Calcifer Industrial Minerals Pty Ltd v Daraleigh Pty Ltd as Trustee for the DC and ML Dillon Trust
[2010] QLC 46
•19 March 2010
LAND COURT OF QUEENSLAND
CITATION: Calcifer Industrial Minerals Pty Ltd v Daraleigh Pty Ltd as Trustee for the DC and ML Dillon Trust [2010] QLC 0046 PARTIES: Calcifer Industrial Minerals Pty Ltd
(applicant/respondent)v. Daraleigh Pty Ltd as Trustee for the DC and ML Dillon Trust
(respondent/applicant)FILE NO: MRA138-09 DIVISION: Land Court of Queensland PROCEEDING: Application for a rehearing DELIVERED ON: 19 March 2010 DELIVERED AT: Brisbane HEARD AT: Cairns PRESIDENT: Mrs CAC MacDonald ORDERS: 1. The application for a rehearing is refused.
2. The application to join Daraleigh Pty Ltd as a party to MRA1285-08 nunc pro tunc is refused.
3. The application for declarations pursuant to s.33 of the Land Court Act 2000 is refused.
4. The respondent Daraleigh Pty Ltd is to pay the costs of the applicant Calcifer Industrial Minerals Pty Ltd of and incidental to the hearing of the general application filed in this Court on 3 February 2010 unless the respondent contends that some other order ought to be made in which case:
(i) the respondent is to file any submissions within 14 days;
(ii) the applicant is to file and serve any response submissions within 14 days of receipt of the respondent's submissions;
(iii) the respondent is to file and serve any reply within 7 days of receipt of the applicant's submissions;
(iv) the Court will decide the question of costs on the written submissions of the parties without the need for oral argument.
CATCHWORDS: Application for rehearing – decision of Judicial Registrar to recommend grant of mining lease – nature of proceeding – no objection by landowner at time – extension of time to object not permissible – Landowner not a party to proceeding – no standing – s.31 Land Court Act 2000.
Application for declaration – no general supervisory jurisdiction of Land Court over Mining Registrar or Judicial Registrar – limited power of Court to grant declarations under Mineral Resources Act, Land Court Act s.33, Mineral Resources Act s.363.
Practice and Procedure – joinder of party to proceeding – leave necessary – where appropriate to grant leave – not so where proceedings long finalized. Uniform Civil Procedure Rules, r69(1)(b).
APPEARANCES: Mr C Wilson of Counsel for the applicant/respondent
Mr P Ambrose SC for the respondent/applicant
This is an application by Daraleigh Pty Ltd pursuant to s.363 of the Mineral Resources Act 1989 (the Act) and s.31 of the Land Court Act 2000.
The background to the application is that on 13 February 2003 Calcifer Industrial Minerals Pty Ltd lodged an application for a mining lease and for an environmental authority in the Department of Natural Resources and Mines, Mareeba. The application was for a lease over land owned by Daraleigh for the purpose of mining silica sand and mineral sand and for associated works and an access road. The evidence indicated that although there were some discussions between representatives of Daraleigh and Calcifer in the following two years, there was little activity in relation to the application from September 2005 until August 2008. In August 2008 Koolgarra Mining Pty Ltd acquired all of the issued shares in Calcifer and, following that acquisition, discussions between representatives of each company were revived. Certain steps (detailed below) were then taken to progress the mining lease application and on 31 October 2008, the application was referred for hearing to the Land Court by the mining registrar at Mareeba, pursuant to s.265 of the Act.
The mining lease application was heard by the Judicial Registrar of this Court who handed down his decision on 13 November 2008[1]. The Judicial Registrar decided to dispense with the hearing of the application pursuant to s.270(1) of the Act and accordingly, he dealt with the matter on the papers. He recommended to the Honourable the Minister for Mines and Energy that Mining Lease No. 20378 be granted over the whole of the application area for a term of 20 years.
[1] Re Calcifer Industrial Minerals Pty Ltd [2008] QLC 0204.
On 3 February 2010, Daraleigh filed an application in this Court seeking the following orders -
1. The decision and orders of the Judicial Registrar made 13 November 2008 be set aside.
2. The respondent be afforded an opportunity to object to the grant of the mining lease.
3. Directions be given for the hearing of the application for the grant of the mining lease and objections thereto.
4. The proceeding for the determination of compensation pending in the Land Court be stayed until the hearing of the application for the grant of mining lease has concluded.
