Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd (No. 3)

[2010] QLC 104

LAND COURT OF QUEENSLAND

CITATION:  Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No. 3) [2010] QLC 104

PARTIES:Cherwell Creek Coal Pty Ltd

(applicant)

v.

BHP Queensland Coal Investments Pty Ltd, QCT Resources Pty Ltd, BHP Coal Pty Ltd, QCT Mining Pty Ltd, Mitsubishi Development Pty Ltd, QCT Investment Pty Ltd and Umal Consolidated Pty Ltd
(respondents)

FILE NO:MRA1332-08

DIVISION:General Division

PROCEEDING:  1.  General Application filed 28 September 2009 by the Respondents.

2.General Application filed 5 March 2010 by the Applicant

DELIVERED ON:                  2 July 2010

DELIVERED AT:                   Brisbane

HEARD AT:Brisbane

MEMBER:Mr WA Isdale

ORDER/S:1.      General Application by the Respondents dated and filed 28 September 2009 is refused.

2.    General Application by the Applicant dated 4 March 2010 and filed on 5 March 2010 is refused.

3.    Any submissions as to the costs of these Applications will be heard on a date and in a manner to be settled between the parties and the Court.

CATCHWORDS:         Land Court jurisdiction – Separate determination of an issue – Defence, application to strike out part of a defence

Mineral Resources Act 1989 ss 2, 363, 370, Part 18A, 722A to 722G

Land Court Act 2000 ss 5 and 7
Land Court Rules 2000 Rule 19
Acts Interpretation Act 1954 ss 14A, 14B, 22, 49A

BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd [2009] QLAC 0005, referred to
BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (No. 2) [2009] QLAC 0008, cited
Re Multiplex Constructions Pty Ltd [1999] 1 Qd R 287 at 288, referred to
Heery v Criminal Justice Commission [2001] 2 Qd R 610 at 621, referred to
Reading Australia Pty Ltd v Australian Mutual Provident Society & Anor 217 ALR 495, applied
Bass & Anor v Permanent Trustee Company Ltd & Ors [1999] 198 CLR 334 at [53], referred to
Michael Wilson and Partners Limited v Robert Colin Nicholls [2008] NSWSC 501, applied
Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 142, applied
Jacobson v Ross [1995] 1 VR 337 at 341, referred to
Pacminex (Operations) Pty Ltd v Australian (Nephrite) Jade Mines Pty Ltd (1974) 7 SASR 401, referred to
Johnston v Cooper & Paulsen [2010] QLC 0069 at 17, referred to
Day v Victorian Railways Commissioners (1949) 78 CLR 62 at 91, cited
General Steel Industries v Commissioner for Railways (NSW) (19640 112 CLR 125 at 129-130, cited
EPAS Ltd v James [2007] QSC 127 at [4]-[5], cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71], applied

APPEARANCES:                  Mr B O’Donnell QC and Ms J Chapple, instructed by Holding Redlich, Lawyers for the applicant

Mr SL Doyle SC and Mr AM Pomerenke, instructed by Allens Arthur Robinson, Solicitors for the respondents

Background

1. More than 30 billion tons of black coal is known to exist in Queensland. Much is to be found interleaved with other sedimentary rocks in the Bowen Basin. Stretching from the coastal town from which it takes its name to Theodore in the south and covering about 60,000 square kilometres, it extends beneath communities whose names are associated with coal mining; Collinsville, Moranbah, Dysart, Clermont, Blackwater and Moura, to name some.

   In a year, around 200 million tons of coal are mined in Queensland, at least three-quarters of it exported by sea to more than 30 countries worldwide.
   Coal, a sedimentary organic rock that will burn, is mainly carbon, hydrogen and oxygen and may be used as fuel in power generating plants, in steel and cement making, paper and chemical manufacture and even in food processing.

2. This case is about coal; about the applicant’s claim for compensation for its lost opportunity to commercialise a coal resource. It’s Originating Application, filed on 8 August 2008, sets out its claim. The applicant, Cherwell Creek Coal Pty Ltd, hereafter for brevity referred to as CC, claims that until the commencement of the Mineral Resources (Peak Downs Mine) Amendment Act 2008 No. 28 which commenced on assent on 9 May 2008 it was the applicant for Mineral Development Licence 364 (MDL 364).

