a new offsite location.

Cattle were located grazing to the south of the old site office.”[64]

His Honour characterised these activities as “other” than mining.[65]

  1. Among the Registrar’s recommendations were:

“•That the holder provides details of Maxam’s operation and their views on this operation being a purpose for which the lease was granted.

That the holder provide details of Mezurx’s operation and their views on this operation being a purpose for which the lease was granted.”[66]

The Registrar’s recommendations were not adopted. 

  1. Correspondence in evidence suggested that the previous holder of the lease had ceased operating the mine in early 2003 because it found the operation unviable.[67]  At that time the coal preparation plant and product coal handling system had been dismantled and removed from the site and a number of haul road systems decommissioned and rehabilitated.[68]  It seems that his Honour inferred from this and from Zedemar’s conduct that economic circumstances had rendered mining by anyone uneconomical in the period between 2005 and 2008.  Zedemar attributed its failure to carry on mining operations primarily to a lack of availability of rail access to the Port of Brisbane and low global coal prices.[69]
  1. In September 2007 Zedemar lodged a draft development plan with the Department. Counsel conceded in argument that in practical terms it was necessary to have such a plan in place before the Minister would decide an application to renew the lease. That application was made in the following April. In December 2010, while it remained undecided, Zedemar apparently paid some compensation to the Ipswich City Council in respect of the use or proposed use of road reserves[70]; there was no evidence to explain this payment.  In May 2011, it made an agreement to sell the lease to OGL Resources Ltd (“OGL”), the third respondent.  The Minister was informed[71] and took the proposed assignment into account[72]. According to OGL, Zedemar had paid rent and taxes in accordance with the MRA and the lease throughout the term.[73]
  1. Zedemar submitted that there were sufficient facts before the Minister for him to be satisfied that it had complied with the condition. The appellants submitted that the decision that he was so satisfied was so unreasonable that no reasonable person could have made it.
  1. At first instance the judge did not identify any purpose for which the lease had been granted[74], but nonetheless he held that it was open to the Minister to be satisfied that Zedemar had used the land for the purposes for which the lease was granted.  With respect, I am unable to agree.  I cannot see that a person who holds the lease for six years[75] without winning any mineral from the land, without even attempting to do so, without doing anything necessary to effectually do so (except, perhaps, submitting a draft development plan for the purpose of obtaining the renewal of the lease) and without even intending to do so before assigning the lease, can be said to have been using the land for any of the statutory purposes[76]; a fortiori when it is realised that equipment had earlier been removed from the site and some haul road systems decommissioned and rehabilitated[77], and the person has rented out some of the land for other purposes.  In effect Zedemar treated the lease as a mid- to long-term asset which it resold when the time was ripe, having incurred holding costs in the meantime.
  1. Zedemar submitted that for it to do anything other than to discontinue mining or scale back in circumstances where it was uneconomical to mine would be imprudent and would destine the venture to failure. It submitted that simply to stop mining or to stop for any length of time, provided bona fides were maintained, was not a breach. In an appropriate case that might be so, at least where the cessation was for a limited period. The appellants conceded as much. However that is not what happened in this case. Zedemar never commenced mining, nor did it ever intend or attempt to win any mineral. There was no evidence before the Minister that it ever possessed the staff, the skills or the equipment to do so. In assessing its compliance with the lease, winning of minerals by previous holders is irrelevant.
  1. That does not conclude the question of whether Zedemar breached the condition. Zedemar submitted that even if its activities did not further the purposes for which the lease was granted, its use of the land could be regarded as having done so. It submitted that the appellants’ approach adopted a meaning of “use” which was too narrow and “uncompromising”. It submitted correctly that the word, at least as a noun, has no single precise meaning and is a protean word of wide import.[78]  However it did not propose a meaning for the verb “use” in the implied condition which would result in the absence of any breach of that condition.  The submission went nowhere.

Interpretation of s 276(1)(a) of the MRA

  1. The Minister raised a different argument. Pursuant to a notice of contention, he submitted that there was no breach of the condition imposed by s 276(1)(a) of the MRA because on the proper construction of that section the condition imposed no obligation to use the land.  He submitted that rather, the provision was intended to limit the use of the land.  The purpose of the condition was to require the holder to refrain from certain activities, not to oblige it to carry out any particular activity.  If that submission is correct, then Zedemar did not breach the condition even if it did not use the land for the purpose for which the lease was granted; it was under no obligation to do so.  On this submission the section is to be interpreted as if it read “a condition that the holder shall not use the land comprised in the mining lease other than in accordance with this Act and the conditions of the lease, nor for any purpose other than that for which the lease was granted”.  It was unnecessary for the judge at first instance to determine the issue.
  1. In support of that construction the Minister pointed to the concession made by the appellants that the condition did not impose any obligation of continuous use. He submitted that if the appellants’ construction were correct, it would be unclear what level of non-continuous use would be sufficient for compliance, and that the point at which compliance became non-compliance would be unknown or completely arbitrary.
  1. The MRA repealed the Mining Act 1968-1986. The corresponding provision in that Act was:

“28(1)

(a)there shall be included in every mining lease the following covenants and conditions …: –

(ii)a covenant to use the land comprised in the lease continuously and bona fide for the purpose for which it is demised and in accordance with this Act;”

It is impossible to construe that provision as doing anything other than imposing a positive requirement to use the land.