At the hearing of the application, Counsel for Daraleigh, Mr Wilson, said that Daraleigh was seeking the leave of the Court, pursuant to s.31 of the Land Court Act, to have the matter reheard by the Court as constituted by a Member and that appropriate directions be made for the rehearing.
The basis of Daraleigh's application, as set out in the application filed in the Court, was that the decisions of the Judicial Registrar referred to above were made in breach of the Act and without affording natural justice to Daraleigh as follows -
1. The absence of the consent of Daraleigh as owner of the land (which included restricted land) as required by ss.238(2) of the Mineral Resources Act. The Judicial Registrar was required to be satisfied that the respondent consented to the grant of the application – s.270(1)(d) Mineral Resources Act.
2. Calcifer failed to comply with s.252B(1)(c)(i) Mineral Resources Act in that it failed to give a copy of the certificate of public notice and the application for mining lease to Daraleigh during the notice period.
3. Calcifer failed to comply with s.252B(4) of the Mineral Resources Act in that it did not publish the required information in an approved newspaper circulating generally in the area of the relevant land. The publication was made in the Tablelands Advertiser published in Mareeba, while the relevant land is situated approximately 30 kms south of Innisfail, the local paper being The Innisfail Advocate.
4. The last day for objections was 22 October 2008. Daraleigh did not receive the certificate of public notice until 17 November 2008. The Judicial Registrar's decisions to dispense with a hearing and recommend the mining lease to the Minister were made on 13 November 2008.
5. The mining registrar at Mareeba was aware on 4 November 2008 that Daraleigh had not been served with the certificate of public notice. The mining registrar wrote to Calcifer on 4 November 2008 seeking advice as to how the landowner was served as required and as had been declared by Calcifer. Calcifer advised the mining registrar on 18 November 2008 (after the Land Court decision on 13 November 2008) that Calcifer was then "taking steps" to have the documents sent to Daraleigh by registered post.
6. Daraleigh was not afforded natural justice in that Daraleigh was not advised of the time limit for objections nor given the opportunity to appear before the Judicial Registrar.
In oral submissions, Mr Wilson relied primarily on two of these matters as the basis for the application for leave to have the matters reheard under s.31 of the Land Court Act – the failure to serve the certificate of public notice during the notice period as required by s.252B(1)(c)(i) of the Act and non-compliance with s.238(2) of the Act. The consequence was, it was submitted, that Daraleigh had not been afforded natural justice.
Section 252B(1)(c)(i) of the Act provides that the applicant for a proposed mining lease must, within the notice period, give a copy of the certificate of public notice and the application for the mining lease to each owner of relevant land or any other land necessary for access to relevant land. The applicable notice period in this matter was 5 business days after the certificate was given to the applicant (s.252B(9)). The certificate of public notice was issued on 24 September 2008. Counsel for Daraleigh said that the certificate of public notice was not received by Daraleigh until 17 November 2008, that is after the Judicial Registrar's decision was handed down.
Section 252C provides that the applicant must, within five business days after the last objection day, give the mining registrar a statutory declaration as to compliance with s.252B. In this case the last day for lodging objections was nominated as 22 October 2008. No objection was lodged by Daraleigh by that date as Daraleigh did not receive the certificate of public notice until 17 November 2008.
Counsel for Daraleigh submitted that there had also been a failure to comply with s.238(2) of the Act which provides that a mining lease may be granted over the surface of land which is "restricted land" only if the owner consents in writing, and such consent is lodged with the mining registrar before the last objection day ends. An affidavit filed by Daraleigh shows that as at the date of the affidavit there were sheds and a stockyard situated on the land the subject of the mining lease application and that Daraleigh's consent to the grant had not been sought.[2]
[2] Affidavit of DC Dillon filed 8 February 2010.
As set out above, Daraleigh has applied for leave to have the application for the mining lease reheard pursuant to s.31 of the Land Court Act.
Section 31 provides –
"Rehearing after judicial registrar's decision
(1)A party to a proceeding who is dissatisfied with a judicial registrar's decision in the proceeding may, with the leave of the Land Court as constituted by a member, have the matter reheard by the court as constituted by a member.
(2)If the court grants leave, it may do so on conditions, including, for example, a condition about -
(a)the evidence to be adduced; or
(b)the submission to be presented; or
(c)the nature of the rehearing."