3. That Act inserted a new Part 18A into the Mineral Resources Act 1989, sections 722A to 722G. Part 18A did a number of things:

   ·      Section 722A defined the applicant and prescribed persons who would go on to be the respondents and the commencement day, 9 May 2008.

   ·      Section 722B renewed Exploration Permit for Coal 545 (EPC 545), limited it to certain lands and imposed some conditions which do not at present require consideration. The renewal was for a term of 2 years from 9 May 2008 and was stated to have effect as if the Minister had granted it under the Act, the usual process.

   ·      Section 722C rejected, by statute, CC’s applications as set out in the section.

   ·      Section 722D stipulated that only the holders of Mining Lease 1775, the prescribed persons, now the respondents, could, for 2 years, a period which the Minister could extend, apply for or be granted a mining tenement for land covered by Application for Mineral Development Licence 364 (MDLA 364). No other mining tenement could be granted to anyone in respect of all or any of that land.

   ·      Section 722E made similar provisions for land that had been the subject of EPC 545 and that wasn’t already in a mining tenement or the subject of a then current application.

   · Section 722F made clear that the State of Queensland would have no liability to pay any compensation to CC in connection with the new Part 18A and, in particular, the rejection of CC’s application which was given effect to by s.722C.

   · Section 722G enacted that CC could apply to this Court for an order for the payment of compensation for the loss of its opportunity, because of the enactment of Part 18A, to commercialise the MDLA 364 coal resource. The application needed to be made within 3 months of 9 May 2008 and was in fact filed on 8 August 2008. It was provided that the holders of ML 1775 would be the parties, the respondents, to a claim by CC for compensation.

   This Court was given, by s.722G(4), specific jurisdiction. On an application under the section, it must decide whether any compensation should be payable and, if it decides compensation should be payable, it must decide the amount and make an order for payment of the amount by the respondents (hereafter BMA).
   The section goes on to set out, in sub-section 5, what this Court must have regard to and provides for an appeal.
   These reasons will address the Originating Application and the pleadings which followed it so far as is necessary to put into context the two applications which are presently before the Court. The applications have been the subject of detailed written submissions and in addition two days of submissions have been heard in Court. In these reasons I will use the structure provided by the parties’ written submissions to address their arguments both as reduced to writing and as presented in Court.

The Present Proceedings

1. In its Originating Application, CC claims that the likely extent of the coal resource is approximately 30 million tons of readily mineable predominately hard coking coal. The likely markets are said to be the export market for use in steel mills and as thermal coal. The likely life of the resource is stated to be approximately eight years. It is claimed that CC would have been granted Mineral Development Lease 364 (MDL 364) but for the enactment of Part 18A and that it would have commenced extracting a bulk sample in about April 2009 with production from around January 2010 until approximately December 2017. Naturally enough, it claims that a mining lease would have been issued to CC.

2. BMA filed a Defence on 13 October 2008. For present purposes it is necessary only to point out paragraph 3(b)(ii) and (iii), which are in the following terms:

   “(ii)    EPC 545 was not validly granted in 1994 and not validly renewed in August 2003;

   (iii)     Without a valid grant of EPC 545, no mineral development licence or mining lease could or alternatively would have been granted to the applicant;”

1. In its Reply filed on 30 March 2009, CC, in paragraph 2(b) denies the allegations set out in [5] above.

2. In further and better particulars of the defence filed on 24 April 2009 in response to a request from CC dated 23 January 2009, BMA states in paragraph 3 that its particulars of paragraph 3(b)(ii) of the Defence are those set out after 3(b)(iii) thereof.

   This clarifies what seems to be typographical error in the Defence and states that the words in bold print “Particulars of (iii) and (iv)” will in due course be amended to read “Particulars of (ii) and (iii)”. Those particulars in the Defence expand on the claim that EPC 545 was neither validly granted not validly renewed.