  1. The major difference between the two provisions is, as the parties recognised, the absence from s 276(1)(a) of the MRA of any requirement to use the land continuously. It is easy to imagine why that change might have been made. It is less easy to discern an intent not only to remove the obligation that the use be continuous but also to remove the obligation to use the land at all. The mandatory “shall” was carried into the new provision. If it had been intended to remove the obligation completely it would have been sufficient to impose a condition prohibiting the use of the land for any purpose other than that for which the lease was granted. The requirement at the beginning of the condition to use the land for that purpose would on that interpretation be surplusage.
  1. I see no reason to adopt such an interpretation when a sensible meaning can be given to the section as it was drafted. In my judgment the condition imposes a positive obligation as well as a prohibition.
  1. If it is possible to imagine factual circumstances in which it may be difficult to judge whether the condition has been breached. That is simply the consequence of the removal of the requirement for continuity of use. Such difficulties do not provide a reason for construing the condition as imposing no obligation of use at all.
  1. The submissions on behalf of the Minister claimed support from s 308 of the MRA. I am unable to see how that section bears upon the question.
  1. Zedemar submitted that on the appellants’ interpretation the Act would require the holder of a mining lease to continue to extract even when it was uneconomical to do so, presumably paying royalties until the venture should fail. The appellants’ interpretation did not produce that outcome. The holder of a mining lease is entitled to surrender it without penalty at any time.[79]  In that context an obligation to use the lease for the purpose for which it was granted is unsurprising.  Rugby players have an expression which could be applied here.

Conclusion

  1. In my judgment the evidence before the Minister admitted of only one conclusion: Zedemar had breached the statutory condition. Not only did the Minister make a decision which was irrational on the evidence before him; he also failed to turn his mind to all of the evidence and the difficulties which it posed. In the circumstances it was not open to the Minister to be satisfied as required by s 286A of the MRA. His decision that he was so satisfied cannot be sustained, with the consequence that the statutory precondition for the decision of the Governor in Council did not exist. That decision cannot stand.

Order

  1. The appeal should be allowed with costs. The order made in the Trial Division on 4 May 2012 should be set aside and in lieu thereof it should be ordered that the decision of the Minister to report to the Governor in Council that he was satisfied with each of the matters in s 286A(1) of the Mineral Resources Act 1989 and to recommend the renewal of ML 4712 to the Governor in Council made on 5 September 2011 be set aside; that the decision of the Governor in Council to renew ML 4712 made on 15 September 2011 be set aside; and that the respondents to the application pay the applicants’ costs thereof to be assessed.
  1. McMEEKIN J: I have had the advantage of reading the reasons for judgment of Fryberg J.  Those reasons have been very helpful in clarifying my thoughts on the matter but I respectfully disagree with the conclusion that his Honour has come to.  I will deal only with the arguments to the extent necessary to explain why I disagree with his Honour’s conclusions.
  1. The essential questions for decision are:
  1. whether it should be held that Zedemar Holdings Pty Ltd (“Zedemar”), since its acquisition of the subject mining lease, was holding the leasein care and maintenance” and carrying out “the rehabilitation of the decommissioned haulage systems, coal preparation and coal handling infrastructure and the tailings impoundment area”[80]as it claimed; and
  1. if so, whether the Minister was entitled to be satisfied that such activity came within a purpose for which the lease was granted.
  1. I have framed the essential issues in that way in deference to the analysis contained in Fryberg J’s reasons, but that formulation does not reflect the dispute that took place below or, to an extent, the issues agitated on the appeal.
  1. There were no pleadings here as the proceedings were commenced by application and no order was made for pleadings to be delivered. Pleadings serve several functions but two relevant here are that they serve to identify the issues (Thorp v Holdsworth (1876) 3 Ch D 637, 639) and they set the legitimate boundaries to the matters that the court can determine (Blay v Pollard and Morris [1930] 1 KB 628, 634).  The absence of pleadings means that this Court must necessarily proceed cautiously in ensuring that the issues that it determines were squarely raised below.  Any party to litigation is entitled to fair and proper notice of the issues intended to be raised so as to avoid being taken by surprise and precisely so that those issues can be addressed as comprehensively as the case may require.  That is so because of the inherent unfairness in acting otherwise: Palmer v Guadagni [1906] 2 Ch 494 at 497 per Swinfen Eady J; Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 at 238 per Lord Normand.
  1. The argument below was not that Zedemar was not engaged in rehabilitation work or in carrying out “care and maintenance” but that in doing so it did not satisfy the obligations imposed on it under the terms of the lease. That is evident from the Amended Application for Statutory Order of Review and the applicant’s outline of submissions which accompanied it. The respondents had only those documents to alert them to the relevant issues. The application identified the issue, relevant for present purposes, in paragraph 1(a)a as being that “no mining activity” had been carried out on the land since 2003. It is quite evident from the outline of argument presented to the primary judge that the appellant’s attack was on the lack of any activity involving the extraction of minerals from the land, see particularly para 20 of the outline. No reference was made to a failure to rehabilitate the land or to carry out activities constituting “care and maintenance”, both of which activities Zedemar claimed in its documents to have carried on. Nor was Mr Berding, Zedemar’s managing director and a deponent in the court below, required for cross examination as in my view he should have been if the claims made by Zedemar were to be challenged.
  1. The criticisms directed to the respondents for their failure to adduce evidence on these matters need to be judged with this in mind. And it follows that it is unsurprising that the learned primary judge did not make the findings of fact necessary for the determination of the evidential issues.
  1. I turn to the issues. It is useful to explain the question that was before the Minister by reference to the relevant statutory provisions. If Zedemar’s activities were not within a purpose for which the lease was granted then Zedemar was in breach of a term of the lease incorporated into the lease by s 276(1)(a) of the Mineral Resources Act 1989 (Qld) (“MRA”).  That subparagraph provides that each mining lease shall be subject to:

“a condition that the holder shall use the land comprised in the mining lease bona fide and for the purpose for which the mining lease was granted and in accordance with this Act and the conditions of the mining lease and for no other purpose”.[81]

  1. Whether Zedemar was in breach of a term of the lease was an essential issue on any application to renew given the requirements of s 286A of the MRA under which the Minster was obliged to consider Zedemar’s application for renewal. That section provides, so far as presently relevant, that subject to matters presently irrelevant:

“the Governor in Council may grant an application for the renewal of a mining lease if the Minister is satisfied of each of the following:-

  1. The holder has complied with:-
  1. the terms of the lease;
  1. this Act in relation to the lease;....”
  1. Thus if Zedemar had not complied with the terms of the lease then the Minster ought not to have recommended the renewal and the Governor in Council had no power to grant it.
  1. Whether Zedemar had breached a term of the lease was a question of fact, a question expressly left to the Minister to determine. That of course does not preclude a review by this Court, but the Minister’s decision must reach the level of perversity before we can interfere. In Minister for Immigration and Multicultural Affairs v Eshetu[82] Gleeson CJ and McHugh J quoted with approval the remarks of Lord Brightman in Puhlhofer v Hillingdon London Borough Council[83]:

“Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”

  1. Here the application was brought pursuant to the provisions of the Judicial Review Act but I do not see the test in Eshetu as involving any different consideration to that laid down in s 23(g) of the Judicial Review Act – “an exercise of a power that is so unreasonable that no reasonable person could so exercise the power.”
  1. To determine whether Zedemar breached the terms of the lease it is necessary to identify what those terms were. It is not known for what purpose the subject lease was granted as the lease has not been produced. The purposes for which such a lease could be granted were much the same under both the MRA and the repealed Mining Act 1968-1986.[84]  I mention that as the primary judge considered the question on the assumption that the MRA applied, as the parties asked him to do.  No different decision in my view could result if it be assumed that the purposes under the repealed Act are applicable, which, for the reasons given by Fryberg J, I think they are.
  1. Section 21(1) of the Mining Act 1968-1986 identified the relevant purposes for which such a lease could be granted: 

“(1)… the Governor in Council may, subject to this Act, grant and cause to be issued to the applicant a lease over Crown land for all or any of the following purposes: –

(a)winning from the land such mineral or minerals as are specified in the lease and for all purposes necessary to effectually carry on that mining operation;

(b)such purposes (not being that of winning mineral from any land or of diverting or appropriating water) as are specified in the lease and connected with the purpose of carrying on mining operations.

For the purposes of this subsection a person shall be taken to have complied with the provisions of this Act if he has, in the opinion of the Governor in Council, substantially complied with those provisions.”

