Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QLC
  3. 2015
  4. Springsure Creek Coal Pty Ltd v Sullivan - [2015] QLC 51

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Springsure Creek Coal Pty Ltd v Sullivan[2015] QLC 51

Springsure Creek Coal Pty Ltd v Sullivan[2015] QLC 51

LAND COURT OF QUEENSLAND

CITATION:

Springsure Creek Coal Pty Ltd v Sullivan & Ors [2015] QLC 51

PARTIES:

Springsure Creek Coal Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed)

(applicant)

 

v

 

Kenneth Sullivan, Sylvia Sullivan, Arcturus Downs Limited, Golden Triangle Community Group, Springton Pty Ltd and John Sullivan

(respondents)

and

Chief Executive, Department of Environment and Heritage Protection

(statutory party)

FILE NOs:

MRA 116-14, EPA 117-14, MRA 138-14, MRA 139-14, MRA 140-14, MRA 141-14, MRA 196-14, EPA 197-14, MRA 412-14

DIVISION:

General Division

PROCEEDING:

Applications for declaration of a stay

DELIVERED ON:

17 December 2015

DELIVERED AT:

Brisbane 

HEARD ON:

6 November 2014, 15 May and 11 August 2015

Submissions closed 9 October 2015.

HEARD AT:

Brisbane

MEMBER:

PA Smith

ORDERS:

1. The objection proceedings under the MRA are stayed by the operation of s 440D of the Corporations Act.

2. The objection proceedings under the EP Act are stayed by the operation of s 440D of the Corporations Act.

CATCHWORDS:

MINING – application for mining leases and environmental authorities – whether application should be stayed by virtue of the miner going into administration under Part 5.3A Corporations Act 2001 (Cth) – examination as to whether application/objections hearing is a “proceeding”, in a “court”, “against a company, or its property”

MINING – application for compensation – whether compensation application should be stayed by virtue of the miner going into administration under Part 5.3 A Corporations Act 2001 (Cth) – examination as to whether application is a “proceeding”, in a “court”, “against a company, or its property”

STATUTORY INTERPRETATION – Examination of s 440D Corporations Act 2001 (Cth) – applicability to mining application and environmental authority – whether mining application is a “proceeding”, in a “court”, “against a company, or its property”

STATUTORY INTERPRETATION – Examination of s 440D Corporations Act 2001 (Cth) – applicability to mining compensation application – whether mining compensation application is a “proceeding”, in a “court”, “against a company, or its property”

Acts Interpretation Act 1901 (Cth), s 15AA

Corporations Act 2001 (Cth), Part 5.3A, ss 9, 58AA, 435C(2), 440D, 471B, 500(2)

Environmental Protection Act 1994

Land Court Act 2000, s 4

Land Court Rules 2000

Mineral Resources Act 1989, ss 269(4), 279

Mining Act 1968

Mining Act 1978 (WA), s 102(5)(a)

Aquila Resources Ltd v Pasminco Ltd (Administrators Appointed) (2002) 168 FLR 85

Arco Resources Ltd & Anor v Commissioner of Stamp Duties [1996] 1 QdR 1

Arpic Pty Ltd v Austin Australia Pty Ltd (2004) 49 ACSR 71

Arogen v Leighton [2013] NSWSC 1099

BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors [2015] QSC 107

Chief Executive, Queensland Health v Jattan [2010] QCA 359

Foxcroft v The Ink Group Pty Ltd (1994) 15 ACSR 203

Greenaways Australia Pty Ltd v CBC Management Pty Ltd [2004] NSWSC 1186

MG Corrosion Consultants Pty Ltd v Gilmour (2012) 202 FCR 354

Owen v Menzies (2012) QCA 170

Pasdale v Concrete Constructions (1995) 19 ACSR 693

Re His Worship Mr Calder SM:  ex parte Gardner (1999) 20 WAR 525

Rodgers v Rally [2000] VSC 570

Shields Contracting (In Liq) v Glintan Pty Ltd [2005] WAMW 5

Uvanna Pty Ltd & Anor v Thang & Ors (1997) 72 FCR 202

Van Blitterswyk v Sons of Gwalia Ltd & Ors [2005] WAMW 06

Van Blitterswyk v Sons of Gwalia Ltd & Ors [2005] WAMW 26

APPEARANCES:

Ms KE Downes QC and Mr S Eggins of Counsel for the applicant

Ms CA Skennar of Counsel for the respondents, Arcturus Downs Limited and Golden Triangle Community Group

Mr D Harris, solicitor, for respondents, Kenneth Sullivan, Sylvia Sullivan, Springton Pty Ltd and John Sullivan

Mr S Barclay, legal officer for the statutory party

SOLICITORS:

Hopgood Ganim for the applicant

Alroe & O'Sullivan for the respondents, Arcturus Downs Limited and Golden Triangle Community Group

Donnie Harris Law for the respondents, Kenneth Sullivan, Sylvia Sullivan, Springton Pty Ltd and John Sullivan

In House Legal, Department of Environment and Heritage Protection for the statutory party

The Application

  1. [1]
    Springsure Creek Coal Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (Springsure) has sought the grant pursuant to the provisions of the Mineral Resources Act 1989 (the MRA) of two mining lease applications (MLA), and associated Environmental Authorities (EAs) under the Environmental Protection Act 1994 (the EP Act) and for the determination of compensation payable to landholders subsequent to the grant of the MLAs. The MLAs are numbered 70486 and 70502.
  2. [2]
    There were objections made to the MLAs and the EAs. Additionally, there are requests for determinations of compensation with respect to the MLAs before the Court. The parties fall into two groups. Firstly, there are those represented by Ms Skennar, being Arcturus Downs Limited and Golden Triangle Community Group. Arcturus Downs Limited also has a claim for compensation. For ease of reference, I will refer to this group as Arcturus. The second group is represented by Mr D Harris. Firstly, there is Mr John Sullivan who has made objections and also has a claim for compensation. Additionally, Kenneth Sullivan and Sylvia Sullivan and Springton Pty Ltd also have claims for compensation. I will refer to this group as Sullivan.
  3. [3]
    As there are objections to the EAs pursuant to the EP Act, the statutory party is also a party in the EA objections before the Court.
  4. [4]
    On 22 September 2014 Administrators were appointed to Springsure under Part 5.3A of the Corporations Act 2001 (Cth) (the Corporations Act). On 21 October 2014, Receivers and Managers were also appointed to Springsure.
  5. [5]
    The key question for the Land Court to consider is whether the MRA and EP Act objection matters and the compensation matters are caught by s 440D of the Corporations Act. If they are, then those matters are stayed unless the Administrators consent to the matters continuing or leave of the Supreme Court or the Federal Court is obtained.
  6. [6]
    This matter is unusual as it is not, as such, an application by Springsure for a stay. As Ms Downes QC put it for Springsure, the matters are in fact either stayed or they are not stayed under the Corporations Act.[1] In practical terms, therefore, Springsure is effectively seeking a declaration from this Court that each of the matters currently before the Court are stayed in light of the operation of s 440D of the Corporations Act.
  7. [7]
    Section 440D of the Corporations Act provides as follows:

“Stay of proceedings

  1. (1)
    During the administration of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except:
  1. (a)
    with the administrator's written consent; or
  1. (b)
    with the leave of the Court and in accordance with such terms (if any) as the Court imposes.
  1. (2)
    Subsection (1) does not apply to:
  1. (a)
    a criminal proceeding; or
  1. (b)
    a prescribed proceeding.”
  1. [8]
    It is common ground between the parties that s 440D(2) does not apply to the current matters as they are neither criminal proceedings nor prescribed proceedings under the Corporations Act.
  2. [9]
    It is also clearly the case that the provisions of the Acts Interpretation Act 1901 (Cth) apply. Section 15AA of the Acts Interpretation Act provides as follows:

“Interpretation best achieving Act's purpose or object

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.”