3. In an Amended Defence filed on 28 August 2009, the foreshadowed correction was made and the claim of invalidity in paragraph 3(b)(ii) repeated. Also repeated is the allegation in 3(b)(iii).

4. While this was going on, a claim for an order that CC provide security for costs was being made and that issue was resolved by the Land Appeal Court. See BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd[1] and BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (No. 2).[2]

   [1] [2009] QLAC 0005.

   [2] [2009] QLAC 0008.

5. Meanwhile, in the Land Court, the issue developing between the parties was whether the invalidity question raised in 3(b)(ii) of what is now the Amended Defence should be determined as a separate question before the remainder of the dispute. In the absence of an agreement, BMA’s solicitors filed, on 28 September 2009, a General Application. By it, BMA applies to this Court for the separate determination of “… the questions raised by …” paragraph 3(b)(ii) of the Amended Defence. This is wide enough to include what is in 3(b)(iii).

6. On 29 September 2009, Member Mr PA Smith made orders directed to the preparation of this application for hearing on 18 February 2010.

7. On 13 January 2010, BMA filed its outline of submissions in support of its General Application. Describing the overall proceedings as “unique in nature, magnitude and complexity” (paragraph 1) it goes on to refer to “challenges of case management” (paragraph 2) and seeks an order that the questions raised by paragraph 3(b)(ii) be decided as a separate question prior to the other questions in the proceeding.

A “preliminary point” and “a significant issue”

1. In paragraph 7 of their outline, BMA’s counsel state that the application is made primarily in reliance upon Rule 19(2) of the Land Court Rules 2000, the relevant part of which is in the following form:

   “… a party may apply for, or the court may on its own initiative make or give, 1 or both of the following—

   (a)     an order about a preliminary point that may wholly or substantially decide a significant issue in the proceeding;

   (b)    an order or direction about the conduct of the proceeding, not provided for in these rules or under an Act, including an order about 1 or more of the following—

   (i)identifying and separating or making an early decision about the issues in dispute;”

1. Reliance is also placed, in paragraph 10, on s.7 of the Land Court Act 2000, which provides that:

   7    Land Court to be guided by equity and good conscience

   In the exercise of its jurisdiction, the Land Court—

   (a)is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and

   (b)must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.

2. I note that s.7 describes how jurisdiction which exists is to be exercised and does not itself confer jurisdiction.

3. Paragraph 12 of the submissions for BMA refers to the decision of the Court of Appeal in Re Multiplex Constructions Pty Ltd.[3] The passage is obiter and refers to the Supreme Court Rules prior to the Uniform Civil Procedure Rules 1999. The passage refers to the wide discretion given to judges under the Supreme Court Rules to decide questions which may not necessarily resolve the whole dispute but lead to its resolution “in a way which results in considerable savings in time and costs, often for reasons which are neither strictly legal or logical. It is therefore desirable that, wherever possible, judges should decide summarily questions which can be conveniently so decided.” This passage, in the joint reasons of Davies JA and Lee J, was agreed with by Pincus JA.

   [3] [1999] 1 Qd R 287 at 288.

4. In paragraph 13, the reasons of Thomas JA, with which Davies JA and Douglas J agreed in Heery v Criminal Justice Commission[4] were referred to. His Honour noted that considerable savings and efficiencies have been achieved by an increasing willingness by courts to make final determinations of particular questions and issues.

[4] [2001] 2 Qd R. 610 at 621.

1. The outline then proceeds to urge that separate determination is appropriate in the present case. Firstly, it is said that the question is discrete and the affidavit of BMA’s solicitor is pointed to in that regard. It is said that this material is un-contradicted. Since there is a discretion to be exercised, the opinions of BMA’s solicitor are not decisive but may nonetheless inform the exercise of the discretion.

2. At paragraph 19 and following, it is submitted that CC took the position in Supreme Court proceedings that this question could be determined separately. Those proceedings were for judicial review and in them CC opposed the proceedings being discontinued, something that BMA was, in the event, given leave to do and that it subsequently did discontinue.