  1. The relevant point is that the purpose of the lease is not restricted to the “winning from the land such mineral or minerals as are specified in the lease” but extends to “all purposes necessary to effectually carry on that mining operation” and “such purposes … as are specified in the lease and connected with the purpose of carrying on mining operations”.
  1. Hence the fact that Zedemar had not extracted minerals from the lease area does not conclude the issue. If its activities included any activity “connected with the purpose of carrying on mining operations” that would suffice.
  1. It is relevant that the lease was subject to various special conditions. Those conditions included:
  1. A condition that the lessee “rehabilitate all mined or disturbed surface areas progressively so as to minimise the area of the Lease which remains disturbed”;[85]
  1. A requirement that “Where at any time the work approved by the Minister ceases on the Lease or a particular area of Lease, the Lessee shall within 90 days submit to the Minister a proposal outlining the future working of the Lease or area”.[86]
  1. A condition that the lessee “shall maintain the Lease in a tidy state, and prior to the termination of the Lease remove all machinery and plant unless otherwise approved”;[87]
  1. With that background I turn to the first of the two issues, the evidential issue.
  1. The information from Zedemar as to the activities carried on at ML 4712 appears in a letter from its general manager of 18th April 2008 directed to the mining registrar:

“…the Ebenezer Mine was developed as an export mine producing steaming coal for both the Japanese and Queensland power generation markets.  In mid 2003 the Ebenezer Mining Company closed the Ebenezer Mine on ML 4712 and selected assets and liabilities were tendered for sale and were subsequently acquired by Zedemar Holdings Pty Ltd.

Since the acquisition by Zedemar Holdings Pty Ltd no coal mining activities have been carried out on ML 4712 and the Ebenezer Mine has been held in care and maintenance, including the rehabilitation of the decommissioned haulage systems, coal preparation and coal handling infrastructure and the tailings impoundment area.”[88]

  1. Further detail was provided in a document headed “Project Overview” attached to the application for renewal of the lease which again went to the mining registrar. The statement reads in part: “…since acquisition [Zedemar] have (sic) maintained the mine on a care and maintenance basis while investigating the feasibility of recommission (sic) the Ebenezer Mine operation. … In the interim ML 4712 has been maintained on a care and maintenance basis with rehabilitation works being carried out throughout the site. The original EMC coal preparation plant and product coal handling system … has been dismantled and removed from site, whilst haul road systems not required for future operations have been decommissioned and rehabilitated”.[89]
  1. Those were the claims of Zedemar as to its activities and so far as I can see they were never disputed. I will explore that a little further but it would seem fundamental that if Zedemar’s claims were to be disputed they should have been given notice of that and so given the opportunity to provide what evidence it could to support them.
  1. On 13 December 2010 the Mining Registrar conducted an inspection of the site of the lease. He wrote an office memo recording his observations dated 10 January 2011.[90]  In it he recorded, so far as is material on this point:
  1. a coal wash plant previously on site had been sold and removed;
  1. “A composting site exists in the southern portion of ML4712, in the form of several mounds. The site involves the recycling of the contents of cattle stomachs to condition soil.  It is believed that this site is for the conditioning of soil for rehabilitation purposes, rather than a commercial operation.”
  1. I observe that both observations provided confirmation of the claims made by Zedemar. No observation was made that contradicted those claims. The second observation was consistent only with the process of rehabilitation being ongoing.
  1. The same Mining Registrar prepared a document headed “Renewal Assessment” for the purpose of advising the Minster on relevant matters. In it he advised:
  1. The holder has complied with the terms of the lease; and this Act in relation to the lease. The past performance of the holder has been satisfactory. The holder has complied with the provisions of the MRA.”[91]
  1. “This mining lease has been in a care and maintenance program, subject to the conditions of grant in 1987.”[92]
  1. Again, no observation was made that contradicted Zedemar’s claims.
  1. That same Mining Registrar (amongst others) endorsed a ministerial briefing note that was relied on by the Minster in making his decision which included the recommendation that the minister “be satisfied in respect of each of the matters set out in section 286A(1) of the [MRA]”.  The very first matter referred to in the subsection is that the holder has complied with the terms of the lease.  It was obvious that Zedemar was not extracting minerals – it never claimed to have done so.  What the Mining Registrar could have meant by his endorsement of Zedemar’s satisfaction of the terms of the lease if not that he had observed that Zedemar was carrying on the activities it claimed escapes me.