  1. [10]
    Part 5.3A of the Corporations Act provides for the regime of Company Administration. The purpose of this regime is detailed in s 435A of the Corporations Act, which provides as follows:

“Object of Part

The object of this Part is to provide for the business, property and affairs of an insolvent company to be administered in a way that:

  1. (a)
    maximises the chances of the company, or as much as possible of its business, continuing in existence; or
  1. (b)
    if it is not possible for the company or its business to continue in existence--results in a better return for the company's creditors and members than would result from an immediate winding up of the company.”
  1. [11]
    In usual circumstances, there are three possible outcomes to an Administration as provided for in s 435C(2) of the Corporations Act. These three outcomes can be described as follows:

“When administration begins and ends

  1. (1)
    The administration of a company:
  1. (a)
    begins when an administrator of the company is appointed under section 436A, 436B or 436C; and
  1. (b)
    ends on the happening of whichever event of a kind referred to in subsection (2) or (3) happens first after the administration begins.
  1. (2)
    The normal outcome of the administration of a company is that:
  1. (a)
    a deed of company arrangement is executed by both the company and the deed's administrator; or
  1. (b)
    the company's creditors resolve under paragraph 439C(b) that the administration should end; or
  1. (c)
    the company's creditors resolve under paragraph 439C(c) that the company be wound up.
  1. (3)
    However, the administration of a company may also end because:
  1. (a)
    the Court orders, under section 447A or otherwise, that the administration is to end, for example, because the Court is satisfied that the company is solvent; or
  1. (b)
    the convening period, as fixed by subsection 439A(5), for a meeting of the company's creditors ends:
  1. (i)
    without the meeting being convened in accordance with section 439A; and
  1. (ii)
    without an application being made for the Court to extend under subsection 439A(6) the convening period for the meeting; or
  1. (c)
    an application for the Court to extend under subsection 439A(6) the convening period for such a meeting is finally determined or otherwise disposed of otherwise than by the Court extending the convening period; or
  1. (d)
    the convening period, as extended under subsection 439A(6), for such a meeting ends without the meeting being convened in accordance with section 439A; or
  1. (e)
    such a meeting convened under section 439A ends (whether or not it was earlier adjourned) without a resolution under section 439C being passed at the meeting; or
  1. (f)
    the company contravenes subsection 444B(2) by failing to execute a proposed deed of company arrangement; or
  1. (g)
    the Court appoints a provisional liquidator of the company, or orders that the company be wound up; or
  1. (h)
    management of the general insurer vests in a judicial manager of the company appointed by the Federal Court under Part VB of the Insurance Act 1973 or Part 8 of the Life Insurance Act 1995.
  1. (4)
    During the administration of a company, the company is taken to be under administration.”
  1. [12]
    It is an important role of an Administrator to conduct investigations into the company in order to form an opinion as to which of these three alternatives would be in the best interests of the company’s creditors.[2] It is for this reason that Part 5.3A of the Corporations Act contains a number of provisions that impose a moratorium with respect to certain aspects of a company’s affairs during the period of the Administration. Were it not so, it would clearly be difficult for the Administrator to perform the task of making their investigations as to whether the company should enter into a Deed of Arrangement, hand control back to the Company Directors or have the Company wound up.
  2. [13]
    One of the provisions that applies a moratorium is s 440D of the Corporations Act. The purpose of this provision, and other related provisions, of the Corporations Act was considered by Justice Young in the case of Foxcroft v The Ink Group Pty Ltd.[3] His Honour had this to say:[4]  

“The provisions of Pt 5.3A as exemplified in sections such as 437C 437F 440C and 440D provide that there shall be a complete freeze of proceedings against the company during the administration so that the administrator can have time to assess the situation, and the company’s creditors have an opportunity to work out the net position and adopt an attitude under s 439C which will be in their common interest. To allow one creditor or potential creditor to proceed would not only take the administrator’s attention from what he needs to do under the division in a relatively short period of time, but it would also involve costs in running the legal action on behalf of the administrator, as well as perhaps giving the claimant some advantage over the other creditors or potential creditors.”

  1. [14]
    In like manner, Justice Barrett stated in Greenaways Australia Pty Ltd v CBC Management Pty Ltd:[5]

“The object of the provisions … is to create a screening mechanism to ensure that the proceedings do not interfere unduly with the due progress of the administration.”

  1. [15]
    Justice Warren noted in the case of Rodgers v Radly[6] that:

“The purpose of these provisions is to ensure that the role of the administrator or the liquidator, as the case may be, is not frustrated or interfered with or distracted by other matters such as legal proceedings.”

  1. [16]
    I also note the comments made by Sanderson M in Aquila Resources Ltd v Pasminco Ltd (Administrators Appointed)[7] as follows:

“In my view, it is proper to look at what is intended by the provisions of s 440D. An administrator appointed to assess the financial position of a corporation should do so unhindered by the need to defend legal proceedings.”

  1. [17]
    In her primary submissions, Ms Downes QC conveniently summarised the provisions of s 440D of the Corporations Act into four key elements as follows:[8]

“17. For section 440D of the Corporations Act to apply to a proceeding, that proceeding must be:

  1. (a)
    a ‘proceeding’, as that term is used in the section (Element 1);
  1. (b)
    ‘in a court’ (Element 2)
  1. (c)
    either one (or both) of the following:
  1. (i)
    a proceeding against the company (Element 3A); or
  1. (ii)
    a proceeding in relation to any of the company’s property (Element 3B)”
  1. [18]
    Ms Skennar, Mr Harris and Mr Barclay for their respective clients have essentially adopted in their submissions an analysis of the various elements referred to by Ms Downes QC. For consistency, I will therefore provide my own analysis of the four elements identified by Ms Downes QC.

Summary Position of Springsure and the Statutory Party

  1. [19]
    In essence, it is the submission of both Ms Downes QC for Springsure and Mr Barclay for the statutory party that all relevant elements of s 440D of the Corporations Act are met by the current matters before the Court, with the result that all such matters are therefore stayed pursuant to the operation of s 440D of the Corporations Act.

Summary Position of Arcturus and Sullivan

  1. [20]
    There are some differences, including of emphasis, in the submissions of Ms Skennar for Arcturus and Mr Harris for Sullivan. For instance, Mr Harris concedes that the provisions of s 440D of the Corporations Act apply to the compensation matters currently before the Court.
  2. [21]
    However, both Ms Skennar and Mr Harris submit that the core elements of s 440D of the Corporations Act have not been met as regards the objection matters pursuant to the MRA and the EP Act. Specifically, they submit that Element 1 is not satisfied because the objection matters are not proceedings as contemplated by s 440D but are in fact administrative matters. They also contend that the Land Court, whilst a Court for the purposes of the compensation matters, is not a Court as that phrase is comprehended by s 440D of the Corporations Act as, while the Land Court retains the appearance of a Court, in performing its administrative function under the objection matters it is properly classified as part of the administrative process and not a Court making a final determination.
  3. [22]
    Ms Skennar and Mr Harris also contend that the objection matters cannot be properly classified as proceedings against the Company but are rather a result of the applications for the MLAs and the EAs made by Springsure. They also contend that the objection matters do not relate to any of Springsure’s property.
  4. [23]
    I now turn to examine in detail each of the Elements of s 440D of the Corporations Act.

Element 1 – Are the matters proceedings?

  1. [24]
    The question as to whether or not the matters currently before the Land Court can be considered as “proceedings” was impacted greatly by the decision of Justice P McMurdo in the Supreme Court of Queensland earlier in this year in the case of BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors.[9] In light of the decision in BHP v Isdale, the parties were invited by the Court to provide additional submissions as to the impact of that decision, if any, on the matters currently to be determined by me. Both Ms Skennar and Mr Harris submit that BHP v Isdale clearly support their proposition that the objection matters are not proceedings for the purposes of s 440D of the Corporations Act.
  2. [25]
    Ms Downes QC and Mr Barclay concede that the finding of his Honour in BHP v Isdale was that objection matters referred to the Land Court are not proceedings for the purposes of the Land Court Rules. However, Ms Downes QC and Mr Barclay point out that McMurdo J also noted that the word “proceeding” could have a different meaning in different contexts. They went on to submit that the finding by McMurdo J that objection referrals are not proceedings for the purposes of the Rules of the Land Court have no impact on a finding that such objection proceedings are proceedings for the purposes of s 440D of the Corporations Act.
  3. [26]
    The parties have collectively referred to different aspects of McMurdo J’s decision to support their contentions. Given the extensive nature of his Honour’s consideration of the meaning of the word “proceedings”, I consider it appropriate that I provide an extensive quotation from Justice McMurdo’s reasoning in BHP v Isdale. His Honour had this to say:[10]

“A ‘proceeding’ in the Land Court?

[28]  Essential to BHP’s argument is the contention that the two applications by BHP, as referred to the Land Court, were in neither case a ‘proceeding in the court’ as referred to in r 13. If that contention is accepted, it would follow that neither r 4(1) nor r 13 of the LCR would apply and therefore Chapter 7 of the UCPR would not apply.

