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
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- Case
- [2022] NSWCA 271
- Decision Date
CaseChat Overview and Summary
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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