  1. It can therefore be seen that it was a condition of the lease that the holder rehabilitate the leased area. It was the responsibility of the Mining Registrar to draw to the attention of his Department and the Minister if there was a breach of those conditions. He did not do so. He made observations that, so far as they went, confirmed the claims that were made. He made no observation that rehabilitation had not been carried out, or was not being carried out, as required. Zedemar asserted that such rehabilitation activities had taken place and were taking place. No person ever challenged that assertion. By s 404D(1) MRA it is an offence for a person to give a mining registrar a document containing information that the person knows is false or misleading in a material particular.  No claim has been made in these proceedings that the assertions of Zedemar that it was involved in carrying out rehabilitation are false.
  1. Against that background it is not open to this Court to now question Zedemar’s claims. That Mr Berding, the general manager of Zedemar, made no express reference in his affidavit in these proceedings verifying the allegation of rehabilitation work is perfectly explicable – Mr Berding’s purpose in filing his affidavit was to make application for Zedemar to become a party to the proceedings. He placed before the court relevant documentation and background information to enable the Court to understand the interest of his company in doing so. He did not address the issue of Zedemar’s activities on the site since September 2005 at all. Why should he? He had no reason to think that those activities were in issue. That explains too why neither the Minister nor the judge at first instance made any finding that this rehabilitation work had occurred.
  1. Thus the evidence placed before the Minister was that the second respondent contended that rehabilitation was ongoing and the mining registrar reported that there was evidence consistent with that claim and, after going to the mine site, did not contradict that claim as was his duty if that were so.
  1. In my view the Minister was obliged to act on this evidence, or at least there is no good reason shown why he should not.
  1. I turn then to the second issue – was the Minister entitled to be satisfied that such activity came within a purpose for which the lease was granted?
  1. Given that it was an express special condition of the lease that the holder rehabilitate the mine site I cannot see how engaging in such activity does not fall within the expressions “all purposes necessary to effectually carry on that mining operation” or “such purposes … as are specified in the lease and connected with the purpose of carrying on mining operations”.
  1. That such rehabilitation might have been done more quickly or efficaciously is not for this Court to assess. The appellants submitted to this Court that there was not “progressive rehabilitation” as cl 2.7 of the special conditions required and that if there was still a need for rehabilitation then there had been a breach of that clause.[93]  We have no evidence to assess the merits of the submission as such matters were not put in issue below. 
  1. What of the claim that Zedemar was holding the leasein care and maintenance”? There are two aspects to the question.  The first is whether it ought to be accepted that Zedemar was holding the lease “in care and maintenance”.  The second is, assuming that was all that Zedemar was doing, was it using “the land comprised in the mining lease bona fide and for the purpose for which the mining lease was granted” as s 276(1)(a) MRA required?
  1. As to the first question again Zedemar was not challenged in its claims. Rather the appellants below accepted that the “evidence before the Minster was that the mining lease was in a ‘care and maintenance program’ since 2003” but argued that that did not assist Zedemar because that was not a status recognised by the MRA.[94]  That acceptance precludes any investigation on this appeal of the basal facts.
  1. But I point out that what evidence there was suggested that there was infrastructure present on the mine site that was intended to be used in the future and that might therefore require care and maintenance. In its Development Plan Zedemar spoke of “Utilisation of existing support infrastructure facilities including waste and coal haul road systems, ROM stockpile pads, administration, workshop and bathhouse facilities, rail, power and potable water”.[95]  While the Minister was asked whether he had made any enquires of Zedemar about the matter, and replied that he had not,[96] no challenge was made to the assertion that Zedemar was so engaged.
  1. Again, in my view, the point is not now justicable.
  1. As to the second aspect I note that it was common ground on appeal that there was no positive obligation to mine the lease continuously.  How could there be given that the special conditions in cl 2.13 contemplated cessation of operations? So the mere cessation of the act of winning minerals does not automatically mean that the use ceases to be “bona fide and for the purpose for which the mining lease was granted.”  The primary judge’s response was:

“In those circumstances, where no positive obligation to mine the lease continuously exists, and economic circumstances have rendered mining uneconomical, at least for a period, it should not follow necessarily that the lease holder is not using the land for the purpose for which the mining lease was granted. It may be maintaining the condition of the mine in such a state that it is feasible to resume operations when economic conditions improve. One would expect that the system should be able to operate so as to accommodate at least a temporary cessation in operations when mining is not profitable, and their resumption in better times, without the leaseholder necessarily breaching its obligations under s 276(1)(a).”[97]

  1. I agree with that approach. Where one draws the line is, as his Honour remarked, a matter of “judgment and degree.”[98]
  1. That judgment was left to the Minister to make. Was it a perverse view that Zedemar be permitted to hold the lease in care and maintenance for the time it did?
  1. In considering that question I do not accept that the relevant time period in question is six years. That ignores the realities of the situation. I fully appreciate that the initial term was automatically extended until the date of renewal by s 286C(2) of the MRA.  But from April 2008 onwards Zedemar was waiting to find out whether its application for renewal was successful.  It still waits.  While there is no direct evidence what there is supports the inference that a great deal of money and effort had to be invested to make this mine a viable operation.  And presumably essential to those plans was the certainty of a substantial continuing term of the lease.
  1. I draw that inference from Mr Berding’s reference to the intended capital raising of $60 million[99] and Zedemar’s description of the proposed mining operation contained in its Development Plan attached to its application for renewal.[100]  Zedemar proposed to mine west and north of the existing mine development.  Hence new areas within the lease had to be opened up and prepared.  The Development Plan refers to clearing and mulching of existing vegetation; removal of all top soil; stockpiling and seeding that soil for future use in rehabilitation; re-instatement of a cross pit bridge, haul road system and in pit waste dumps to a “safe and suitable condition to allow access to the proposed truck and loader mining fleet”; removing significant quantities of water “before overburden removal and coal mining can commence in the upper benches”; and construction of a surface drain and sub-haul road culvert.[101]  Coal stockpile pads also needed to be established.[102]
  1. It seems to me to be entirely unreasonable in these circumstances to assert that Zedemar was in breach of the lease in continuing its care and maintenance and failing to launch this new development when its possession could be determined on a moments notice with the potential for a substantial loss of its capital investment. In any case Zedemar could not commence the proposed operation until it had its plans approved.[103]  And it seems uncontroversial that the winning of minerals from the existing mine was uneconomic.
  1. As to that latter point I cannot accept that it is a sensible interpretation of the obligations under the lease, a lease that is intended to be a commercial arrangement of value to the State, that uneconomic mining be required. I point out that such an approach would run counter to the objectives of the MRA one of which is that an appropriate financial return be achieved (s 2(e)).  As the second respondent points out presumably royalties would be required to be paid right up and until the venture failed.  It is not immediately apparent why it would be to the State’s advantage to drive miners into bankruptcy.  It is difficult to think that either the State or the lessee could reasonably have had that in contemplation when entering into the lease.
  1. Nor does it seem realistic that the holder of the lease surrenders the lease because international prices and other conditions make further mining uneconomic for at least a period in circumstances where millions of tonnes of winnable coal have been identified as present on the lease. That the holder should be permitted to explore the feasibility of accessing that coal and formulating a development plan is in accord with the objectives of the MRA and seems to be expressly recognised by special condition 2.13.
  1. Hence I cannot see how any criticism can be made of Zedemar once it had lodged its Development Plan and awaited approval. It might have received that approval at any time.
  1. No suggestion was made by those charged with investigating the matter on behalf of the relevant department that Zedemar lacked the capacity or will to pursue its plans. The “Renewal Assessment” prepared by the Mining Registrar expressly informed the Minister that “The holder has provided evidence that they have sufficient financial resources and mining equipment required to undertake mining operations for their mining project.”[104]  Given that lack of challenge it is unsurprising that there was no evidence before the Minister concerning Zedemar’s staff, skills or equipment.  No inference can be drawn from a failure to provide evidence where the party concerned is not told that there is any need to do so.  Nor was there any such challenge before the primary judge.  No reference was made by the primary judge to the relevant provision at all (s 286A(1)(f) MRA) as the appellants did not allege any failure on the part of the Minister to address its requirements.[105]
  1. In any case what s 286A(1)(f) of the MRA required was satisfaction on the part of the Minister that “the financial and technical resources available to the holder to carry on mining operations under the renewed lease are appropriate.”  He was not required to be satisfied that Zedemar had any staff, skills or equipment but that it had available to it the necessary resources to carry on mining operations.  We cannot know if we have all the evidence on the point, it not being previously in issue, but there was evidence to support the Mining Registrar’s assessment.  Mr Berding explained that Zedemar had negotiated a sale of its assets which included the subject lease, conditional on the renewal being approved, to a publicly listed company, OGL Resources Limited, for $40 million plus fully paid ordinary shares to a value of $10 million in that company.  The Minister had met with representatives of OGL Resources Limited and in his evidence before the primary judge said that the content and material presented to him at that meeting was relevant to his assessment.[106]  His statement of reasons set out that prior to that meeting OGL Resources Limited provided him with a briefing on their proposals to develop coal resources on the subject lease “to clarify their coal development objectives”.[107]  He was not asked to explain what that content and material may have been.  There was no cross examination of the Minister to the effect that on the basis of the material before him he could not have been satisfied as s 286A(1)(f) required nor was any submission to that effect made to the primary judge.
  1. But whether that evidence be sufficient or not is in my view irrelevant. No relevant challenge having been made before the primary judge it is too late now to do so.
  1. I note too that Zedemar is criticised for permitting MezurX Pty Ltd and Maxam Australia Pty Ltd to set up on the leased area. Zedemar not only held the mining lease over the relevant land but held the freehold title as well. As the primary judge pointed out[108] s 403(1)(e) of the MRA recognises the right of the owner of the land, with the permission of the lease holder, to “use and occupy” the surface area of the land the subject of the mining lease and the owner’s right to “erect any building or structure on or make any other improvement” to such land.  To assert that the owner of the land has exercised a right expressly recognised as continuing by the MRA and used the land in a manner not prohibited by the MRA takes the matter nowhere.
  1. I observe that while the issue was agitated before the primary judge it was not alleged on appeal that Zedemar was using the land for any purpose extraneous to that specified in the lease nor was it alleged on appeal that in permitting MezurX Pty Ltd and Maxam Australia Pty Ltd to occupy that land Zedemar was in breach of the lease or of the Act. 
  1. I note also that those businesses were seen by Zedemar as useful for the continuation of the mine. It said so in its application.[109]  MezurX was a drilling company and Maxam engaged in explosives work.  As the Minster said in his evidence he saw their activities as complementary to the operation of the mining lease.[110]  I cannot see how he was wrong in that view.
  1. In summary, the Minister’s decision was that in maintaining the existing infrastructure, useful to any person who might have the right to mine the lease in the future, from 1 September 2005 to 1 October 2008 when the lease expired - effectively a three year period – Zedemar was not in breach of the lease but was acting in accordance with the purpose for which the lease was granted. It is not irrelevant that at the time it acquired its interest the mine was already in care and maintenance as it had been apparently since mid 2003; that in the time it held its interest Zedemar had prepared and lodged a detailed plan of how it proposed to continue mining activities in the future – a necessary step to take and consistent with cl 2.13 of the special conditions; and that it was reasonable to await a response to its proposed mining development plan.
  1. It was essentially a matter of judgment whether in carrying out that care and maintenance Zedemar was fulfilling a purpose “necessary to effectually carry on that mining operation” and a matter of judgment whether the period in question was too long. In my view the Minister’s decision was not perverse, was in fact explicable and should not now be reviewed.
  1. I should make clear that the appellant advances a number of textual arguments to support their appeal. I have considered those arguments but in my view they do not assist the appellants.
  1. I would dismiss the appeal.
  1. I agree with White JA’s reasons on the disposition of the costs issue. In my opinion the appropriate orders for the disposal of the appeal should be:
  1. that the appeal be dismissed;
  1. that the application for leave to appeal the order for costs made below be refused;
  1. that the appellants pay the first respondent’s costs of the appeal.