3. It is said, at paragraph 23, that CC cannot, “with any credibility” now take a different view. It was not submitted that CC could not take a different approach but in essence that it would lose face by doing so. This point is minor in the course of the present dispute and the parties are entitled to take their chosen positions here.

4. At paragraph 25 and following it is submitted that if the separate question is determined adversely to CC, the outcome will be significant. At paragraph 26 it is claimed that “the foundation upon which Cherwell Creek’s whole case is built will be destroyed”.

5. At paragraph 22 parts of submissions made on behalf of CC in the matter of the application for security for costs are referred to as showing that CC had recognised that an adverse answer to the invalidity question would determine the entire proceedings.

6. It is also submitted that answering the question would enhance prospects of settlement or decide what is at least a significant issue.

7. The submissions for BMA also point to time, cost and resource considerations which are urged as weighing in favour of separate determination of the invalidity assertion, with “vast” savings of time, money and court resources.

8. The affidavit of BMA’s solicitor is called in aid to illustrate some potential savings and it is pointed out that it is un-contradicted by any other evidence.

9. In conclusion “common sense” is said to favour the course contended for and it is noted that there is no evidence of prejudice to CC if BMA’s application is granted.

10. On 17 February 2010, the outline of submissions on behalf of CC was filed. In it, it is contended that the answer to the question in issue would not be determinative but only one question among many.

    It is argued, in paragraph 2, that even if there was a defect which caused an invalidity of the exploration permit, that defect could have been cured.
    It is urged that the issue is not significant and to decide it separately would involve the duplication of expert evidence and necessitate determinations of the credit of witnesses who would be required to give evidence later in the proceedings. It is said that complex factual disputes would need to be resolved and that the case could be prolonged rather than shortened.

11. It is argued that the validity of EPC 545 is not determinative of CC’s claim for compensation under s.722G. That section directs consideration to the likelihood of a mining lease being granted and s.149 of the Act allows the Minister to correct a defective exploration permit. Also, it was possible for the Minister to reissue the permit.

12. It is argued that it would be necessary to determine mixed questions of law and fact and factual issues such as how the grant and use of EPC 545 may have interacted with the operation of the Peak Downs mine, which would require expert evidence.

13. At paragraph 19 and following, the outline addresses relevant authorities which show how the Court ought to approach the question of whether or not to separately determine the invalidity issue.

14. It is urged on behalf of CC that the Court should approach the matter on the basis that all questions in issue ought to be decided at one time at the hearing. In support of this, reference is made to Reading Australia Pty Ltd v Australian Mutual Provident Society & Anor,[5] a decision of Branson J. The case involved the Trade Practices Act 1974 (Cth) where the applicant sought a declaration that the respondent had engaged in misleading and deceptive conduct. It sought an order pursuant to O.29 r.2 of the Federal Court Rules 1979 that liability be determined separately from damages.

    At [7] Her Honour cites Order 32 of those Rules for the proposition that CC relies on, that ordinarily all issues are determined at one time. At [8] she sets out the principles governing the circumstances in which an order will be made under O.29 r.2 and at [9] refers to the ultimate issue in making an order under O.29 r.2 as being whether it is “just and convenient” for the order to be made.

    [5] 217 ALR 495.

15. That case is directed to the considerations applicable where O.32 of the relevant Rules provided a starting position and, by O.32 r.2, power to modify it.

16. In the Land Court, the starting position is found in the Land Court Rules 2000. Section 3(1) applies “these rules” to proceedings in the Land Court. Section 4 allows the Uniform Civil Procedure Rules 1999 (UCPR) be applied in the event that the Land Court Rules do not make provision for some matter that the UCPR does. It has not been suggested that there is any need to have detailed recourse to the UCPR for present purposes. The first question for this Court is whether there exists:

    “… a preliminary point that may wholly or substantially decide a significant issue in the proceedings”.

17. In understanding the content of this expression, the Court will be guided by s.7 of the Land Court Act 2000 (LCA) see [14]. The Act, by s.7, describes how the Land Court “must act”.

18. Section 5 of the LCA provides:

    Jurisdiction of Land Court

    (1)     The Land Court has the jurisdiction given to it under an Act.

