Wright and Anor v The Minister for Employment, Skills & Mining for the State of Queensland and Ors [2014] HCATrans 18 (14 February 2014)

Last Updated: 18 February 2014

[2014] HCATrans 018

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B34 of 2013

B e t w e e n -

TERESA MONICA WRIGHT AND HELEN ENID JENNIFER BRIGHT

Applicants

and

THE MINISTER FOR EMPLOYMENT, SKILLS & 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

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 14 FEBRUARY 2014, AT 11.07 AM

Copyright in the High Court of Australia

____________________

MR P.J. CALLAGHAN, SC: If it please the Court, I appear with my learned friends, MR B.P. RYAN and MR B.P. DIGHTON, for the applicants. (instructed by Carruthers Solicitors)

MR P.J. DAVIS, QC: If it please the Court, I appear with my learned friend, MR G.J.D. DEL VILLAR, for the first respondent. (instructed by Crown Solicitor)

MR R.N. TRAVES, QC: If it please the Court, I appear with my learned friend, MR N. ANDREATIDES, for the second respondent. (instructed by Dibbs Barker)

MR CALLAGHAN: The submitting appearance for the third respondent is at application book 83.

FRENCH CJ: Thank you. Yes, Mr Callagahan.

MR CALLAGHAN: Your Honours, we do present the case for leave on the basis that it turns upon the proper construction of an important statute, but also on the basis that the Court would be concerned by the approach of the Court of Appeal to what it called a “textual argument” – the phrase used at application book 48, line 1 in paragraph [145] of the judgment.

Had there been appropriate engagement with that argument, then large parts of the majority judgments and, in particular, those parts dealing with factual matters, would have been unnecessary, and had there been proper engagement with the texts of the statutes, the Court needed only to consider one factual matter, namely, that the second respondent had not – and had never claimed to do anything like carry on a mining operation at the land which was subject to the lease.

To that single fact, it was necessary to apply the law as written. The first relevant provision appears, or is reproduced, in application book 19 at line 30. It is section 286A of the Mineral Resources Act 1989 and, in short, the effect of that provision is that the first respondent had to decide if the second respondent had complied with the terms of its lease. The next relevant provision - - -

CRENNAN J: The lease was not restricted, was it, to mining the land? That point was made at page 41, paragraph [105], by reference to section 21 of the Mining Act which identified relevant purposes as including mining but also other purposes. It was an express condition, was it not – and this can be picked up from paragraph [107] on the same page:

that the lessee “rehabilitate all mined or disturbed surface areas –

MR CALLAGHAN: It was a condition.

CRENNAN J: You are contending, are you, that this particular miner was not covered by section 21(1)(b) and the special condition because they had never mined the land. Is that what it comes down to?

MR CALLAGHAN: Yes, your Honour, and that requirement - - -

CRENNAN J: Is that not a construction which would mean that a lessee who went on to a land which had been mined previously would have no ability to rehabilitate the land?

MR CALLAGHAN: No, your Honour. That does not follow at all. It does not follow if it is accepted that the statute provides that the – I will deal with the concept of rehabilitation which I was going to come to. Rehabilitation was a special condition of the lease and it appears at application book 41, line 30 at paragraph [107]. It required that the lessee progressively:

“rehabilitate all mined or disturbed surface areas –

Of course, this lessee did not mine or disturb surface area itself, but there was, nonetheless, some evidence of things said to be rehabilitation and they are canvassed at application book 34 and 42. All of that led to the conclusion - - -

CRENNAN J: But that was not contested, was it?

MR CALLAGHAN: No, and it was said to support the conclusion reached at application book 43, line 51, paragraph [122]. Our response to this concept and to your Honour’s question begins at application book 62 in paragraphs 3.13 and following. The response is really in two parts. First of all, the Court of Appeal has conflated notions that are treated separately by the statute.

Before your Honour’s question I was about to take you to section 276(1)(a) of the Mineral Resources Act, which is reproduced in application book 20, line 10. That is the provision which made this lease and every lease subject to a condition that the holder use the land for the purpose for which it was granted and in accordance with the Act and the conditions of the mining lease.

We draw attention to the fact that the Act deals separately with the concepts of the purpose for which a lease was granted and the conditions that apply to it – progressive rehabilitation attached to this lease as a special condition. The mere fact that it was included in the lease does not convert it into a purpose. Now, purpose could be specified in the lease. Section 21(1)(b) contemplates just that. But this does not mean that every term of a lease is its purpose. If a purpose is to be specified, it should be just that, especially when 276(1)(a) treats purpose and conditions as separate notions. The fact that progressive rehabilitation was incorporated into the lease as a special condition is what we point to to demonstrate that it was a condition and not a purpose.