[29] As the Land Court member noted, the Acts Interpretation Act provides a relevant definition of ‘proceeding’. But it does so by the use of the word ‘proceeding’ itself, so that in the present case the definition does not assist.

[30] The traditional meaning of the word was discussed by O'Loughlin J in Forrest v Kelly as follows:

‘Historically, the word ‘proceedings’ has meant the ‘invocation of the jurisdiction of a court by process other than writ’: see Herbert Berry Associates Ltd v Inland Revenue Commission [1977] 1 WLR 1437 at 1446; [1978] 1 All ER 161 at 169-170, per Lord Simon of Glaisdale; or ‘any application by a suitor to a court in its civil jurisdiction for its intervention or action’: see Cheney v Spooner (1929) 41 CLR 532 at 538-539, per Starke J.”

[31]  But the word has a broad range of possible meanings. In Blake v Norris, Smart J said that the word “proceeding” was:

‘capable of such a variety of meaning that dictionary definitions as to its ordinary or natural meaning are not of much use.’

And in Corporate Affairs Commission (NSW) v Prime Commodities Pty Ltd, Young J said that although:

‘proceeding’ usually involves a lis between parties, to be heard before a third party, usually a judge or arbitrator … this is not necessarily so.’

Each of those passages was cited with apparent approval by Holmes JA in R v Deemal.

[32] Therefore, the present matter before the Land Court could be described as a proceeding according to at least one ordinary meaning of the word.

[33]  Indeed s 185(4) of the EPA provides that ‘[t]he referral starts a proceeding before the Land Court …’ and s 186 refers to ‘the Land Court proceeding’.

[34]  The administrative nature of the function exercised by the Land Court in the present case (or under corresponding laws in other jurisdictions) has been important in the reasoning in several judgments which have concluded that there was no ‘proceeding’ in the relevant sense. One of those cases is the decision of the Land Appeal Court in Dunn v Burtenshaw. In that case, the Land Court had made a recommendation that two mining leases be granted, after a hearing under s 268 of the MRA. An objector, Mr Dunn, lodged an appeal in respect of that recommendation. The question was whether this was a decision for which there was a right of appeal. Section 64 of the LCA provides that ‘a party to a proceeding in the Land Court may appeal to the Land Appeal Court against all or part of the decision of the Land Court’. The Land Appeal Court held that the recommendation was not a ‘decision’ of the ‘sort contemplated by s 64 of the LCA as it is not a proceeding but rather than administrative step consequent upon a statutorily prescribed inquiry conducted by the learned Land Court member’.

[35]  Rules 47 and 48 of the LCR provide for appeals from the Land Court to the Land Appeal Court in a ‘proceeding’. Consistently with Dunn v Burtenshaw, those rules do not apply to matters of this kind and the word ‘proceeding’, at least in rules 47 and 48, has the limited meaning for which BHP contends. On that premise, BHP argues that the word should not be given a different meaning in other rules particularly r 13 of the LCR.

[36]  Another case confining the meaning of ‘proceeding’ in the present context was the decision of Owen AJ (as he then was) in Lougher v Bender. In that case, a mining warden was obliged to conduct a hearing and to forward a report and recommendation to the relevant Minister as to an alleged non-compliance with the conditions of a mining lease. Owen AJ said:

‘It is obvious from a consideration of the Act that the warden has to perform administrative as well as judicial functions and there is a clear distinction between a ‘warden’ and a ‘Warden’s Court’.

…

In my opinion an enquiry into a complaint under s 124A is not such a ‘proceeding’ as is contemplated by s 168. It is not a proceeding in a warden’s court, nor is there any such determination as is mentioned in s 168. It seems to me that in acting under s 124A the warden is merely exercising administrative functions. He is holding an enquiry as an administrative officer. He makes no determination on that enquiry, but merely makes a recommendation and report, which the Minister is not bound to accept. If the complainant or the lessee is dissatisfied by anything done by the warden in the course of those proceedings, his only remedy is, I think by an appeal to the Minister in the manner provided by the section.’

[37]  It must be kept in mind that the Land Court has what is described as a substantive jurisdiction according to s 363 of the MRA as follows:

‘363   Substantive jurisdiction

  1. (1)
    The Land Court shall have jurisdiction to hear and determine action, suits and proceedings arising in relation to prospecting, exploration or mining or to any permit, claim, licence or lease granted or issued under this Act or any other Act relating to mining.
  1. (2)
    Without limiting the generality of subsection (1), the Land Court shall have jurisdiction to hear and determine actions, suits and proceedings with respect to -

…

  1. (3)
    The Land Court also has jurisdiction to hear and determine actions, suits and proceedings with respect to any demand for debt or damages arising out of or made in respect of -
    1. the carrying on of prospecting, exploring or mining;
    2. any agreement  relating to prospecting,  exploring or mining.’

Therefore, BHP’s argument would not deprive the LCR of an extensive operation even in respect of matters arising from the MRA. It was submitted for the respondents that if r 13 of the LCR does not apply in this context, then none of the LCR would apply leading to an absurd result because the LCR is ‘a legislative instrument that is essential to the efficient and proper functioning of the Land Court’ in such matters. This assertion is unsubstantiated and was not developed by reference to any other rule of the LCR.

[38] The provisions of the LCR relating to the starting of a proceeding are difficult to reconcile with the view that the present matters are a ‘proceeding’. Rule 7 provides that a proceeding is to be started by filing an originating process in the registry. Rule 8 provides for the content of that originating process and rules 9 and 10 require, in effect, the applicant or appellant (or a lawyer or agent for them) to complete and sign the originating process. Further, r 8 requires the originating process to state the orders or other relief sought in the proceeding. The applications by BHP, of course, state the outcomes which it seeks. But that is different from a statement of the orders or other relief to be sought from the Land Court. There is no document of that kind, because the function of the Land Court here is not to make orders or to grant other relief. It is an advisory function. Each of the applications reach the Land Court by a referral by the relevant agency rather than by anything filed by BHP as the applicant. It therefore seems that the word “proceeding” in rules 7-11 cannot extend to a matter which has been referred to the court under the subject provisions of the MRA and EPA. The respondents submitted that the applications which were referred to the Land Court in this case were in fact commenced by an ‘originating process’ under the LCR. That submission cannot be accepted. The present matters are before the Land Court because they were referred there by the chief executive under s 265 of the MRA, the administering authority under s 185 of the EPA. An originating process must be served by the party which files the document, according to r 11 of the LCR. But with a referral under s 265 of the MRA, the Land Court must fix a date for the hearing and then give written notice to the chief executive, the applicant and each objector. Under s 187 of the EPA, the administering authority must give to the applicant and any objector a copy of the notice of referral.

[39] There is no apparent basis for the word ‘proceeding’ being used in a different sense in r 13 of the LCR from its use in rules 7-11. Instead, the provisions of Chapter 7 of the UCPR do not seem to be readily applicable to matters of the present kind.

[40]  Rule 209 of the UCPR provides that Part 1 of Chapter 7 applies only to certain kinds of proceeding. There is a relevant distinction between a proceeding started by or which continues as if started by claim and a proceeding started by application. Rule 4(2) of the LCR does provide that ‘an originating process under these rules is to be treated as if it were a claim under the uniform rules’. But in the present matters, there is no originating process in the sense in which that term is used in the LCR.

[41]  There is a further difficulty in the notion that the duty of disclosure imposed by r 211 of the UCPR is to be imposed in the present context. The content of that duty is defined by what is ‘in issue’. A party must disclose a document which is directly relevant to an allegation in issue in the proceedings, or if there are no pleadings, directly relevant to a matter in issue in the proceeding. In adversarial civil litigation, it is for the parties to determine what should constitute the matters in issue. In turn, that leaves it to the parties to effectively define the scope of the duty of disclosure because if an allegation by one party is admitted by the other, it is not a matter in issue.

[42]  But in referrals to the Land Court of the present kind, the scope of the court’s factual inquiry is not defined by the parties. Their respective arguments and the evidence which they present are to be considered. But the Land Court must have regard to considerations which extend beyond the respective interests of the applicant and the objectors. In particular, it must consider the public interest.

