Bromley v Muswellbrook Coal Co Pty Ltd

[1973] HCA 56

HIGH COURT OF AUSTRALIA

. Barwick C.J., Menzies, Stephen and Mason JJ.

BROMLEY v. MUSWELLBROOK COAL CO. PTY. LTD.

(1973) 129 CLR 342

30 November 1973

Mines and mining (N.S.W.)

Mines and mining (N.S.W.)—Mining lease of private lands—Marking out boundaries of land desired to be leased—Whether permit to enter a condition precedent to marking out—Power of Minister to grant lease when no permit granted—Mining Act, 1906 (N.S.W.), ss. 48A*, 70B (1)**. *Post pp. 344-345. **Section 70B (1) of the Mining Act, 1906 (N.S.W.) provides that "Any person who desires to obtain a lease of private lands for the purpose of mining for minerals not reserved to the Crown and who has, either personally or by his agent, in the prescribed manner, marked out the boundaries of the land desired to be leased, may, in the prescribed manner, apply to the Minister for a lease thereof."

Decisions

November 30.
The following written judgments were delivered:-
BARWICK C.J. The circumstances of the case in which this appeal is brought and the statutory provisions necessary to be considered in order to determine the fate of the appeal are set out in reasons for judgment prepared by my brother Mason, which I have had the advantage of reading. (at p343)

2. I agree with my brother's conclusion that the respondent was not entitled to apply to the Minister for a lease of land in the ownership of the appellant at the time it made its application numbered 243 and that s. 58 (3) of the Mining Act, 1906 (N.S.W.) (as amended), would not warrant the Minister in granting the lease notwithstanding that the respondent had not duly marked out the boundaries of the land desired to be leased in the prescribed manner. I agree with my brother's reasons for reaching these conclusions which are sufficient to dispose of the appeal in favour of the appellant. (at p343)

3. A number of other matters were argued during the hearing of the appeal but, in my opinion, it is inappropriate to express any view about them having regard to the conclusion already reached. (at p343)

4. I agree that the appeal should be allowed. (at p343)

MENZIES J. By the judgment of the Court of Appeal of the Supreme Court of New South Wales under appeal, an appeal was dismissed from a judgment of Hope J. dismissing a suit by the present appellant (the owner) against the respondent company (the Coal Co.) to have it declared that the Coal Co.'s application no. 243 for a mining lease over thirty acres or thereabouts of the land of the owner near Muswellbrook was not, for a number of reasons, one that could lawfully be granted by the Minister. (at p343)

2. One reason for such a declaration which was not advanced, either at the hearing of the suit or upon appeal therefrom, but advanced upon this appeal, is that there had been no permit to mark out the land over which the lease was sought as required by s. 48A of the Mining Act, 1906-1969 (N.S.W.). Because a good deal of the case has been concerned with the details of the marking out which did take place and with its efficacy, it seems convenient to decide this matter of basic importance first, it being common ground that no permit under s. 48A had been applied for or granted before the marking out upon which the Coal Co. does and must rely. (at p334)

3. Section 48A came into force on 15th August 1969 with a number of other amendments, including amendments to s. 57 and s. 70B, relating to applications for leases. Application for lease no. 243 was lodged by the Coal Co. on 19th December 1969. The making of this application was preceded by (1) a marking out on 9th December of the boundaries of the land desired to be leased by the erection of eleven yellow posts; (2) the fixing of a possessory notice to one of these posts - the datum post - in purported compliance with reg. 6; (3) service upon the owner on 15th December of a notice of intention to apply for a mining lease: reg. 96 and Sch. 32; and (4) affixing upon the datum post on 16th December of a notice of application for a mining lease in purported compliance with reg. 96 and Sch. 32. The yellow posts, which were erected on 9th December, were driven into the ground beside eleven white posts whereby the land had been marked out on 6th November for the purposes of measuring the land as a step towards an application by the Coal Co. for an authority to enter made in May 1967 - no. 1247 - see Pt IV, Div. 2 and reg. 94. Such an authority, no. 6366, was granted on 17th November 1969 with the limitation that "Prospecting is to be restricted to surface observations. No boreholes or other excavations to be made." (at p344)