    Note—

    Various Acts confer jurisdiction on the Land Court. See the Acts Interpretation Act 1954, section 49A.

    (2)     If jurisdiction for a proceeding is expressly conferred on the court under an Act, the jurisdiction is exclusive.

    (3)     Subsection (2) does not limit parts 3 and 4.

    (4)     The jurisdiction of the Land Court can not be ousted only because a proceeding before it is about claims or interests of an equitable nature or involves making a decision about title to land.

19. Section 49A of the Acts Interpretation Act 1954 is in the following terms:

    Jurisdiction of courts and tribunals

    If a provision of an Act, whether expressly or by implication, authorises a proceeding to be instituted in a particular court or tribunal in relation to a matter, the provision is taken to confer jurisdiction in the matter on the court or tribunal.

20. It will be necessary to look to the jurisdiction conferred on the Court in order to decide whether the point the subject of BMA’s application is a “preliminary point” and if so, one that “may wholly or substantially decide a significant issue in the proceeding”.

21. The relevant jurisdiction for present purposes is to be found in s.722G of the Act. It is sufficiently important to be set out in full. Section 722G was amended in a minor way by Act No. 17 of 2010 and the Act was reprinted as Reprint 11E which is correct for present purposes, as also is Reprint 11F.

    722GCompensation payment by prescribed persons

    (1)     Cherwell Creek may apply to the Land Court for an order for the payment of compensation for the loss of its opportunity, because of the enactment of this part, to commercialise the MDLA364 coal resource.

    (2)     An application may only be made within 3 months after the commencement day.

    (3)     The prescribed persons are parties to the proceeding on the application.

    (4)     On an application under this section, the Land Court must—

    (a)decide whether any compensation should be payable; and

    (b)if it decides compensation should be payable—

    (i)    decide the amount of compensation; and

    (ii)     make an order for payment of the amount by the prescribed persons to Cherwell Creek.

    (5)     In making a decision under subsection (4), the Land Court must have regard to the likelihood that, had this part not been enacted, Cherwell Creek, alone or in conjunction with another person, would have been able to commercialise the MDLA364 coal resource, having regard to the following matters—

    (a)the likely extent and quality of the MDLA364 coal resource;

    (b)the likely mineability of the MDLA364 coal resource;

    (c)the likely market for any coal mined from the MDLA364 coal resource;

    (d)the likely life of a mine for the MDLA364 coal resource;

    (e)the likely coal revenue generated from the MDLA364 coal resource;

    (f)the likely coal revenue generation costs;

    (g)the likelihood of a mining lease, appropriate for Cherwell Creek to commercialise the MDLA364 coal resource, being granted under this Act;

    Note—

    See sections 269(4) and 271(2) for matters that the Land Court and Minister take into account in dealing with an application for the grant of a mining lease.

    (h)any other relevant matter.

    (6)     Cherwell Creek may appeal to the Land Appeal Court against a decision of the Land Court under this section only on the ground of error of law.

    (7)     Subsection (6) applies despite the Land Court Act 2000, section 64.

    (8)     In this section—

    coal revenue generation costs means the costs of generating revenue from the MDLA364 coal resource, including the costs of, or relating to, the following—

    (a)the proving up of the MDLA364 coal resource;

    (b)mine planning and environmental planning;

    (c)development and construction of a coal mine and associated infrastructure;

    (d)compliance with this Act, the Environmental Protection Act 1994 and the Coal Mining Safety and Health Act 1999;

    (e)extraction of coal;

    (f)preparation of coal;

    (g)transportation, including access to railways, ports or other relevant infrastructure;

    (h)employed or contracted labour;

    (i)equipment;

    (j)marketing;

    (k)financing;

    (l)rent and royalties payable to the State.

    MDLA364 coal resource means the coal resource in the land that, as at the beginning of 14 April 2008, was the subject of application for mineral development licence 364.
    prescribed persons means the persons who are the holders of mining lease 1775 on the commencement day.

1. CC has applied in accordance with s.722G(1) to this Court for what is referred to in that sub-section. There is no dispute that it has done so within the time allowed by sub-section 2 and BMA are the parties in accordance with sub-section 3.