[43]  In Sinclair v Mining Warden at Maryborough, the High Court held that a writ of mandamus should be granted and directed to a mining warden who had erred in a case of the present kind. That was an application for a mining lease for which the appellant was an objector. One error of the warden was found to be in his failure to consider whether the granting of the application would prejudicially affect the public interest. Barwick CJ said that the warden was bound to consider that matter ‘irrespective of the interests of the objectors or their number and, indeed, irrespective of the existence of an objection on [the public interest] ground’.

[44]  Therefore the process of disclosure under Chapter 7 of the UCPR is seemingly inapt, where the Land Court is not asked to adjudicate upon matters in issue but instead to provide an advice to an administrative decision maker. This fortifies the view that the word “proceeding” in rules 4 and 13 of the LCR does not extend to these applications presently before the Land Court.

[45]  For these reasons, I conclude that rules 4 and 13 of the LCR do not apply, so that Chapter 7 of the UCPR do not apply to these matters in the Land Court. The first respondent thereby erred in law.”

  1. [27]
    I have no doubt that, on its proper construction, BHP v Isdale has found that objection matters before the Land Court are matters of an administrative nature as the Land Court does not make a final determination. However, I agree with the reasoning of the applicant that such finding relates to the question of “proceedings” pursuant to the Land Court Rules and is not of itself referrable to the question of proceedings pursuant to s 440D of the Corporations Act.
  2. [28]
    As both Springsure and the statutory party have pointed out, the meaning of “proceeding” may vary from statute to statute and in each case is dependent upon the statutory context and the purpose of the relevant legislation. This proposition was clearly put by Boddice J, with whom Holmes and White JJA agreed, in the case of Chief Executive, Queensland Health v Jattan[11] where his Honour had this to say at [23]:

“The dictionary definition of ‘proceeding’ includes both a narrow and a wider definition. As the word ‘proceeding’ is capable of such a variety of meanings, its meaning in any particular case is to be derived from the statutory context and objects of the legislation in question.”

  1. [29]
    Given my earlier comments as to the objects of Part 5.3A of the Corporations Act in general and s 440D in particular, in my view a wide definition of “proceeding” is appropriate when considering whether or not Land Court objection matters are proceedings for the purposes of the Corporations Act. This is consistent with the reasoning of Justice Barker in MG Corrosion Consultants Pty Ltd v Gilmour.[12] His Honour had this to say at [6]:

“The term ‘proceeding’ does not appear to be defined relevantly in the Corporations Act but it is defined in s 4 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to mean ‘a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the court of, or in connexion with, a proceeding, and also includes an appeal’. In my view, in the present circumstances, the FCA Act definition of ‘proceeding’ should be adopted for the purposes of the Corporations Act, not on the basis that the FCA Act definition applies as a matter of incorporation, but rather on the basis that the broad definition given in the FCA Act accords with the ordinary meaning of the word and there is nothing in the context of the Corporations Act to suggest it has a different or narrower meaning of the word for the purposes of s 440D.”

  1. [30]
    I can see no good reason for the term “proceeding” to be limited to proceedings which are of a judicial rather than an administrative nature. Clearly, in my view, the term “proceeding” does not of itself exclude proceedings of an administrative nature. The proper meaning to be given to the word “proceeding” will always depend on the context in which the word is used.
  2. [31]
    There is clear authority that some Court proceedings are, by their nature, of an administrative character. As Ipp J said in the case of Re His Worship Mr Calder SM:  ex parte Gardner:[13]

“… it is helpful at the outset to be reminded of the general principle expressed by Gibbs J in Amman v Wegener (1972) 129 CLR 415 (at 436), namely:

‘It does not necessarily follow that because a Magistrate is not exercising judicial functions he cannot be said to set as a court. In Royal Aquarium & Summer & Winter Garden Society Ltd v Parkinson (1892) 1 QB 431 at 446-447, Fry LJ said:

‘There are many other courts which, though not courts of justice are nevertheless courts according to our law. There are, for instance, courts of investigation, like the coroner’s court.’

A further (and well-known) example of a court performing functions regarded as being ‘of a purely administrative nature’ is a magistrate’s court conducting a preliminary hearing:  Grassby v The Queen (1989) 168 CLR 1 per Dawson J (at 11).”

  1. [32]
    I am satisfied that it is appropriate to classify these matters as proceedings for the purposes of s 440D of the Corporations Act by applying a broad interpretation to the use of the word “proceedings” in the Corporations Act.

Element 2 – Are the matters in a court?

  1. [33]
    I have been called upon at a number of conferences in recent years to explain what nature of entity the Land Court actually is. For instance, in my paper to a land access conference in August 2014 I had this to say:[14]

“In order to understand the role that the Land Court of Queensland plays in Queensland Land Access matters, it is first necessary to understand just what the Land Court of Queensland is. This question is not as easy as it seems.

As can be found by reference to various scholarly works, conference papers, and in the Annual Reports of the Land Court of Queensland, the Land Court is the second oldest court in Queensland, having been first established in 1897 to deal mainly with issues relating to Crown leasehold land. As the years and decades have passed, so to has the role and jurisdiction of the Land Court changed.

The most recent legislation establishing the Land Court is the Land Court Act 2000. Section 4 of the Land Court Act is of particular interest. It provides as follows:

‘4 Establishment of Land Court

  1. (1)
    A specialised judicial tribunal called the Land Court is established.
  1. (2)
    The court is a court of record.
  1. (3)
    The court has a seal that must be judicially noticed.’

So, in short, the Land Court is a specialised judicial tribunal and court of record. What does that mean?

I could easily fill the conference paper with legal reasoning as to the question of the status of what the Land Court actually is, and what the proper way to refer to the persons who preside on the Land Court is.

The position has been made clearer by the relatively recent Court of Appeal decision in Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen [2012] QCA 170. Part of the decision in Owen related to the question as to whether or not the Queensland Civil and Administrative Tribunal (QCAT) can be characterised as a court under chapter III of the Commonwealth Constitution. The Court of Appeal found that QCAT is a court of Queensland under section 77(iii) of the Commonwealth Constitution. The reasoning of the Court of Appeal gives the strongest indication that, similarly understood, the Land Court of Queensland is also a court of Queensland for the purposes of chapter III of the Commonwealth Constitution.

Next comes the vexed question as to what a person appointed to the Land Court should be called. The question is easily answered by reference to the form of address during formal court proceedings which, by way of Practice Direction, is to ‘your Honour’. The more complicated question that I am regularly asked is ‘so you are a judge?’. To make matters as clear as possible, I should state categorically that my title does not include that of Judge, as in Judge Smith, but nevertheless I am part of the Queensland Judiciary and a judge (please note the small j) of the Land Court of Queensland. An example of such a reference to judge as relating to the Land Court is found in the Land Valuation Act 2010 in section 174 as follows:

‘174 Judge not disqualified for owning land

  1. (1)
    This section applies for a valuation appeal or any appeal to the Land Appeal Court or the Court of Appeal concerning a valuation appeal.
  1. (2)
    A judge is not interested in, or disqualified from, dealing with a matter upon which the judge may be called to decide on the appeal merely because the judge owns land subject to a valuation.
  1. (3)
    In this section—

judge means the president or a judge of the Court of Appeal or a member of the Land Court.’”

  1. [34]
    It is appropriate to note the then Chief Justices closing remarks from Owen v Menzies:[15]

“[19] The legislature has ordained QCAT as a court of record, and has militated independence and impartiality, hallmarks of the judicial process, as mandatory for QCAT.

[20] Insofar as the actual operating conditions within the Tribunal may for argument‘s sake not have been ideal in terms of judicial criteria, high authority supports the view that one need not nevertheless secure that ultimate ideal in order to justify the ‘court of law’ characterization. Ultimately there is the assurance that this Tribunal is to apply the law, and to do so in the manner in which courts traditionally operate, that is, independently and impartially. That is enough to justify calling this Tribunal a ‘court of the State’ within the meaning of the Constitution: none of the additional features tabulated for the applicant, nor their combination, excludes that conclusion.”

  1. [35]
    There are a number of features set out in the Land Court Act 2000 (the LCA) which in my view are consistent with a finding that the Land Court is properly understood to be a court for the purposes of s 440D of the Corporations Act. The Land Court is a court of record.[16] The Land Court is also afforded all of the powers of the Supreme Court.[17] The Land Court may subpoena witnesses[18] and punish for contempt.[19] A member of the Land Court has the same privileges, protection and immunity as a Supreme Court judge,[20] and those same privileges, protection and immunity also apply when the Land Court is performing an administrative function.[21]
  2. [36]
    I note that the term “court” is defined broadly in s 58AA of the Corporations Act to mean “any court”.
  3. [37]
    I am in no doubt that the Land Court is a court for the purposes of s 440D of the Corporations Act.