4. Neither on 6th November 1969, when the land was marked out by the erection of eleven white posts, nor on 9th December 1969, when the land was marked out with the eleven yellow posts, did the Coal Co. hold a permit under s. 48A, which is in the following terms:

"(1) The warden may, at the request of an applicant for an authority to enter under this Part (including Division 4A), or an intending applicant for a lease under this Part (including Division 4A), made in the prescribed manner, and on payment of the prescribed fee, grant a permit in the prescribed form authorising the applicant or intending applicant, as the case may require, to enter the land the subject of the application or intended to be included in the application, as the case may require, for the purpose of marking out the land. (2) A permit under this section shall entitle the holder thereof to enter, personally or by his agent duly authorised in writing, accompanied, if desired, by not more than three other persons, upon the land mentioned therein, for the purpose aforesaid, during a period named therein, which shall not exceed twenty-eight days, with right of ingress, egress and regress to and from the nearest practicable point of a public road, without incurring liability for trespass in respect thereof. (3) Such permit shall be exhibited on demand to the owner or occupier of the land therin mentioned. (4) During the currency of any such permit, unless and until an area has been marked out thereunder as aforesaid, the warden shall not issue another permit under this section in respect of the same land. (5) Any owner, occupier or other person who obstructs any holder of any such permit, or his agent, or any person accompanying such holder or agent, in the performance of any act, or interferes with, removes, destroys or defaces any mark made or any notice posted in pursuance of such permit, shall be liable for the first offence to a penalty not exceeding twenty dollars, and for the second or any subsequent offence to a penalty not exceeding one hundred dollars." (at p345)

5. Application no. 243 with which these proceedings are concerned was made under s. 70B and the basic question is whether an applicant who has marked out land without a permit under s. 48A can be granted a lease as a person who has "in the prescribed manner, marked out the boundaries of the land desired to be leased". Section 70B (1) is as follows:

"Any person who desires to obtain a lease of private lands for the purpose of mining for minerals not reserved to the Crown and who has, either personally or by his agent, in the prescribed manner, marked out the boundaries of the land desired to be leased, may, in the prescribed manner, apply to the Minister for a lease thereof. The provisions of section fifty-seven of this Act relating to applications under that section shall apply, mutatis mutandis, to applications under this section." (at p345)

6. Section 57 (1) is as follows:

"Any person who desires to obtain a lease of private lands and who has, either personally or by his agent, in the prescribed manner, marked out the boundaries of the land desired to be leased, may, in the prescribed manner, apply to the Minister for a lease thereof. Such application shall be for a lease to mine for gold or any minerals." (at p345)

7. Section 57 (10) gives priority to applicants in the order in which they marked out the area applied for. (at p345)

8. Although the language of s. 48A is enabling, I am satisfied that a marking out by a person without a permit thereunder is not a marking out for the purposes of s. 70B. These provisions came into the Mining Act together as did amendments to s. 57, including a new sub-s. (1) and sub-s. (10) . For the purposes of an application under s. 57 (1) and s. 70B the land has been "marked out" when what has been done has been done under the authority of a permit. Taken together they form a code governing the marking out of land for an application for lease of land marked out. It is not to be thought that a trespasser who marks out land could obtain priority under s. 57 (10) for what he has done unlawfully. The effect of the amendments has been to put effective marking out under the authority of the warden and it seems to me that a marking out without a permit from the warden is nugatory. (at p346)

9. Accordingly, the Coal Co.'s application is not an application authorized by s. 70B and cannot be granted under s. 58. It is unnecessary therefore to consider whether the marking out which did take place on 9th December 1969 was for other reasons ineffectual in support of the application under s. 70B. (at p346)

10. It is also unnecessary to consider the application of s. 47 (1) (a) of the Act. (at p346)

11. In my opinion the appeal should be allowed. (at p346)

STEPHEN J. I have had the advantage of reading the reasons for judgment of my brother Mason with which I am in full agreement. I do not wish to add anything to what he has said and agree, accordingly, that this appeal should be allowed and that a declaration should be made as proposed. (at p346)