2. Sub-section 4 provides that the Land Court must decide whether any compensation should be payable and, if there should be compensation, it must decide the amount of it and order that BMA pay it to CC.

3. Section 722G(5) sets out that this Court must have regard to the likelihood that, had Part 18A not been enacted, CC, alone or with others, would have been able to commercialise the coal in Mineral Development Licence Application (MDLA) 364. Sub-paragraphs (a) to (h) set out things to which regard must be had; with (g) and (h) being of particular relevance for present purposes.

4. By s.14(4) of the Acts Interpretation Act 1954 a note, such as that after s.722G(5)(g) is part of the Act.

5. The note directs attention to ss 269(4) and 271(2) of the Act. Section 269(4) sets out what the Land Court shall take into account when making a recommendation to the Minister that an application for a mining lease be granted. Section 271 sets out the Minister’s role which is brought within the Land Court’s consideration by s.722G(5)(g).

6. In interpreting s.722G, s.14A of the Acts Interpretation Act 1954 is relevant. It is in these terms:

   14AInterpretation best achieving Act’s purpose

   (1)     In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.

   (2)     Subsection (1) does not create or extend criminal liability, but applies whether or not the Act’s purpose is expressly stated in the Act.

   (3)     To remove any doubt, it is declared that this section applies to an Act passed after 30 June 1991 despite any presumption or rule of interpretation.

   Example—

   There is judicial authority for a rule of interpretation that taxing legislation is to be interpreted strictly and in a taxpayer’s favour (for example, see Partington v AG (1869) LR 4 HL 100 at 122). Despite such a possible rule, this section requires a provision imposing taxation to be interpreted in the way that best achieves the Act’s purpose, whether or not to do so would be in a taxpayer’s favour.

   Section 22 of the Acts Interpretation Act 1954 provides that:

   22Act and amending Acts to be read as one

   An Act and all Acts amending the Act are to be read as one.

7. The Act’s purposes may be found in s.2, which provides:

   2Objectives of Act

   The principal objectives of this Act are to—

   (a)encourage and facilitate prospecting and exploring for and mining of minerals;

   (b)enhance knowledge of the mineral resources of the State;

   (c)minimise land use conflict with respect to prospecting, exploring and mining;

   (d)encourage environmental responsibility in prospecting, exploring and mining;

   (e)ensure an appropriate financial return to the State from mining;

   (f)provide an administrative framework to expedite and regulate prospecting and exploring for and mining of minerals;

   (g)encourage responsible land care management in prospecting, exploring and mining.

1. Section 722G was inserted into an Act which already contained provisions referring to the Land Court. Part 10 of the Act, “Administration and Judicial Functions” contains, in Division 2 of that Part under the heading “The Land Court”, seven sections discontinuously numbered from 363 to 381. Section 363 sets out the “Substantive jurisdiction” of the Land Court and deals with a wide variety of disputes which may arise in relation to prospecting, exploration or mining. It provides as follows:

   Division 2             The Land Court

   363  Substantive jurisdiction

   (1)The Land Court shall have jurisdiction to hear and determine actions, suits and proceedings arising in relation to prospecting, exploration or mining or to any permit, claim, licence or lease granted or issued under this Act or any other Act relating to mining.

   (2)Without limiting the generality of subsection (1), the Land Court shall have jurisdiction to hear and determine actions, suits and proceedings with respect to—

   (a)the right to possession of or other interest or share in any mining claim, exploration permit, mineral development licence or mining lease; and

   (b)the rights and entitlements to minerals mined under any mining tenement or other authority granted under this Act or any other Act relating to mining and to the products of mining; and

   (c)the area, dimensions and boundaries of land (including the surface area of land) the subject of a mining tenement; and

   (d)any encroachment or trespass upon or interference with or damage to land the subject of a prospecting permit, mining claim, exploration permit, mineral development licence, mining lease or other authority granted under this Act or the buildings, plant, machinery or equipment thereon; and

   (e)any matter arising between applicants or holders in relation to prospecting, exploring or mining, or arising between applicants or holders and owners of land in relation to prospecting, exploring or mining; and