Element 3A – Are the proceedings against the company?

  1. [38]
    The wording of element 3A appears abundantly clear. For this element to apply, the proceedings must be against the company in administration, and not proceedings initiated by the company in administration. As Wilcox J put it in the case of Uvanna Pty Ltd & Anor v Thang & Ors:[22]

“The appeal is not a ‘proceeding against the company’; rather it is a proceeding instituted by the company for its own benefit, in the hope of ridding itself of judgments entered against it.”

  1. [39]
    The sentiments in Uvanna were echoed in the case of MG Corrosion Consultants Pty Ltd v Gilmour[23] where Justice Barker had this to say at 360:

“The point of s 440D(1) is to ensure that where the company is the target of a proceeding or in some relevant way its property is the target of a proceeding, then that proceeding may not be begun or proceeded with, except with the administrator’s written consent or with the leave of the court. This ensures that, in the first instance, the administrator has the opportunity to view the continuance of such proceedings and the Court has a final say as to whether or not the proceeding may proceed. Where, however, the company is an applicant or plaintiff in a proceeding then different considerations apply. In such circumstances the administrator does not need the benefit of a provision such as s 440D(1) to decide whether or not to proceed with the proceedings. The approval of the Court in those circumstances would not be required”

  1. [40]
    The question as to the proper interpretation of element 3A would appear to have been put beyond doubt by the decision of Justice McDougall in Arogen v Leighton[24] where his Honour noted at 44:

“44 I return to the decision of Wilcox J in Uvanna. As I have noted, that was a case where the company had instituted an appeal. Wilcox J held, not surprisingly, that an appeal brought by a company was not a proceeding against it for the purposes of s 440D. That is clear as a matter of language, if I may say so with respect.”

  1. [41]
    As already indicated, the matters currently under consideration before me fall into two broad categories:  objections hearings under the MRA and EP Act; and determinations of compensation under the MRA. For completeness, it must be borne in mind that the provisions of the MRA require the Land Court, when hearing MRA objections, to also consider all of the elements of s 269(4) of the MRA insofar as those provisions relate to the MLA application process under the MRA, whether or not those particular provisions of s 269(4) are subject to objections.
  2. [42]
    An applicant for a MLA in Queensland will, in almost all circumstances, not be concerned about the MLA being referred to the Land Court unless there are objections made to the grant of the MLA. In like manner, an applicant for an EA under the EP Act will also not have the draft EA referred to the Land Court unless a submitter makes an objection to the draft EA. The question is accordingly, for the purposes of s 440D of the Corporations Act, is it the process of the applicant in applying for an MLA and an EA that initiates the proceedings before the Land Court, or are the proceedings before the Land Court initiated by the objectors? This question is of critical importance. The authorities I have referred to above make it clear that, if the proceedings are initiated by the company which is now in administration, element 3A does not apply. However, if the company in administration is protecting itself against proceedings initiated by others against it, then element 3A of s 440D is made out. Both Arcturus and Sullivan rely upon a decision of the mining warden in Western Australia in 2005. That case is Shields Contracting (In Liq) v Glintan Pty Ltd[25] to support their contention that the objection matters currently before the Court were initiated by Springsure and accordingly do not meet the requirements of element 3A.
  3. [43]
    On the other hand, both Springsure and the statutory party rely upon two decisions of the mining warden in Western Australia, also in 2005, they being Van Blitterswyk v Sons of Gwalia Ltd & Ors[26] (Van Blitterswyk 1) and Van Blitterswyk v Sons of Gwalia Ltd & Ors (Van Blitterswyk 2).[27] Both Springsure and the statutory party rely upon each of the Van Blitterswyk decisions to support their contention that objection proceedings under the MRA and the EP Act are proceedings commenced by the objectors against Springsure for the purposes of s 440D of the Corporations Act. It is clearly necessary to consider the various Western Australian mining warden decisions in some detail.
  4. [44]
    At the outset, I should point out that, despite the numbering of the decisions, Van Blitterswyk 1 was delivered first, on 28 February 2005, followed by Shields, which was delivered on 24 June 2005, followed by Van Blitterswyk 2, which was delivered on 24 August 2005. I will consider the cases in the order in which they were delivered.
  5. [45]
    Van Blitterswyk 1 concerned applications for exemption from expenditure pursuant to s 102(5)(a) of the Mining Act 1978 (WA) made by Sons of Gwalia Ltd & Ors and objections to that application which were made by Van Blitterswyk. It was the applicant for the exemption from expenditure, Sons of Gwalia Ltd & Ors which had administrators appointed. The question to be decided by Auti SM was whether s 440D of the Corporations Act applied.
  6. [46]
    The main point addressed by Auti SM in her decision was whether or not the mining warden could properly be classified as a court for the purposes of s 440D. She determined that the objections and plaints before her were “proceedings in a court” for the purposes of s 440D of the Corporations Act, and, being satisfied that the criteria in s 440D of the Corporations Act had been made out, she ordered that the stay be granted. It was accordingly implicit from her decision that she considered that the proceedings were either against Sons of Gwalia Ltd or in relation to any of the company’s property (elements 3A and 3B respectively).[28] The reasoning of Auti SM in this regard becomes clear when one considers Van Blitterswyk 2.
  7. [47]
    The case of Shields decided by Calder SM also involved an application for the grant of a certificate of exemption under the Western Australia Mining Act 1978. Shields made the application for exemption, which was objected to by Glintan. Shields was in liquidation, and Calder SM had to consider the provisions of s 471B and s 500(2) of the Corporations Act. Both these provisions are like s 440D of the Corporations Act. Calder SM put it this way:[29]

“In my opinion s. 440D, 471B and subs 500(2) all have the effect or prohibiting, in the circumstances to which they have application, a potential or an actual party to a matter of the type that is described in each of those provisions from commencing or, having commenced from proceeding further with, a relevant action or proceeding without leave and that they also prohibit any court that would otherwise have the jurisdiction to do so from allowing such a matter to be commended or to proceed further once having been commenced. Where such a matter has been commenced in any court without the necessary leave of a Court (as defined in ss. 9 & 58AA of the Corporations Act), or where a matter, having been commended without such leave (whether or not the leave was required at the time of its commencement), is sought to be continued, it could never be proper for the court, once having been made aware of the defendant being under administration or being wound up, to allow the matter to proceed any further unless the Corporations Act or some other law allows. That must be so whether or not all parties to the matter want to proceed and whether or not any party raises an objection in any form to it proceeding. For a court to proceed would contravene the express directions set out in the relevant section of the Corporations Act.”

  1. [48]
    Calder SM made the following observations regarding the nature of an objection:[30]

“78 The lodgement of an objection is not an originating or initiating procedure under the Mining Act. It is the lodgement of the application for exemption which commences the procedures before the Warden that must subsequently be followed. Without the objection being lodged there can be no hearing before the Warden. The objection has the effect of creating a detour in the path that the applicant must otherwise follow in having the application finally determined by the Minister. Whether there is a hearing or not, the destination is still the same, namely, the Minister. The objection is a merely a response to the application for exemption. …

79 When the Warden makes a recommendation under subs 102(6), the recommendation is as to whether the application should be granted or refused. The primary focus of the report and recommendation is not to be upon the objection. The recommendation is not, for example, to be that the objection should be, ‘dismissed’ or ‘upheld’. The matter that is being heard by the Warden is the application for the exemption. Similarly, the Minister does not uphold or dismiss or otherwise determine the objection. The Minister determines the application for exemption and nothing else. If the application for exemption is successful the objection simply falls way. …

80 … The lodgement of the objection does not create a new task for the tenement holder or, in the context of the Corporations Act, the administrator or the liquidator. The task remains the same whether there is an objection or not, namely, that of satisfying the Minister that there is a reason within the contemplation of s 102 of the Mining Act for non-expenditure and that, in the circumstances, that reason is sufficient, in the view of the Minister, to grant the certificate of exemption. The nature of that onus does not change simply because an objection has been lodged. It may require more effort and may become more difficult and more time consuming and, thus, more expensive to discharge that onus, but the onus must still be discharged before a certificate may be granted.”