Counsel for Calcifer, Mr Ambrose SC, submitted that an application for a mining lease is an application by a party who is authorised under the Mineral Resources Act to be an applicant. If the matter goes to a hearing, the hearing is an administrative hearing and ultimately an administrative decision is made. Whether other persons may be heard depends upon whether the law permits that to take place. A person who has properly lodged an objection pursuant to the Act may be heard but only in relation to the objection and no more. Such a person is not a party and cannot be a party. The lease is not granted inter partes. In any event the decision of the Judicial Registrar is not a decision in a proceeding. It is a recommendation made in an administrative procedure not a decision in a proceeding. A decision in a proceeding is one which affects rights between parties.
I do not consider that it is necessary to determine the issues raised by Mr Ambrose SC in this submission. Comprehensive submissions as to those matters were not made by Counsel for either party at the hearing of this application. It is unnecessary to deal with Mr Ambrose's submission because, even if it is assumed that the decision of the Judicial Registrar is a decision in a proceeding, I consider that Daraleigh does not have standing to bring an application under s.31. The reason for this is that Daraleigh was not a party to the proceeding before the Judicial Registrar. If Daraleigh had lodged an objection to the mining lease application as required by and within the time specified by s.260 of the Act, Daraleigh would have been named as a party to the Land Court proceedings dealt with by the Judicial Registrar and would have been given the opportunity to be heard.
Mr Wilson said that the reason that Daraleigh did not lodge an objection was because it had not been served with a certificate of public notice as required by s.252B of the Mineral Resources Act.
Mr Ambrose contested Mr Wilson's submission that Daraleigh had not been served with a certificate of public notice in accordance with s.252B. Affidavit evidence filed by Calcifer shows that Calcifer sent the certificate of public notice to Daraleigh on 29 September 2008 by registered mail at the address of the property the subject of the mining lease application as shown in the official land title records held by the Department of Natural Resources.[3] Accordingly, Mr Ambrose SC submitted, the certificate of public notice had been duly served within the meaning of s.399(1)(b) of the Act.[4]
[3]Affidavit of DN Lockwood filed 19 February 2010.
[4]Section 399(1) of the Mineral Resources Act 1989 provides that -
"399 Mode of service of documents
(1)A notice or other document required by this Act to be given or served by a holder of, or applicant for the grant of, a mining tenement to an owner of land shall be duly given or served if -
(a) it is served personally upon the owner; or
(b)it is sent by registered post to the place of residence or business of the owner of the last known to the holder or applicant."
Again, it is unnecessary for me to resolve this issue. While it may be that Daraleigh was not served with the certificate of public notice as required by the Act, I do not consider that an application under s.31 of the Land Court Act is the appropriate way for Daraleigh to seek a remedy for any such failing. The fact remains that, on the assumption that the applicant and any objectors are parties to proceedings in this Court dealing with mining lease applications, Daraleigh was not a party to the proceeding before the Land Court when the mining lease application was considered by the Judicial Registrar who made the recommendations set out above. Daraleigh, therefore, has no standing to bring an application under s.31 of the Land Court Act.
The same problem arises in relation to Mr Wilson's submission that a rehearing should be granted because the recommendation for the mining lease was made over land which is restricted land without the consent of the landowner, contrary to s. 238(1) of the Act. An application under s.31 is not, in my opinion, the appropriate way for Daraleigh to seek to remedy any error in this regard.
There are compensation proceedings in progress in the Land Court which are set down for hearing commencing 27 April 2010. Those proceedings were commenced in the Land Court on 5 March 2009 by a referral from the mining registrar to the Court pursuant to s.279(5) of the Act. Daraleigh and Calcifer are parties to those proceedings. Mr Wilson sought to rely on those proceedings to submit that there was but one proceeding before the Land Court which encompassed both the application for a mining lease and the compensation proceedings.
I do not accept that submission. The compensation proceedings were referred to the Court after the mining lease application had been dealt with by the Court. The decision by the Judicial Registrar to recommend the grant of the mining lease was made in respect of proceedings where the only party before the Court was Calcifer. The compensation proceedings, when referred to the Court, identified Calcifer and Daraleigh as relevant parties and those proceedings have progressed with both companies recognized as parties.
Mr Wilson sought to avoid the consequences of that reasoning by applying, at the hearing of the general application, for leave to join Daraleigh as a party to the mining lease application proceedings (MRA1285-08) nunc pro tunc.
