Broken Hill Cobalt Project Pty Ltd v Lord

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271
Hearing dates: 23 September 2022
Date of orders: 16 December 2022
Decision date: 16 December 2022
Before: Ward P at [1]; Mitchelmore JA at [173]; Kirk JA at [174]
Decision:

1.   Appeal allowed in part.

2.   Remit the matter to Duggan J on the question of quantification of the compensation payable by the appellants for the compensable losses identified at [43] and [44]-[46] of the primary judgment.

3.   Costs of the appeal be reserved.

4.   Direct the parties to file brief written submissions as to costs by 3 February 2023, with any brief reply to the other parties’ submissions on costs by 10 February 2023 with a view to the issue of costs being dealt with on the papers.

Catchwords:

ENERGY AND RESOURCES — Mining — Exploration — Licence — Rights — Land access — Where appellants hold Exploration Licences covering land forming part of Thackaringa Station, upon which respondents perform sheep farming — Where title to Thackaringa Station is comprised of freehold and leasehold titles, the leasehold being Crown leases permitting use of the surface of the land for grazing only — Where Exploration Licences held over Crown leasehold land only — Where appellants applied pursuant to s 140 of the Mining Act 1992 (NSW) for access arrangement — Where respondents applied for review of arbitrator’s decision pursuant to s 155 of the Mining Act 1992 (NSW)

ENERGY AND RESOURCES — Mining — Exploration — Licence — Compensation — Heads of compensable loss

APPEALS — Procedural fairness — Failure to give reasons — Adequacy of reasons

APPEALS — From finding of fact — No evidence

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Land and Environment Court Act 1979 (NSW), ss 33, 38, 39, 56, 57, 148

Land Acquisition (Just Terms Compensation) Act 1991 (NSW)

Mining Act 1992 (NSW), ss 155, 140, 141, 143, 148, 262, 272, Pt 5, Pt 8 Div 2, Pt 13 Div 1

Mining Regulation 2016 (NSW)

Western Lands Act 1901 (NSW)

Cases Cited:

Alexandria Landfill Pty Ltd v Transport for New South Wales (2020) 103 NSWLR 479; [2020] NSWCA 165

Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233

Botany Bay City Council v Farnworth Holdings Pty Ltd [2004] NSWCA 157

Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367

Caratti v Mammoth Investments Pty Ltd (No 2) [2018] WASCA 6

Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353

Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 262

Dadashy v Scholte [2021] VSC 246

David Anthony Lord v Broken Hill Cobalt Project Pty Ltd [2021] NSWLEC 126

Ebner v Official Trustee in Bankruptcy (2000) 205…

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Details
Case
[2022] NSWCA 271
Decision Date

CaseChat Overview and Summary

Broken Hill Cobalt Project Pty Ltd (the appellants) held exploration licences over land that formed part of Thackaringa Station, where the respondents conducted sheep farming. The title to Thackaringa Station comprised freehold and leasehold titles, with the leasehold being Crown leases that permitted surface use solely for grazing. The appellants' exploration licences were confined to the Crown leasehold land. The appellants sought an access arrangement under section 140 of the *Mining Act 1992* (NSW), and the respondents applied for a review of the arbitrator's decision under section 155 of the same Act. The appeal concerned the arbitrator's decision regarding access and compensation.

The primary legal issues before the court were whether the arbitrator had erred in law in determining the scope of compensable losses under the *Mining Act 1992* (NSW) and whether the arbitrator's reasons for their decision were adequate, raising questions of procedural fairness. Specifically, the court had to consider the heads of compensable loss that could be claimed by the landowners in relation to the exploration activities.

The Court of Appeal found that the arbitrator had made errors in law regarding the quantification of compensation. While acknowledging the arbitrator's findings on certain compensable losses, the court determined that the reasoning provided was insufficient to justify the exclusion of other potential heads of loss. The court applied principles of statutory interpretation to the *Mining Act 1992* (NSW) and principles of administrative law concerning the adequacy of reasons and procedural fairness.

The appeal was allowed in part. The matter was remitted to the primary judge for the quantification of compensation payable by the appellants for the compensable losses identified in the primary judgment. The costs of the appeal were reserved, with parties directed to file written submissions on costs.

Orders

Orders of the court

1. Appeal allowed in part.

2. Remit the matter to Duggan J on the question of quantification of the compensation payable by the appellants for the compensable losses identified at [43] and [44]-[46] of the primary judgment.

3. Costs of the appeal be reserved.

4. Direct the parties to file brief written submissions as to costs by 3 February 2023, with any brief reply to the other parties’ submissions on costs by 10 February 2023 with a view to the issue of costs being dealt with on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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