MASON J. The respondent company ("the company"), as its name suggests, mines coal at Muswellbrook in the State of New South Wales. Some of its workings underlie the land of the appellant. Above these workings and elsewhere at and immediately below the surface of the appellant's land within an area of thirty acres approximately are valuable deposits of coal of which the company is now the lessee, having obtained a lease of them from a predecessor in title of the appellant. The appellant has no estate or interest in the coal; the ownership of the coal was severed from the ownership of the land before he acquired the land. However, he has at all material times resisted the efforts of the company to obtain access through his land to the deposits and to obtain a mining lease over the land. In earlier proceedings between the parties the appellant successfully blocked the company's application for a mining lease by demonstrating that it had failed to comply with the requirements of the Mining Act, 1906 (N.S.W.) as amended ("the Act") and regulations relating to the service of notice of the grant of an authority to enter and the giving of notice of intention to apply for a mining lease (Bromley v. Muswellbrook Coal Co. Pty. Ltd. (1969) 1 NSWR 174; aff (1969) 2 NSWR 85 ). (at p347)

2. The proceedings now on foot arise out of further endeavours made by the company to secure a mining lease over the appellant's land. Again the question for decision is whether the company has succeeded in complying with the requirements of the Act and regulations governing the marking out of land and the making of applications for mining leases. Again, unfortunately for the company, the question must be answered in the negative. But this is to anticipate, for it is necessary first, to describe the land, to indicate briefly what steps the company took to mark out the land and to apply for a lease and then to indicate why these steps fell short of a compliance with the requirements of the Act and the regulations. (at p347)

3. The appellant who has resided on the land since 1956 uses it principally for grazing purposes. Before May 1966 he became aware that the company might seek to acquire a mining lease and he was aware that the Act provided that no mining lease under Pt IV should

"except with the consent of the owner, extend to the surface of any land - (a) within fifty yards of any land bona fide in use as a garden

or orchard ..." (s.47 (1) ). In that month he planted seventy fruit trees on part of his land, within the area to which I have already referred. He has since cultivated and tended the trees. They have been pruned annually and regularly sprayed. Since 1968 they have been bearing fruit in increasing quantities. The primary judge held that the trees constituted an orchard. However, he also held that the appellant established and maintained the orchard for the purpose of preventing the company from acquiring rights to mine on the land. (at p347)

4. On 19th May 1967 the company applied for an authority to enter. The area applied for, which was subsequently shown by a compilation plan to have an area of thirty acres one rood ten perches, was not in the form of a parallelogram, but was of irregular shape, having no less than seven boundary lines and including within the boundaries portion of a road 100 feet wide. On 17th November 1969 the company was granted an authority to enter this land "to search for coal not reserved to the Crown" for a period of three months from the date of the authority. The company marked out the land on 9th December 1969 for the purpose of making application for a mining lease. It is said by the appellant that in a number of respects the marking out did not comply with the requirements of the Act and that part of reg. 96 which governs unsurveyed land. But on the view which I take of the case there is no need to enumerate the particular defects. What is of importance is that, according to the evidence, neither at the time of the marking out nor subsequently, did the company have either the appellant's consent to go upon his land for the purpose of marking out, or a permit to mark out under s. 48A of the Act. (at p348)

5. On 10th December 1969 the company made application no. 242 for a mining lease, although it had not given the appellant notice of its intention to apply for such a lease in accordance with ss. 70B (1) and 57 (4) . An endeavour was made to serve a notice on the appellant by certified mail on the following day, but he declined to accept it. The endeavour was in any event fruitless because the provisions of the Act and the regulations require service of notice of an intended application for a lease, not notice of an application which has already been made. (at p348)

6. Realizing that there had been a failure to comply with the Act and the regulations, the company on 15th December served on the appellant a notice of intention to apply for a mining lease in respect of the same land. On the following day the company affixed a similar notice to the datum post placed in the ground when marking out took place on 9th December, but it did not mark out the land again or affix a further possession notice to any of the posts previously placed in the ground. (at p348)