I am not prepared to accede to that application. Rule 69(1)(b) of the Uniform Civil Procedure Rules 1999[5] provides that the Court may at any stage of a proceeding order that any of the following persons be included as a party -
[5] Rule 4(1) of the Land Court Rules 2000 provides that
"4 Application of Uniform Civil Procedure Rules
(1) If these rules do not provide for a matter in relation to a proceeding in the court and the Uniform Civil Procedure Rules 1999 (the uniform rules) would provide for the matter, the uniform rules apply in relation to the matter with necessary changes."
"69 Including, substituting or removing party
…
(1)(b) any of the following persons be included as a party -(i)a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceedings.
(ii)a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding."
The decision of the Judicial Registrar was handed down on 13 November 2008. The appeal period has long expired. Although s.31 contemplates that an application for a rehearing may be made and no time limit is specified for the making of such an application, the proceedings in the Land Court relating to the application for the mining lease have otherwise been finalised. In my opinion there is no longer a proceeding in existence to which Daraleigh could be joined as a party.
In any event, even if it were possible to join Daraleigh as a party to the mining lease application proceedings there would be little point in making such an order. Section 268(3) of the Mineral Resources Act provides that the Land Court shall not entertain an objection to an application if the objection is not contained in an objection that has been duly lodged in respect of the application. In Lee v Kokstad Mining Pty Ltd,[6] the Court of Appeal said that there was no room for the Land Court to extend the time for filing an objection to a mining lease application. Thus even if I were to order that Daraleigh be included as a party to the mining lease application proceeding nunc pro tunc, the Court would not be able to hear evidence from Daraleigh in objection to that application.
[6] [2007] QCA 248.
Mr Wilson then sought, at the hearing of the general application, a declaration, pursuant to s.33 of the Land Court Act, in relation to the lack of compliance with ss.238 and 252B and 252C of the Mineral Resources Act and also of the sections governing the Judicial Registrar being ss.269 and 270. Mr Wilson submitted that the Court had jurisdiction to make such declarations pursuant to s.363 of the Act, in particular s.363(1) and s.363(2)(e). Mr Ambrose SC submitted that the Court did not have the power under those provisions to make the declarations sought and, more importantly, that the persons against whom the declarations were sought, being the mining registrar and the Judicial Registrar, were not before the Court.
In my opinion the Land Court does not have a general supervisory jurisdiction over the mining registrar or the Judicial Registrar. Decisions of the Judicial Registrar may be appealed in accordance with the provisions of the Land Court Act or any other relevant legislation and, in an appropriate case, a decision may be the subject of an application for a rehearing under s.31 of the Land Court Act.
I do not consider that the jurisdiction given to the Court under s.363(1) and s.363(2)(e) of the Mineral Resources Act supports the declarations sought. Section 363(2)(e) applies to matters arising between applicants and owners of land in relation to mining etc. While there is a dispute between an applicant for a mining lease and the owner of land, the declarations sought do not relate to the parties to that dispute. Rather, they relate to the decisions of the mining registrar and the Judicial Registrar.
Section 363(1) is couched in more general terms than s.363(2)(e). Nevertheless I do not consider that that section is wide enough to be interpreted as a grant of jurisdiction to conduct administrative review of either the decisions of the mining registrar or the decision of the Judicial Registrar. In my opinion, the matters ventilated at the hearing before me concern the process which was followed in relation to the application for the mining lease. They are not "actions in relation to prospecting, exploration or mining" as referred to in s.363(1). In any event, as pointed out by Mr Ambrose SC, neither the mining registrar nor the Judicial Registrar is a party to this proceeding and they have not had the opportunity to be heard in relation to the declarations sought.
The applications are refused for the reasons set out above. Unless there are submissions to the contrary, Daraleigh must pay Calcifer's costs to be assessed on the standard basis.
ORDERS
1. The application for a rehearing is refused.
2.The application to join Daraleigh Pty Ltd as a party to MRA1285-08 nunc pro tunc is refused.
3.The application for declarations pursuant to s.33 of the Land Court Act 2000 is refused.
4.The respondent Daraleigh Pty Ltd is to pay the costs of the applicant Calcifer Industrial Minerals Pty Ltd of and incidental to the hearing of the general application filed in this Court on 3 February 2010 unless the respondent contends that some other order ought to be made in which case:
(i)the respondent is to file any submissions within 14 days;
(ii)the applicant is to file and serve any response submissions within 14 days of receipt of the respondent's submissions;
(iii)the respondent is to file and serve any reply within 7 days of receipt of the applicant's submissions;
(iv)the Court will decide the question of costs on the written submissions of the parties without the need for oral argument.
CAC MacDONALD
PRESIDENT OF THE LAND COURT