Armstrong & Anor v Miles & Ors [2004] HCATrans 52 (12 March 2004)

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Armstrong & Anor v Miles & Ors [2004] HCATrans 52 (12 March 2004)

Last Updated: 22 March 2004

[2004] HCATrans 052

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B109 of 2002

B e t w e e n -

DEAN LINDSAY ARMSTRONG

First Applicant

LISA MAREE ARMSTRONG

Second Applicant

and

PHILIP MICHAEL MILES

First Respondent

MINING REGISTRAR AT EMERALD

Second Respondent

MINISTER FOR NATURAL RESOURCES & MINISTER FOR MINES

Third Respondent

CHIEF EXECUTIVE, ENVIRONMENTAL PROTECTION AGENCY

Fourth Respondent

Application for special leave to appeal

McHUGH ACJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MARCH 2004, AT 10.15 AM

Copyright in the High Court of Australia

__________________

MS D.A SKENNAR: May it please your Honours, I appear on behalf of the applicants. (instructed by Alroe & O’Sullivan)

MR A.J.H MORRIS, QC: May it please your Honours, I appear with MR A.C. BARLOW for the first respondent. (instructed by A.C. Barlow)

McHUGH ACJ: Yes, Ms Skennar.

MS SKENNAR: Your Honours, the matter before the Court of Appeal in this case was whether the definition of “mine” in section 6A of the Mineral Resources Act should be limited by excluding from its ambit the winning of the mineral from a place where it occurs, where that is for the purpose of sampling or testing only. The Court of Appeal found that the mere fact that there was separate definitions in the Mineral Resources Act for the concepts of “explore” and “mining” did not justify such a conclusion. In doing so, it relied upon the decision in Gonzo Holdings No 50 Pty Ltd v McKie. The difficulty with the judgment in Gonzo is that Gonzo confirms that the concept of mining depends upon the circumstances. Your Honours will see, from the judgment of the majority at page 248, that their Honours - - -

McHUGH ACJ: For what it is worth, Ms Skennar, the legislation has been amended since Gonzo, has it not, including the definition of “mine”? And the amendment did not affect the court’s dicta in Gonzo.

MS SKENNAR: That is true, your Honour, but there may be other reasons for that, that the amendment to the legislation appears to have been solely focused upon the issues that were the subject of that decision proper. In my submission, the amendments did not go to the issue of whether or not exploration constitutes mining in every case. In my submission, the difference between Gonzo and this matter must be that in Gonzo, the activities, although the court considered them exploratory, were in fact not mining. In that case, there was a view to winning material from the place where it occurred, and the applicant had already passed the threshold test and had a mining lease. In this case, the applicant needed to apply for the mining lease, and he does not satisfy the threshold test because his intentions are limited to sampling and testing.

In my submission, your Honour, those intentions do not accord with the scheme of the Act, which provides for different types of tenures to be given in relation to sampling and testing. If your Honours turn to section 176 of the Act, you will see that in that case, where the holder of an exploration permit discovers minerals of commercial value, it is obliged to report that finding to the Minister. That supports the applicant’s submission that in determining whether or not the exploration in any particular matter is to be considered mining, it must be considered whether or not the conduct to be carried on is sufficiently commercial. Your Honour, in this case, it is my submission that those factors were not proved. It is a short point, your Honours. I do not think I can take it any further.

McHUGH ACJ: Thank you very much, Ms Skennar. The Court need not hear from you, Mr Morris.

This application concerns a question of statutory construction. The decision of the Court of Appeal is in accordance with dicta in Gonzo Holdings No 50 Pty Ltd v McKie [1996] 2 Qd R 240 at 246. Subsequent to the decision in Gonzo, the definition of “mining” was amended in a way that does not undermine or cast doubt on those dicta. We are of the view that there is no reason to doubt the correctness of the Court of Appeal’s decision in this matter.

Accordingly, the application for special leave is refused with costs.

AT 10.21 AM THE MATTER WAS CONCLUDED