7. On 19th December the company made application no. 243 for a mining lease. The area applied for was that described in the compilation plan previously prepared. There were discrepancies between the area actually marked out and the area applied for. It is not material to list them. (at p348)

8. A warden's inquiry under s. 127 was directed by the Minister with reference to the company's two applications for a mining lease. After that inquiry application no. 242 was refused on 19th February 1971 and on 16th September 1971 the Minister informed the appellant that he had recommended to the Governor that application no. 243 should be granted. (at p349)

9. The appellant then commenced a suit against the company and a nominal defendant representing the Crown seeking an injunction restraining the grant of a mining lease to the company on application no. 243 and for other relief. Hope J. dismissed the suit and his decision was affirmed by the Court of Appeal. (at p349)

10. The first issue for determination is whether the company's failure to obtain a permit under s. 48A was fatal to the company's claim that it had marked out the land in accordance with the Act and the regulations. The point was raised by the appellant for the first time in the course of argument before us; it was not taken at first instance or before the Court of Appeal. Nevertheless, as it is a pure question of law, it must be considered. It was suggested that had the point been taken earlier the company and its advisers would have had the opportunity of investigating the possibility that the appellant had consented to the marking out. I need only say that, when account is taken of the relationship which existed between the parties and of the circumstances in which the marking out took place, the suggestion is quite fanciful. But the matter does not end there because, as will be seen, on the view which I take of the statute it requires that marking out shall take place under the authority of a permit. (at p349)

11. It was submitted that the authority to enter conferred lawful authority to enter on the appellant's land for the purpose of marking out on the footing that the conferment of a right to enter for that purpose is an incident of an authority to enter. A comparison of the provisions of the Act as it stood before the Mining (Amendment) Act, 1969 (containing s. 48A) came into operation on 2nd April 1969, and the Act after the amendment, together with the regulations, shows that this submission is misconceived. Neither the form of authority to enter prescribed by reg. 93 and Sch. 27, nor the authority to enter held by the company, are so expressed as to confer authority to mark out; they are confined to entry upon the land for the purpose of prospecting. The entitlement to enter in order to mark out was conferred by s. 57 (1) which was repealed in 1969. It authorized the holder of an authority to enter who complied with the requirements specified in the sub-section to "define upon the said land the boundaries of the portion desired to be leased". It is clear then that until 1969 the entitlement to enter the land of another for marking out was conferred, not by the authority to enter, but by the statute itself. What I have said relates to marking out in connexion with an application for a mining lease; in the case of a lease for mining purposes provision is made for the issue of a permit to enable the applicant to mark out (s. 60; reg. 98). (at p349)

12. The Mining (Amendment) Act, 1969 introduced new provisions governing the definition of boundaries and the priority to be accorded to competing applications for leases. The new provisions begin with s. 48A which provides for the issue by the warden to an applicant for an authority to enter or an intending applicant for a lease of a permit entitling the holder and three other persons to enter upon land for the purpose of marking out for a period not exceeding twenty-eight days (s. 48A (1) and (2) ). The permit is to be shown on demand to the owner or the occupier (s. 48A (3) ). During the currency of the permit, unless and until an area has been marked out, the warden shall not issue another permit (s. 48A (4) ). It is an offence for any person to obstruct the holder of a permit or to interfere with any mark made or notice posted pursuant to such a permit (s. 48A (5) ). (at p350)

13. At the same time the old s. 57 (1) was replaced by a new subsection in the following terms:

"Any person who desires to obtain a lease of private lands and who has, either personally or by his agent, in the prescribed manner, marked out the boundaries of the land desired to be leased, may, in the prescribed manner, apply to the Minister for a lease thereof." (at p350)

14. Two new sub-ss. (10) and (11) were added to s. 57 to regulate the priority of competing applications for the same land. Priority is given to the person who first marks out. For the purpose of these provisions "marking out" is defined as the act of erecting a datum post provided that the mode of marking out prescribed by the regulations is forthwith complied with. (at p350)

15. Finally, s. 70B (1) which formerly provided that the holder of an authority to enter who complied with certain conditions might apply for a lease in the manner prescribed by s. 57, was replaced by a new sub-section which provides that

"Any person who desires to obtain a lease of private lands for the purpose of mining for minerals not reserved to the Crown and who has, either personally or by his agent, in the prescribed manner, marked out the boundaries of the land desired to be leased, may, in the prescribed manner, apply to the Minister for a lease thereof."