  1. [49]
    Calder SM then went on to make specific reference to the decision of Auti SM in Van Blitterswyk 1:[31]

“106 With great respect to the views expressed by Warden Auty SM in Van Blitterswyk (supra) I unfortunately am unable to agree that to lodge an objection to an exemption application is to begin or commence anything that is sufficient to attract the application of any of ss. 440D, 471B or 500(2). I am unable to agree that either the lodgement of an objection or the hearing of the objector by the Warden during the hearing of the exemption application is a ‘proceeding’ or a ‘civil proceeding’ or an ‘action’ or that it is ‘in a court’ for purposes of any of those sections of the Corporations Act.

107 I do not consider that an objection is a procedure that is ‘against’ a company or the property of a company in the sense contemplated in ss. 440D, 471B or 500(2). Its true character is that it is a notice to the Minister that the objector does not agree, for reasons that the objector will put forward, that there should be a grant of an exemption where there has been an admitted non-compliance with the amount of expenditure that is prescribed in the regulations.”

  1. [50]
    As part of his reasoning in Shields, Calder SM considered the decision of Justice Finn in Pasdale v Concrete Constructions[32] as follows:

“Considered in this light, and bearing in mind the purposive construction enjoined by s 109H of the Corporations Law, the words ‘a proceeding in a court against the company’ are not in my view properly amenable to a construction which would cover a step taken in court by a respondent to an application brought against it by a company in administration. If such were the case the result would be that, while the company in the pursuit of its claim against the respondent could approach the court in the ordinary way for orders of a procedural or interlocutory nature, the respondent would be unable to so act to protect its own interests without first obtaining either the consent or the leave specified by s 440D. In other words the aggressor-applicant could act in an unfettered way while the defender-respondent would be procedurally disadvantage. Far from holding at bay a claimant on the company or its property (which is a purpose of the moratorium period), such a construction would privilege the company in proceedings which it had itself commenced. While Pt 5.3A does provide a form of preferential treatment for a company in administration, preferential treatment of this character is, in my view, quite unrelated to the object and purpose of that Part.”

  1. [51]
    Following the decision in Shields, Auti SM again had the opportunity to consider the operation of s 440D of the Corporations Act in Van Blitterswyk 2. The applicant in Van Blitterswyk 2 was one of the other respondents, St Bara Mines Ltd (SBM). Auti SM had this to say:[33]

“6 SMB’s arguments follow, and for the most part repeat those first addressed in the recent decision of WC Van Vlitterswyk v Sons of Gwalia Ltd and Others 2005 [WAMW] 6. SBM argue that notwithstanding the sale of the disputed tenements to SBM the Objections and Plaints were launched during Administration and they are and will remain incurably defective unless this flaw is remedied by a grant of leave nunc pro tunc. The company argues that the proceedings are flawed and are stayed automatically as a result of this but they seek a stay for the purposes of clarity. In essence SBM asserts the effective process needs curing and that a failure to do so will mean that any Warden’s determinations will be unenforceable, liable to be set aside and legally incurable. The plaintiff must therefore obtain leave from the pertinent Court. SBM is concerned that whilst there is a subsisting but stayed objection it is not clear that the Warden would have the power to dismiss or ignore the Objection without hearing submissions from the Objector.

7 In the Sons of Gwalia case I granted a stay of proceedings to Sons of Gwalia on the basis that Objections and Plaints are proceedings in a court impacting upon company property and, pursuant to Section 440D of the Corporations Act 2001 (Cth) leave to proceed should have been obtained from either the Administrator or granted by the Supreme or Federal Court before the launch of the Objections or Plaints.

8. The application of Section 440D in this jurisdiction has since been the subject of obiter dicta in the decision of Warden Calder in Shields Contracting (In Liq) v Glinton Pty Ltd [2005] WAMW 5. In that case Warden Calder, dealing with a company in Liquidation, in contra-distinction to a company in Administration, observed that Objections were not ‘proceedings’ in a court and the protections inherent in the application of section 440D could not be invoked. He suggested that Plaints were protected by the operations of section 440D.

9. The operation of section 440D in respect of proceedings in the Warden’s Court (even when in open court’) is not concluded or finalised satisfactorily be reference to the decisions of me and Warden Calder. I remain content to follow my earlier reasoning in Van Blitterswyk v Sons of Gwalia. It is my view that proceedings might be construed broadly or narrowly and be initiating, intervening or incidental stages in litigation (see Finn J in Pasdale Pty Ltd v Concrete Constructions (1985) 131 ALR 268 @ 270 and see Stroud’s Judicial Dictionary 4th ed. P 2124ff and Reynolds v Panten (1999) 23 WAR 215). Further it is my view that the Warden sitting in open court is ‘a court’ (see Austin J in Brian Rochford Ltd (Administrators Appointed) v Textile Clothing and Footwear Union NSW (1998) 47 NSWLR 47).

  1. It is my view that notwithstanding SBM submitting that they only require a stay in relation to the Plaints and not the Objections it is not appropriate to split these actions as suggested. SBM argue that if the Objections proceed without being stayed (at some time sine die) it is on the head of the Plaintiff if the process is ultimately concluded to be flawed and the hearing before the warden in open court in respect of the objection will be defective and a nullity. They submit that this should not sway me as to whether I am prepared to grant a stay in respect of this process. It is my view section 440D applies to both processes and all Plaints and Objections will be stayed.”
  1. [52]
    I now turn to the difficult task of resolving the question before me as to the operation of criteria 3A of s 440D of the Corporations Act in the light of the conflicting authority. Ms Downes QC has pointed out that in the matters currently before me it is not the case, as it was in Pasdale, that Springsure will be “able to act in an unfettered way” and advance its MRA and EP Act applications without obstruction from objection proceedings if s 440D applies. As Ms Downes QC puts it, this is because, under the terms of the MRA and EP Act, “the mining lease applications and the environmental authority applications will not be able to be resolved until the objections are dealt with. Unlike the situation in Pasdale, there would be no procedural disadvantage to the respondents if the objection proceeding is stayed.”[34]
  2. [53]
    Ms Downes QC clearly grains supports for her submissions from the observations of Justice Barrett in Arpic Pty Ltd v Austin Australia Pty Ltd[35] as follows:

“Finn J’s observations were confined to the situation where a defendant against whom proceedings have been brought by a company to which s 440D comes to apply seeks to take some interlocutory step in those proceedings. His Honour’s obiter conclusion was really that, from the perspective of a company in administration, s 440D operates as a shield but not as a sword. If proceedings are initiated by that company (whether before or after administration), so that it is the ‘aggressor’, a step of an interlocutory kind taken by the defendant is not, on Finn J’s approach, a step that involves ‘proceeding with’ the ‘proceeding’ initiated by the company itself.”

  1. [54]
    I agree with Ms Downes’ QC submissions that Springsure’s applications for the MLAs and the EAs have not necessitated Arcturus or Sullivan being involved in any form of proceeding, leaving to one side the compensation proceedings. The applications for the MLAs and EAs were not directed at Arcturus or Sullivan, as under the terms of the MRA and the EP Act objections are able to be made by any entity, whether such entity is directly affected by the applications or not. The objections brought by Arcturs and Sullivan are not, therefore, a defensive measure brought in response to an application made against them by Springsure, akin to the security for costs application in Pasdale. They are, rather, challenges to the interest held by Springsure in the MLAs and EA, and it is those challenges that have necessitated the objection proceedings.
  2. [55]
    In my view, the objection proceedings have not been initiated by Springsure. They were brought against Springsure and not by Springsure for the purposes of s 440D of the Corporation Act. It is irrelevant that as part of the objections hearing the Land Court also hears the application by Springsure for the MLAs. Were it not for the objections, there would be nothing before the Land Court to consider.
  3. [56]
    In considering whether it is more appropriate to follow the Van Blitterswyk decisions or that of Shields for the purposes of s 440D of the Corporations Act, it is important to note that Shields related to a company in liquidation pursuant to s 471B and s 500(2) of the Corporations Act and not s 440D. The reasoning of Calder SM accordingly in Shields insofar as s 440D is concerned is merely obiter. Further, and most importantly in my view, although it is true that there is a great similarity between s 440D and ss 471B and 500(2) of the Corporations Act, Calder SM did not have to consider the purpose of company administration and Part 5.3A of the Corporation Act in Shields. The distinction between the considerations that apply to company administration and company liquidation were well set out by Justice Young in Foxcraft v Ink Group Pty Ltd:[36]

“There is, however, quite a big difference between a company in administration and a company in liquidation. A company in administration is seeking to continue to trade and is, in accordance with s 435A, seeking to maximise the chance of it remaining in business. A company in liquidation is one where the liquidator is seeking not to trade but to realise the company’s assets as soon as possible for the best price, in order to be able to distribute the net available funds to the creditors and in some circumstances, the members.