   (ea)any dispute or other matter arising between persons identified in native title protection conditions as an explorer or as a native title party, if the conditions—

   (i)    under section 25AA, are included in the conditions imposed on a prospecting permit; or

   (ii)     under section 141AA, are included in the conditions determined for an exploration permit; or

   (iii)    under section 194AAA, are included in the conditions determined for a mineral development licence; and

   (f)any determination or review of compensation as provided for under this Act or any other Act relating to mining; and

   (g)the enforcement of any agreement or determination as to compensation under this Act or any other Act relating to mining; and

   (h)any assessment of damage, injury or loss arising from activities purported to have been carried on under the authority of this Act or any other Act relating to mining; and

   (i)any application required by this Act or any Act relating to mining to be made or heard in the Land Court.

   (3)The Land Court also has jurisdiction to hear and determine actions, suits and proceedings with respect to any demand for debt or damages arising out of or made in respect of—

   (a)the carrying on of prospecting, exploring or mining;

   (b)any agreement relating to prospecting, exploring or mining.

   (4)This section does not confer jurisdiction on the Land Court in relation to the recovery of wages or amounts owing under an industrial award or agreement.

2. Section 363(1) is in broad terms and sub-section 2, while expressed to not limit its generality, becomes more specific in the grant of jurisdiction to this Court.

   Section 364 allows for interim orders where there is some urgency or other relevant circumstance and ss 378, 380 and 381 confer other powers on the Land Court.

3. In the midst of these sections sits s.370. This provision had not been referred to by the parties until Member Smith directed attention to it on 18 February 2010. It provides that:

   370  Jurisdiction of Supreme Court

   (1)The Supreme Court has jurisdiction to hear and determine any proceeding challenging or otherwise relating to the validity of any grant that has been made pursuant to this Act or any Act repealed by this Act or any other Act relating to mining and, notwithstanding any other Act or law, that proceeding shall be heard and determined in that court only.

   (2)It is immaterial that the Crown is not a party to the proceeding.

   (3)If the grant in question is declared by the Supreme Court to be invalid, the declaration binds the Crown and a copy of the judgment or order of the court in respect thereof shall be served by the party who benefits from that declaration on the chief executive within 15 business days from the date of that judgment or order.

4. The proposed preliminary point, raised by a General Application, is no doubt a “proceeding” within the meaning ascribed in s.36 of the Acts Interpretation Act 1954. In my view the application is not properly characterised as a proceeding challenging the validity of a grant in that sub-section 3 refers to a declaration, indicating a type of proceeding different to that before this Court.[6]

   [6]     The Supreme Court might make a declaration on what would otherwise be a matter of history if it served a useful present purpose. See Tebbutt v Egg Marketing Board of New South Wales [1976] 2 NSWLR 179 at 188 at B to E per Hutley JA and cf Merricks & Another v Nott-Bower & Ors [1965] 1 QB 57 at 67D, per Lord Denning MR. Also reported at [1964] 1 All CR 717. In Taylor v The Minister [1973] 1 NSWLR 352 at 371A, Hutley JA expressed the view that:

   “where the whole right of action is vested in a particular court there cannot be brought a suit for a declaration as to part of the cause of action in another court”.

   In the present case there is not any such action now pending in another court so that no like difficulty arises.

5. The next question is whether what is contemplated in the preliminary question amounts to a proceeding “otherwise relating to the validity of any grant …”. The words that follow are quite broad as to the Act under which the grant might have been said to have been made, broad enough to leave no doubt that the grant in question in this case would be caught by them. Section 370(1) goes on to provide that:

   “… notwithstanding any other Act or law, that proceeding shall be heard and determined in that court only.”

   The expression “that court” refers to the Supreme Court.[7]

   [7]     See O’Grady v The Northern Queensland Company Limited (1989-1990) 169 CLR 356 at 368-369 where earlier versions of what is now sections 363 and 370 were to be found in the then sections 80 and 80A. At 375-376 Toohey and Gaudron JJ accepted that the bifurcation of jurisdiction was “not an entirely satisfactory one” but that this was a matter for the legislative. This is an example of the Court finding an interpretation which allows a legislative scheme to work rather than permitting it to be frustrated merely for inelegance.