Footnotes

[1] Department of Employment, Economic Development and Innovation Mining Lease Report, AR 96.

[2] AR 166.

[3] Reasons [4], AR 341.

[4] Reasons [19], AR 344.

[5] Amended Application for a Statutory Order of Review, dated 3 February 2012, AR 284-287.

[6] Unless otherwise indicated, all references to the Mineral Resources Act 1989 (Qld) are to Reprint 12E, effective 1 July 2011, of the Act.

[7] This is exhibited to the affidavit of Mr Thor Berding, a director of Zedemar.

[8] AR 121.

[9] Judicial Review Act 1991 (Qld), s 23(g).

[10] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

[11] (1999) 197 CLR 611 at 626-627 [41].

[12] [1986] AC 484 at 518. That passage was also quoted by this Court in Garland v Chief Executive, Department of Corrective Services [2006] QCA 568 at [39] per Chesterman J (as he then was).

[13] Below at [104].

[14] Appearing in two places at AR 112 (and following) and AR 147 (and following).

[15] AR 166.

[16] AR 275.

[17] AR 167; see s 286A(1)(a).

[18] AR 168; see s 286A(1)(g).

[19] AR 169; see s 286A(1)(g).

[20] AR 170; see s 286A(1)(e).

[21] AR 171; see s 286A(1)(b)(i).

[22] AR 172; see s 286A(1)(b)(i).

[23] A lease which the Minister did not recommend be renewed.

[24] AR 177A.

[25] AR 234-235.

[26] AR 262.

[27] Below at [128]-[144].

[28] AR 349; Order of Douglas J, dated 4 May 2012.

[29] AR 353; Notice of Appeal, dated 31 May 2012.

[30] Section 49(5).

[31] AR 350-351.

[32] Uniform Civil Procedure Rules, r 681.

[33] AR 81.

[34] Appellants’ “Amended Outline of Submissions: Costs”, filed 10 September 2012, paras 5-8.

[35] (1998) 193 CLR 72.

[36] At 98 [71].

[37] [1994] 1 Qd R 343.

[38] At 355.

[39] [1994] QCA 232.

[40] At 12.

[41] The Minister was named as such as the first respondent, although the office is not incorporated; cf Kerr v Commissioner of Police [1977] 2 NSWLR 721.  No party raised any issues about this.

[42] MRA, s 286A(1)(a)(i).

[43] MRA, s 276(1)(b), applied to the lease by cl 3(1)(b) of the Second Schedule of MRA as originally enacted (emphasis added).

[44] AB 206 and 262.

[45] AB 133.

[46] Although the terms of the section applied it only to leases over Crown Land, s 109(1) of the Mining Act 1968-1986, as inserted by the Mining Act Amendment Act 1971, applied it to private land as if the land were Crown Land.

[47] Section 1.5 and First Schedule as originally enacted.

[48] Section 1.7 and Second Schedule as originally enacted.

[49] Mineral Resources Amendment Act 1995, s 5(2).

[50] Mineral Resources and Other Legislation Amendment Act 2006, s 6(2).

[51] Emphasis in the submission.

[52] Sections 232(2), 235(1), 236(1), 248(2)(b), 249(2)(b), 286A(1)(b)(ii), 298(4), 308(1)(a).

[53] Paragraph [50].

[54] Citing “Hansard, 7 September 1989, p 561”.

[55] Paragraph [55].

[56] MRA, s 1.11 as originally enacted (renumbered as s 10).

[57] AB 166.

[58] AB 262-3.