The provisions of Pt 5.3a, as exemplified in sections such as 437C, 437f, 440c and 440d, provide that there shall be a complete freeze of proceedings against the company during the administration so that the administrator can have time to assess the situation, and the company’s creditors have an opportunity to work out the net position and adopt an attitude under s 439c which will be in their common interest. To allow one creditor or potential creditor to proceed would not only take the administrator’s attention from what he needs to do under the division in a relatively short period of time, but it would also involve costs in running the legal action on behalf of the administrator, as well as perhaps giving the claimant some advantage over the other creditors or potential creditors.”

  1. [57]
    Specifically as regards s 440D of the Corporations Act, I prefer the decisions of Auti SM in both Van Blitterswyk decisions over the obiter comments of Calder SM in Shields.
  2. [58]
    Further, I am satisfied that under the MRA as it currently operates in Queensland, objection hearings for the purposes of s 440D of the Corporations Act are initiated in the Land Court as a result of the actions of an objector in making objections and, in like manner, under the EP Act of submitters making objections to a draft EA. But for the objections under the MRA and the EP Act, there would not be an objections hearing relating to the MLAs or the EAs in the Land Court.

The compensation proceedings

  1. [59]
    Having dealt with the manner in which element 3A applies in objection proceedings, it is now necessary for me to consider the compensation matters currently before the Court.
  2. [60]
    Springsure contends that much of the same reasoning applies to objection proceedings as compensation proceedings as set out in paragraphs 78 – 91 of their reply submissions. I cannot agree with these submissions.
  3. [61]
    The question of the determination of compensation payable with respect to the grant of an MLA comes before the Court in one of two ways. The matter is either referred to the Court by the Department if no agreement as to compensation has been filed between the mining lease applicant and the relevant landholder within three months of the recommendation that the MLA be granted[37] or by the department at the request of any party who could be a party to a compensation agreement, at any time.[38] In this case, as there has been no recommendation made with respect to either MLA, s 279 of the MRA does not apply. What actually occurred in this case was that, pursuant to s 281 of the MRA, Springsure sought the determination of compensation payable with respect to both MLAs.[39]
  4. [62]
    Clearly, the compensation proceedings have been initiated by Springsure. In no way can they be construed as proceedings against Springsure for the purposes of element 3A.

Element 3B – are the proceedings in relation to the property of the company?

  1. [63]
    Section 9 of the Corporations Act defines the term property to mean:

“any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action”

  1. [64]
    As regards the above definition of property, the Court of Appeal decision of Arco Resources Ltd & Anor v Commissioner of Stamp Duties[40] is noteworthy. The question in Arco was whether an MLA constitutes property for the purposes of stamp duty. The Court (Macrossan CJ, Davies JA and Shepherdson J) had this to say:[41]

“…we do not think that there is any substance in the contention that the mining lease application was not property. To the contrary, a consideration of the Mining Act 1968 provides sufficient indicia to conclude otherwise. An application gave its holder rights capable of protection. The applicant could maintain an action for damages for trespass against persons who wrongfully interfered with the land the subject of the application, and further, to recover any mineral teken or its value:  s. 23(2). Until the application had finally been determined the holder was liable to pay a sum equivalent to the rent which would be payable with respect to a mining lease granted over the land:  s. 27(3). And with the Minister’s consent the application itself could be transferred or assigned to third persons:  s. 37(1)(b). The language of subs. (1)(b) perhaps provides the clearest indication of the proprietary nature of an application for a mining lease. It provided that not only an application which had not been disposed of could be transferred, but also that ‘any share or interest therein’ could be transferred or assigned. And no doubt in the present case it was of considerable commercial value. While the application may not have conferred upon its holder an estate or interest in the land to which it related we would conclude that the application itself was property. …”

  1. [65]
    Although the decision in Arco related to a MLA under the Mining Act 1968 and not the MRA, in my view the nature of an MLA has not significantly changed between that as prescribed in the Mining Act 1968 and the MRA. I consider Arco to be as applicable to the MRA as it was to the Mining Act 1968.
  2. [66]
    Clearly the objection proceedings under the MRA, relating to Springsure’s MLAs, are in relation to the property of Springsure as there is a direct correlation between the MLA objections and the MLAs themselves. Can the same be said, however, of the EA objections and the compensation matters?
  3. [67]
    Turning again to the case of MG Corrosion, Justice Barker had this to say:[42]

“I should immediately note that the words ‘in relation to’ are very broad in scope. In Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510 (Travelex) at [25], French CJ and Hayne J, for example, observed that it may readily be accept that ‘in relation to’ is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. In this context, I consider the degree of connection between the subject matters ‘proceeding in a court’ and ‘any of its property’ should be substantial or real, although it may be indirect.”

  1. [68]
    Specifically as regards the objections to the EA, Mr Harris for Sullivan has submitted that the EA is not property within the meaning of the Corporations Act.[43] Mr Harris says that an EA should be properly understood to be a regulatory authority to carry on prescribed activities in accordance with conditions issued by the regulator, and further that the EA objections cannot be seen to be in relation to any property of Springsure. He submits that the EA objections are in respect of the regulator’s conditions on the prescribed activities, being the proposed mining works/development. Mr Harris notes that, while the EA cannot take effect until the MLA is issued, the EA still does not relate to the MLA itself but rather the regulation of the works that will be carried on once the MLA is issued. I agree with Mr Harris’ contentions. Despite the broad scope that is to be applied in relation to property, I am of the opinion that each EA does not of itself have a close enough nexus to the respective MLA to enjoy the same status as the MLA as property.
  2. [69]
    I am of the same view as regards the compensation matters. I do not believe that, despite the best efforts of Ms Downes QC, the fact of property residing in the MLAs is of a sufficient nexus to allow the compensation matters to be considered as relating to Springsure’s property of the MLAs. The compensation matters are separate proceedings arising under quite different provisions of the MRA. They are properly understood to be separate and distinct compensation matters brought before the Court at the request of Springsure for separate determination under the MRA.

Conclusion

  1. [70]
    In light of my reasoning above, it follows that the objections under the MRA and under the EP Act are both properly classified as falling within s 440D of the Corporations Act as they are proceedings in a Court brought by the objectors against Springsure. I note of course that it is only necessary for either element 3A or element 3B to be made out, and that element 3A was made out with respect to objection proceedings under both the MRA and the EP Act.
  2. [71]
    It follows that s 440D of the Corporations Act operates to stay the objection proceedings under the MRA and the EP Act.
  3. [72]
    Although I have concluded that the compensation proceedings do not meet either element 3A or 3B, and thus are not stayed under s 440D of the Corporations Act, some further comments should be made with respect to the compensation proceedings.
  4. [73]
    I have on numerous occasions heard together objections to MLAs and EAs and compensation hearings relating to the grant of those same MLAs. However, although I have heard all matters together initially, I have on every occasion that I can recall firstly made my recommendations with respect to the MLA and draft EA and adjourned further consideration of the compensation proceedings to allow the parties to make further submissions taking into account the recommendations made with respect to the MLA and the EA. The reason for this course of action is clear. The impact that the proposed grant of an MLA will have on a determination of compensation cannot be known until such time as the MLA and EP recommendations of the Court are known. Pursuant to those recommendations, there may be quite a different mining operation to that envisaged by the miner, or indeed the area of the MLA may be reduced, or a host of other changes may be recommended. Although it is true that there will not be any certainty as to the precise nature of the grant of the MLA and the EA until same is made by the relevant Ministers, it is the duty of the Land Court to determine compensation in all circumstances where compensation has not been agreed prior to an MLA being granted. Accordingly, there will always be some uncertainty as to the ultimate terms and conditions upon which the MLA and the EA are made. However, by waiting until after the Land Court has made its recommendations, as much certainty as can possibly be had with respect to the terms of the ML and the EA is obtained.
  1. [74]
    It follows that, although the compensation proceedings are not stayed by the provisions of s 440D of the Corporations Act, there is little or no utility in proceeding with the compensation matters in isolation for so long as the MLA and EA applications are stayed pursuant to s 440D of the Corporations Act.

