Exit Distraction Free Reading Mode
This case arose out of proceedings brought by Glencore seeking repayment of mining royalties paid to the State for the mining of coal – on the alleged basis that it owned the coal and had paid the royalties by mistake. The State alleged that it owned the coal, and that in any event, a restitutionary claim for the royalties paid was precluded by various statutory provisions. Justice Bradley found that Glencore (and another company) owned the coal in the relevant lots, and that Glencore’s restitutionary claim was not precluded.
7 November 2022
The plaintiff, Glencore, operates the Rolleston Coal Mine. . For this purpose, it holds mining leases authorising it to mine coal on two lots of land – Lot 1 (which it owns) and Lot 18 (which is owned by another company, APD). . Glencore has paid roughly $54 million to the State of Queensland as royalties for coal mined from Lot 1. . It has also paid more than $80 million in royalties to APD for coal mined from Lot 18. .
In this proceeding Glencore seeks restitution of the monies it has paid to the State as royalties for coal mined from Lot 1. . It alleges that the State had no legitimate basis for receiving the royalties as it had no property in the coal within Lot 1. It contends that the royalties were paid on the mistaken belief that the State did have property in that coal. . The State resisted that contention, and counterclaimed that Glencore owes it at least $80 million for coal mined from Lot 18. . The State also contended that, even if it did not have property in the coal in Lot 1, Glencore’s restitutionary claim is precluded by provisions in the Mineral Resources Act 1989 and Taxation Administration Act 2011. .
In this judgment the Court determined separate questions relating to the dispute. Those questions related to who holds property in the coal in Lots 1 and 18, and whether the restitutionary claim is precluded. .
Who holds property in the coal in Lots 1 and 18
In 1892 the State alienated the Lot 1 land from the Crown. In 1893 and 1899 it alienated the Lot 18 land. . The language of each of the Deeds of Grant was “effective to convey the fee simple in the land”. . At the time, the State conveyed each estate subject to reservations contained in the Crown Lands Act 1884 – but those reservations “were limited to gold, and included no other reservation of property in minerals”. . In other words, in these original grants the State had alienated ownership of any coal in those lands. . The State’s argument was that, despite initially alienating ownership of coal contained in Lots 1 and 18, it had regained ownership of the coal in both lots at later points in time. .
In relation to Lot 1, the relevant factual history was that in 1933 the State had sought to create a new highway that would run through the land. . Consequently, the State obtained the surrender of the original deed “with a view to the issue of a new deed excluding the area resumed” for the road. . The surrender and issuing of a new deed was made pursuant to s 8 Land Act 1910. . The State alleged that the process of surrender passed ownership of the coal back to the State, and that it had not passed ownership of the coal under the replacement deed. .
Justice Bradley rejected this argument. His Honour considered that the process under s 8 merely gave a landowner an “entitlement to a fresh deed of grant that described the land more correctly or accurately than an existing deed”. . The provision did not reveal any legislative intention that the State would “acquire any property in the land from a surrendering landowner, save for any road they had agreed would be acquired”. . By s 8(1), the State was required to issue a fresh deed of grant “comprising the land to which [after alterations of the boundary] any owner is entitled”. . In this case, the owner was entitled to the fee simple in the Lot 1 land (including the coal), and the statute “did not authorize the State to grant a lesser or more limited estate or interest”. . It was improbable that the Parliament would have intended to “infringe vested property rights without expressing its intention in very clear language”. .
In relation to Lot 18, the factual circumstances were different, but the legal conclusion was the same. . In 1984 the State had (upon request) decided that it would close a road reserve on Lot 18. It obtained a surrender of the original deed and replaced it with a new deed. . Again, the State alleged that the surrender had resulted in it obtaining ownership of the coal, which had not been re-conveyed in the replacement deed. . In this instance the surrender and grant of a new deed had been made pursuant to s 9 Land Act 1962. . However, Bradley J considered that the effect of s 9 was “not materially different to that of … s 8 of the Land Act 1910”. . Accordingly, ownership of the coal in Lot 18 had not been passed back to the State. .
In conclusion, the coal in Lots 1 and 18 was not the property of the State. . As successors in title to the original grants, the coal in Lots 1 and 18 was owned by Glencore and APD respectively. , .
Whether the restitutionary claim is precluded
The State contended that, even if it did not own the coal in Lot 1, Glencore could not recover the amount it had paid to the State in royalties for that coal. . It argued that Glencore’s restitutionary claim was precluded by provisions in Ch 11 Mineral Resources Act 1989 (concerning the refund of payments for royalties) and the Taxation Administration Act 2001 (which applies in relation to a liability for royalties before or after the commencement of amendments commencing 1 October 2020). . For instance, the State relied on s 36 Taxation Administration Act 2001, which provides that a “person is not entitled to a refund of any amount paid, or purportedly paid, under a tax law other than under this division”. . The State alleged that the legislation provided the “exclusive mechanism” for refunds of overpaid royalties, and that there could “be no doubt” that the intention of the legislation “was to oust any restitutionary claim”. .
Justice Bradley rejected that argument. . His Honour considered that the provisions did not expressly limit or exclude any right a person may have, outside the statute, “to commence a proceeding in a court (such as a restitutionary claim) to recover the money paid or purportedly paid under a mistake”. . As the High Court had observed, the courts require “very clear legislative intent” before they will treat a statutory provision as “taking away common law rights of a plaintiff, where there is an alternative construction available”. . Here, the legislation did not clearly take away Glencore’s right to pursue a restitutionary claim; the provisions did not express or imply any restriction or prohibition on bringing a claim for a common law remedy. .
In conclusion, Glencore’s restitutionary claim was not precluded as alleged by the State. .