But even if that is wrong, and even if by some means that which was deemed rehabilitation could be deemed to be a purpose for the purposes of the Act, it was not and could not have been something necessary to or connected with anything being carried on by the second respondent. Whatever they did was not something connected with the purpose of carrying on a mining operation. The second respondent never pursued that purpose but was required to pursue a mining operation of some kind at some time if it was ever going to comply with the condition imported by 276(1)(a), which required that it use the land for the purposes for which the lease was granted, and those purposes were only those in section 21(1) of the Mining Act and none of them was ever pursued. To come back to your Honour’s question, we deal with that at application book 81 at 2.7 and point out that nothing ever:

prevents a leaseholder from complying with a condition that mined land be rehabilitated –

The question which arises in this case is whether the second respondent ever pursued the purpose for which the lease – any purpose for which the lease could have been granted, and by not so much as turning a shovel of soil on this land, then they failed to do that which could have satisfied the provisions of section 21, and if the Court of Appeal had engaged with the construction of the statute, that would have been clear. Rather, we submit, the court failed to appreciate even the distinction between the types of purpose contemplated by section 21.

If I can take you to paragraph [144] of the judgment which appears at application book 47, this paragraph concludes his Honour’s consideration of the evidence said to be relevant to the concept of “care and maintenance” and his Honour concluded that care and maintenance was a “purpose”. Even if it was accepted hypothetically that care and maintenance could be a purpose, it would have to be allowed that it was a purpose which was not a purpose being that of winning mineral.

If I can take you back to section 21 of the Mining Act, reproduced at application book 21, line 1, in essence it reveals that there are, broadly speaking, two types of purpose contemplated by the Act and the difference between them is made explicit by the words in parentheses in subsection (1)(b). The first type of purpose involves winning mineral and “purposes necessary to . . . carry on that mining operation”.

Alternatively, a lease can be granted for a purpose that does not involve winning mineral, but in that case there are two requirements. First, it has to be “specified in the lease”. Second, it has to be “connected with the purpose of carrying on a mining operation”. It has to connect with something being carried on. Can we deal with the first issue, coming back to the terms of paragraph [144] of the judgment? His Honour writes there that:

Zedemar was fulfilling a purpose “necessary to effectually carry on that mining operation” –

That is the language of section 21(1)(a), but could not have application in this case because the second respondent never carried on a mining operation. If care and maintenance was ever to be a purpose, it could only have been one pursuant to section 21(1)(b), but then of course it would have to be specified in the lease, and it was not. So we submit in paragraph [144] your Honours have clear and functional error committed by the Court of Appeal because care and maintenance did not and could not demonstrate the fulfilment of any purpose contemplated by section 21, and the majority of the Court of Appeal erred when it held that it did.

FRENCH CJ: The court was concerned with whether the ministerial decision was open on the statute, was it not, and as a matter of characterisation?

MR CALLAGHAN: That was the question, yes, framed neatly - - -

FRENCH CJ: Not whether it thought it would renew or not, but it was a question of what was a – this was a judicial review application, was it not?

MR CALLAGHAN: It was, but the question is probably neatly framed in Justice Fryberg’s judgment at application book 33, paragraph [72] and the answer to the question depends on entirely, as we submit, on the construction of the statute and the one factual proposition - - -

FRENCH CJ: On the particular facts.

MR CALLAGHAN: Well, on one particular fact and only one fact, which was not in dispute, and by failing to appreciate the effect of the statute, the majority of the Court of Appeal did digress, we submit, into consideration of factual matters which really had no bearing on the decision whatsoever, ought to have had no bearing on the Minister’s decision and which were entirely unnecessary to consider, when it was acknowledge, as it had been, that the second respondent had never mined the land the subject to the lease.

The majority, in effect, found that the decision was open on two basis: one, there was that care and maintenance had been conducted, and the other was that rehabilitation or something called rehabilitation had been conducted. Well, as we have submitted, neither of those could relevantly be a purpose, but in any case, neither could have been something necessary to, or connected with anything done by, anything carried on by, the second respondent.

Whatever this second respondent did, the entirety of the time it had the lease, was not something connected with the purpose of carrying on a mining operation because they never carried one on. So, whatever they have done, on any view of the evidence, there could not have been compliance with the lease or - - -

FRENCH CJ: Now, looking at the criteria for the grant of special leave, the relevant one would appear to be that there is a question of law of public importance, whether because of its general application or otherwise, and when I see your summary of argument, it begins with identifying the question, the special leave question, as to whether the holder of a Queensland mining lease has to “use it or lose it”. Now, I know you picked that up from Justice Fryberg’s judgment but - - -

MR CALLAGHAN: We did.