Orders

  1. The objection proceedings under the MRA are stayed by the operation of s 440D of the Corporations Act.
  1. The objection proceedings under the EP Act are stayed by the operation of s 440D of the Corporations Act.

PA SMITH

MEMBER OF THE LAND COURT

Footnotes

[1]  T 6 November 2014, 1 – 3 L 43 – 44.

[2]  See s 438A Corporations Act.

[3]  (1994) 15 ACSR 203.

[4]  At 204 – 205.

[5]  [2004] NSWSC 1186 at [22].

[6]  [2000] VSC 570 at [13].

[7]  (2002) 168 FLR 85 at [5].

[8]  At paragraph 17.

[9]  [2015] QSC 107.

[10]  [2015] QSC 107 at [28] – [45].

[11]  [2010] QCA 359.

[12]  (2012) 202 FCR 354.

[13]  (1999) 20 WAR 525 at [7].

[14]  Paper titled “What part does the Land Court of Queensland play in land access matters” by Member Smith, August 2014 – available on the Land Court website.

[15]  [2012] QCA 170 at [19] – [20].

[16]  Section 4(2) of the LCA.

[17]  Section 7A of the LCA.

[18]  Section 8 of the LCA.

[19]  Section 9 of the LCA.

[20]  Section 35(1) of the LCA.

[21]  Section 35(3) of the LCA.

[22]  (1997) 72 FCR 202 at 203.

[23]  (2012) 202 FCR 354.

[24]  [2013] NSWSC 1099.

[25]  [2005] WAMW 5.

[26]  [2005] WAMW 06.

[27]  [2005] WAMW 26.

[28]  See Van Blitterswyk 1 at [55].

[29] Shields at [6].

[30] Shields at [78] – [80].

[31] Shields at [106] and [107].

[32]  (1995) 19 ACSR 693 at 695-696.

[33] Van Blitterswyk number 2 at [6] – [10].

[34]  Springsure, reply submissions, [71] – [72].

[35]  (2004) 49 ACSR 71 at [21].

[36]  (1994) 15 ACSR 203 at 204-205.

[37]  S 279(5) of the MRA.

[38]  S 281(1) of the MRA.

[39]  See referrals for MRAs 138-14, 139-14, 140-14 and 141-14 all dated 18 June 2014 and referral for MRA 412-14 dated 19 September 2014.

[40]  [1996] 1 QdR 1.

[41] Arco at 9 – 10.

[42] MG Corrosion at 357.

[43]  Sullivan submissions at [20] and [21].

Close

Editorial Notes

  • Published Case Name:

    Springsure Creek Coal Pty Ltd v Sullivan & Ors

  • Shortened Case Name:

    Springsure Creek Coal Pty Ltd v Sullivan

  • MNC:

    [2015] QLC 51

  • Court:

    QLC

  • Judge(s):

    Member Smith

  • Date:

    17 Dec 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ammann v Wegener (1972) 129 CLR 415
1 citation
Jump To
Cite 1 - (1972) 129 CLR 415
Aquila Resources Ltd v Pasminco Ltd (2002) 168 FLR 85
2 citations
Jump To
Cite 1 - (2002) 168 FLR 85
Cite 2 - (2002) 168 FLR 85
Arco Resources Ltd v Commissioner of Stamp Duties [1996] 1 Qd R 1
3 citations
Jump To
Cite 1 - [1996] 1 Qd R 1
Cite 2 - [1996] 1 Qd R 1
Cite 3 - [1996] 1 Qd R 1
Arogen v Leighton [2013] NSWSC 1099
2 citations
Jump To
Cite 1 - [2013] NSWSC 1099
Cite 2 - [2013] NSWSC 1099
Arpic Pty Ltd v Austin Australia Pty Ltd (2004) 49 ACSR 71
2 citations
Jump To
Cite 1 - (2004) 49 ACSR 71
Cite 2 - (2004) 49 ACSR 71
BHP Billiton Mitsui Coal Pty Ltd v Isdale [2015] QSC 107
3 citations
Jump To
Cite 1 - [2015] QSC 107
Cite 2 - [2015] QSC 107
Cite 3 - [2015] QSC 107
Brian Rochford Ltd v Textile Clothing & Footwear Union (NSW) (1998) 47 NSWLR 47
1 citation
Jump To
Cite 1 - (1998) 47 NSWLR 47
Cheney v Spooner (1929) 41 CLR 532
1 citation
Jump To
Cite 1 - (1929) 41 CLR 532
Chief Executive, Queensland Health v Jattan [2010] QCA 359
2 citations
Jump To
Cite 1 - [2010] QCA 359
Cite 2 - [2010] QCA 359
Finn J in Pasdale Pty Ltd v Concrete Constructions (1985) 131 ALR 268
1 citation
Jump To
Cite 1 - (1985) 131 ALR 268
Foxcroft v The Ink Group Pty Ltd (1994) 15 ACSR 203
4 citations
Jump To
Cite 1 - (1994) 15 ACSR 203
Cite 2 - (1994) 15 ACSR 203
Cite 3 - (1994) 15 ACSR 203
Cite 4 - (1994) 15 ACSR 203
Grassby v The Queen (1989) 168 CLR 1
1 citation
Jump To
Cite 1 - (1989) 168 CLR 1
Greenaways Australia Pty Ltd v CBC Management Pty Ltd (2004) NSWSC 1186
2 citations
Jump To
Cite 1 - (2004) NSWSC 1186
Cite 2 - (2004) NSWSC 1186
Herbert Berry Associates Ltd v Inland Revenue Commissioners [1977] 1 WLR 1437
1 citation
Jump To
Cite 1 - [1977] 1 WLR 1437
Herbert Berry Associates Ltd v IRC (1978) 1 All E.R. 161
1 citation
Jump To
Cite 1 - (1978) 1 All E.R. 161
MG Corrosion Consultants Pty Ltd v Gilmour (2012) 202 FCR 354
4 citations
Jump To
Cite 1 - (2012) 202 FCR 354
Cite 2 - (2012) 202 FCR 354
Cite 3 - (2012) 202 FCR 354
Cite 4 - (2012) 202 FCR 354
Owen v Menzies[2013] 2 Qd R 327; [2012] QCA 170
3 citations
Jump To
Cite 1 - [2012] QCA 170
Cite 2 - [2012] QCA 170
Cite 3 - [2012] QCA 170
Pasdale v Concrete Constructions (1995) 19 ACSR 693
2 citations
Jump To
Cite 1 - (1995) 19 ACSR 693
Cite 2 - (1995) 19 ACSR 693
Re Calder SM; Ex parte Gardener (1999) 20 WAR 525
2 citations
Jump To
Cite 1 - (1999) 20 WAR 525
Cite 2 - (1999) 20 WAR 525
Reynolds v Panten (1999) 23 WAR 215
1 citation
Jump To
Cite 1 - (1999) 23 WAR 215
Rodgers v Rally [2000] VSC 570
2 citations
Jump To
Cite 1 - [2000] VSC 570
Cite 2 - [2000] VSC 570
Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson (1892) 1 QB 431
1 citation
Jump To
Cite 1 - (1892) 1 QB 431
Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510
1 citation
Jump To
Cite 1 - (2010) 241 CLR 510
Uvanna Pty Ltd & Anor v Thang & Ors (1997) 72 FCR 202
2 citations
Jump To
Cite 1 - (1997) 72 FCR 202
Cite 2 - (1997) 72 FCR 202
Van Blitterswyk v Sons of Gwalia Ltd & Ors [2005] WAMW 6
3 citations
Jump To
Cite 1 - [2005] WAMW 6
Cite 2 - [2005] WAMW 6
Cite 3 - [2005] WAMW 6
Van Blitterswyk v Sons of Gwalia Ltd & Ors [2005] WAMW 26
3 citations
Jump To
Cite 1 - [2005] WAMW 26
Cite 2 - [2005] WAMW 26
Cite 3 - [2005] WAMW 26
Warden Calder in Shields Contracting (In Liq) v Glinton Pty Ltd [2005] WAMW 5
6 citations
Jump To
Cite 1 - [2005] WAMW 5
Cite 2 - [2005] WAMW 5
Cite 3 - [2005] WAMW 5
Cite 4 - [2005] WAMW 5
Cite 5 - [2005] WAMW 5
Cite 6 - [2005] WAMW 5

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.