The provisions of s. 57 are expressly made applicable to applications under s. 70B (1). (at p350)

16. These provisions now make it abundantly clear that the only authority which an intending applicant for a mining lease of private lands can acquire under the Act to enter upon the land of another for the purpose of marking out is that which a permit under s. 48A confers. This is of importance because under s. 70B a preliminary condition to the making of an application is that the applicant "has...in the prescribed manner, marked out the boundaries of the land". The question is whether the expression "marked out" means "marked out pursuant to a permit under s. 48A". (at p351)

17. In approaching this question one must keep firmly in mind that the Act cuts across the common law rights of owners and occupiers of private lands. It authorizes the appropriation of minerals on privately owned land by the holder of a mining lease and it authorizes him to carry on mining operations on that land. It specifies marking out of the land in the manner prescribed (subject to an exercise of the power contained in s. 58 (3)) as an essential preliminary to the making of an application for a mining lease. The authority conferred by a permit issued under s. 48A enables an applicant to mark out without committing a trespass to land. Against this background it is not to be supposed that the reference in s. 70B to an applicant who has marked out includes a trespasser who has marked out without a permit and without the consent of owner and occupier. Even less is it to be supposed that s. 57 (10) accords priority to a trespasser who marks out in advance of an applicant who marks out under the authority which a permit confers. (at p351)

18. In my view the reference in s. 70B to a person who has marked out is even more circumscribed than the reasons which I have thus far given for rejecting the respondent's argument would indicate. There are strong grounds for thinking that the issue of the permit forms part of the procedure to be followed by an intending applicant for a mining lease and that the reference is to a person who has marked out pursuant to a permit. Although it is an offence to interfere with marks placed or notices posted pursuant to a permit (s. 48A (5) ), no similar provision is made respecting interference with posts placed or notices posted, not under a permit, but with the consent of the owner and occupier. Secondly, s. 48A (4) confers on a permit holder during the currency of his permit an authority to mark out which is exclusive until he marks out. It gives the holder an advantage which, if availed of, will give him priority over other intending applicants who obtain a permit and mark out. The provision assumes that all marking out will take place in accordance with a permit; had it been intended to allow marking out otherwise than in accordance with a permit, there was no point in prohibiting the issue of concurrent permits. (at p351)

19. For these reasons the respondent was not in my view a person who had marked out the land applied for when it made application no. 243 for a mining lease. No doubt the power given by s. 58 (3) to grant a lease, notwithstanding that the applicant has not complied in every respect with the regulations, is to be "construed liberally", to use the words of Dixon C.J., Kitto, Taylor and Menzies JJ. in Associated Minerals Pty. Ltd. v. N.S.W. Rutile Mining Co. Pty. Ltd. (1961) 35 ALJR 296, at p 297 , where their Honours considered the similar provisions of s. 99 (3). But the exercise of this power cannot overcome the absence of a marking out of the kind contemplated by the Act. (at p352)

20. This conclusion has the consequence that the appellant is entitled to relief by way of declaration, and it makes it unnecessary for me to consider the other questions which were debated in argument, in particular the question whether part of the land the subject of the respondent's application was "land bona fide in use as" an orchard within the meaning of s. 47 (1) (a) of the Act. (at p352)

21. For the reasons stated I would allow the appeal and declare that the respondent is not entitled to the grant of a mining lease pursuant to application no. 243. (at p352)

Orders

Appeal allowed with costs.

Order of the Supreme Court of New South Wales (Court of Appeal Division) and decretal order made by Hope J. set aside.

In lieu thereof -
1. Declare that according to its true construction the Mining Act 1906 (N.S.W.), as amended, does not empower His Excellency the Governor of the State of New South Wales to grant to the respondent a mining lease pursuant to its application No. 243.
2. Order that the respondent pay the costs of the appellant of the proceedings in the Supreme Court before Hope J. and the Court of Appeal.