[59] AB 271 (“Findings of fact”).

[60] Wright & Bright v The Minister for Employment, Skills and Mining [2012] QSC 112.

[61] Ibid at [8].

[62] Ibid, at [9].

[63] To which the Minister had regard: AB 271.

[64] AB 234 – 235.

[65] [2012] QSC 112 at [9].

[66] AB 235.

[67] AB 275.

[68] AB 177A.  Evidence of these matters was led by the Minister without objection, although they had not been before him at the time of his decision.

[69] Ibid.

[70] Pursuant to MRA, s 318ES.

[71] AB 212.

[72] AB 206, para 15(a).

[73] AB 220.

[74] Although at [27] his Honour recorded Zedemar's submission based on s 234(1) of the MRA.

[75] The initial term was automatically extended until the date of renewal by s 286C(2) of the MRA.

[76] Paragraph [52].

[77] In the court below the trial judge did not find that Zedemar carried out these activities and, in my judgment, the evidence indicates that they occurred before or at the very start of the period of Zedemar's tenure.

[78] Citing Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285; Ryde Municipal Council v Macquarie University (1978) 139 CLR 633; Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1.

[79] MRA, s 309.

[80] AB166.

[81] As Fryberg J has pointed out the lease was granted under the Mining Act 1968 which was repealed by the MRA but the transitional provisions include cl 3(1A) of the Second Schedule to the MRA as originally enacted which has the effect that conditions imposed  under the MRA are incorporated into such leases: “(1A) The holder of a lease referred to in subclause (1)(a) [the subject lease is one such lease] immediately prior to commencement of this Act shall hold the mining lease subject to the provisions of, and the conditions imposed under, this Act and all special covenants and special conditions to which the lease was subject (including special covenants and conditions under section 28(2)(b) or Part 7 of the Mining Act 1968) shall be deemed to be conditions of the mining lease …”.

[82] (1999) 197 CLR 611 at [41].

[83] [1986] AC 484 at 518.

[84] Cf. s 234(1) MRA which provides: “The Governor in Council may grant and cause to be issued to an eligible person or persons, a mining lease for all or any of the following purposes-

(a)to mine the mineral or minerals specified in the lease and for all purposes necessary to effectually carry on that mining:

(b)such purposes, other than mining, as are specified in the mining lease and that are associated with, arising from or promoting the activity of mining.”

[85] Cl 2.7 of the Special Conditions of Lease at AB 150.

[86] Cl 2.13 of the Special Conditions of Lease at AB 151 – a clause that it would seem Zedemar’s predecessor in title breached, or at least there is no evidence of any compliance within 90 days.

[87] Cl 2.14 of the Special Conditions of Lease at AB 151.

[88] AB 166 – my emphasis.

[89] AB 177A (part of Ex GM 4 to the affidavit of Ronald Gerald Mackie filed 13 February 2012).

[90] See office memo of 10th January 2011 at AB 234 ex SJH-8 to the affidavit of the first respondent.

[91] AB 262-263 para 4 – emphasis in the original (presumably a heading).

[92] Ibid para 10.

[93] See T1-10/15-25 of the submissions on appeal  and the appellants’ written outline on appeal at para 30 – no such submission appears in the written outline before the primary judge.

[94] AB 290 at para 20d.

[95] AB 178 at para 1.4.

[96] AB 15/40-45.

[97] Wright & Bright v The Minister for Employment, Skills and Mining [2012] QSC 112 at [31].

[98] Ibid at [32].

[99] AB 85 at para 15.

[100] AB 175 – 199.

[101] See AB 181 para 2.5.

[102] AB 181 at para 2.3.

[103] See cll 2.2 and 2.3 of the special conditions at AB 113-114.

[104] AB 263 at para 9.

[105] The appellants made express reference to subparagraphs 286A(1)(a), (b) and (g) but not (f) in their written submissions to the primary judge – see AB 289 at para 13.

[106] AB 16/25-35; and see the Minister’s affidavit at AB 204 para 9.

[107] AB 271 para 17e.

[108] At [22].

[109] AB 182 at para 2.6 included in its list of the “major facilities required to support mining operations”.

[110] AB 14/55.

Close

Editorial Notes

  • Published Case Name:

    Wright & Anor v Minister for Employment, Skills and Mining for the State of Queensland & Ors

  • Shortened Case Name:

    Wright v Minister for Employment, Skills and Mining for the State of Queensland

  • MNC:

    [2013] QCA 141

  • Court:

    QCA

  • Judge(s):

    White JA, Fryberg J, McMeekin J

  • Date:

    31 May 2013

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2012] QSC 112 04 May 2012 -
Appeal Determined (QCA) [2013] QCA 141 31 May 2013 -
Application for Special Leave (HCA) File Number: B34/13 27 Jun 2013 -
Special Leave Refused [2014] HCATrans 18 14 Feb 2014 -

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)