FRENCH CJ: - - - do you think you can formulate the question in a way that actually answers the criterion in section 35AA(i) of the Judiciary Act, that I just mentioned?

MR CALLAGHAN: It is, is the holder of a mining lease in Queensland required to carry on a mining operation, would be my extemporaneous response to your Honour’s question – perhaps adding, I am indebted to my learned friend, as a precondition to the renewal of such a lease.

FRENCH CJ: One can imagine a situation where there has been a mining operation and then there is somebody succeeds to the lease and under some arrangement carries out rehabilitation work and does not do a tap of mining.

MR CALLAGHAN: In which case they would not be – if they do not mine at all they would not be eligible to have that lease renewed. That is the point.

FRENCH CJ: Even though the rehabilitation requirement was imposed by law and so forth.

MR CALLAGHAN: As a condition, but that is not the end of the matter. It has to be used for the purposes for which the lease was granted. Rehabilitation could, I suppose, be included as a purpose pursuant to section 21(1)(b), but it would have to be specified in the lease.

FRENCH CJ: But it might be seen as integral to the concept of mining, might it not? There are lots of things around digging a hole that make - - -

MR CALLAGHAN: Your Honour, that may be so, but that is the very trap, we submit, into which the Court of Appeal fell by considering this matter in what we would say, with respect, was a fairly loose fashion. For example, can I take you to application book 41, paragraph [106] of the judgment. This is central, functional and stark, we would submit. The applicants’ proposition is that the fact that Zedemar had not extracted minerals from the lease area does conclude the issue. His Honour’s answer to that proposition, though, is:

If its activities included any activity “connected with the purpose of carrying on mining operations” that would suffice.

Standing alone, that paragraph, we submit, is plainly wrong. It is using the language of 21(1)(b) and a purpose or an activity connected with the purpose of carrying on mining operations will only suffice if it is specified in the lease.

CRENNAN J: What weight do you give to any – any of the following purposes in section 21(1), to be found on page 41, the same page?

MR CALLAGHAN: It has significant weight because the applicants had to assume the burden of demonstrating that it had not been used for any of the following purposes, but that was the case.

CRENNAN J: But you seem to be contending that (a) and (b) are cumulative requirements.

MR CALLAGHAN: No, your Honour.

CRENNAN J: You cannot undertake any of the matters covered by (b) unless you happen to be the person who has also undertaken mining covered by (a).

MR CALLAGHAN: We do not submit that they are cumulative, but the mining still has to be carried on by the lessee. It is for the purpose of carrying on. The words are not, as paraphrased, for example, again, by the Court of Appeal. I will take you to application book 23, line 24, paragraph [25], the second line form the bottom:

Activity relevant to the lease was taking place.

That is not the test, nor is anything less than strict compliance with the statute required. Now, compliance with (1)(b) could be achieved but, as we point out, (1)(b) relates to conditions that are specified in the lease. The only one said to be of relevance by the majority was the condition of rehabilitation and we have dealt with that. It was a condition, not a purpose, and the requirements are cumulative.

The requirements imposed by section 276 of the Mineral Resources Act are cumulative. There is required to be compliance with the conditions of the lease and the purposes of the lease. The applicants did have to demonstrate, and did, that the second respondent had not complied with any of the purposes, had not pursued any of the purposes, for which he could have been provided.

FRENCH CJ: Thank you, Mr Callaghan.

The applicant seeks special leave to appeal from orders of the Court of Appeal of the Supreme Court of Queensland. By majority the Court of Appeal dismissed the applicants’ appeal against orders of the Supreme Court dismissing an application for judicial review of two decisions relevant to the renewal of a mining lease at Ipswich.

The first decision, made by the first respondent, was to report to the Governor in Council that the Minister was satisfied that the terms of mining lease ML 4712 had been complied with, and to recommend the renewal of that lease in favour of the second respondent. The second decision, made by the Governor in Council, was to grant the renewal of the lease for a period of 15 years.

The applicants seek to raise a question of statutory construction of the Mineral Resources Act 1989 (Qld) relevant to mining leases in Queensland. The question, however, is really one of contested characterisation of an activity said to be relevant to the purposes for which the lease was granted. In the context of a judicial review proceeding, we are not satisfied that the approach to characterisation adopted by the Court of Appeal raises a question of sufficient public importance to warrant the grant of special leave. Special leave will be refused, the applicants to pay the first respondent’s costs of the application. The Court will now adjourn to reconstitute.

AT 11.31 AM THE MATTER WAS CONCLUDED