   In Denning v Ipswich City Council (1990) 1 Qd R 528 at 531 the Full Court said “We have endeavored to find a means by which both provisions can stand together with full effect.”

6. The issue in 3(b)(ii) of the Amended Defence, which the General Application seeks to have determined separately is the validity of the grant of EPC 545.

7. I note that the words in s.370(1) which I have set out in [50] above do not say, for instance, “… and notwithstanding anything in this Act …”. In order to know whether the jurisdiction to decide the question in the preliminary point lies only with the Supreme Court it will be necessary to also consider whether anything in Part 18A bears on the question.

   Section 722G is the provision which is presently relevant. Sub-section 5 requires the Court to have regard to the matters specified in sub-paragraphs (a) to (h); (g) and (h) are most relevant. Sub-paragraph (g) refers to the likelihood of a lease being granted and a legal error may be relevant to that. The note refers to ss 269(4) and 271(2). Section 269(4) appears particularly relevant. Section 269(4)(a) requires the Court to take into account and consider whether the provisions of the Act have been complied with. Although a specific consideration which the Court must address, taking it together with the purposes of the Act, the power in s.392 for substantial compliance to be acceptable and the Minister’s power contained in s.149 of the Act to correct a defective exploration permit, such as EPC 545, owing to error in its preparation, I am satisfied that the identification of a legal error in an exploration permit does not establish that, for instance, a mining lease would not be granted.[8] I accordingly am of the view that s.722G(5)(g) does not confer a jurisdiction on the Land Court which conflicts in any way with s.370. Read together with s.370, s.722G(5)(g) will operate so that a legal difficulty with an exploration permit may be a relevant consideration as set out in (g) but such a finding is not one relating to the validity of the permit such that a declaration may be made as contemplated by s.370. These two provisions may both operate without any conflict so it is unnecessary to decide whether one displaces the other.

   [8]     The Land Appeal Court has already, in obiter, taken this view.

8. Concerning s.722G(5)(h), the words “any other relevant matter” will need to be understood within the rest of sub-section 5 and not so as to conflict with s.370 when the Act is read as a whole. It would not be a fair reading of such a bland general provision to find within it a grant of jurisdiction to this Court which conflicts with the Supreme Court’s jurisdiction under s.370. It is also noted that s.722G is not expressed to operate notwithstanding s.370. I prefer an interpretation of s.722G(5)(h) that allows it to apply to an extent which falls short of a conflict with s.370.[9]

   [9]     It has long been the situation that an Act needs to be considered as a whole. In Lincoln College’s case 1595 3 Co Rep 58b, 76 ER 764 at 767 of Lord Coke’s report it is said:

   “the office of a good expositor of an Act of Parliament is to make construction on all the parts together, and not of one part only by itself; nemo enim aliquam partem recte intelligere possit, antequam totum interim atque iterum perlegerit.

   For no one can rightly understand any part without perusing the whole again and again.

   Hoffman v Chief of Army [2004] FCAFC 148, also (2004) 137 FCR 520. In the judgment of Black CJ, Wilson and Gyles JJ at 22, quoting Gaudron J “there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other”.

   McIntosh v National Australia Bank Ltd 80 ALR 47 at 49 lines 40-45 indicate that it is appropriate to determine jurisdiction at an early stage; an uncontroversial proposition.

   In Goodwin v Phillips [1908] 7 CLR 1 at 7 Griffith CJ refers to a general rule that where provisions of an Act are “wholly inconsistent” with provisions of an earlier Act dealing with the same subject matter the earlier Act is repealed by implication. At 10, Barton J said that the court would need to be satisfied that the two enactments are so inconsistent or repugnant that they could not stand together before there could be an implied repeal of the earlier by the later enactment.

   In White v Mason [1958] VR 79 at 82 Herring CJ pointed out that special provisions will be unaffected by subsequent general legislation unless the Legislature makes it “abundantly clear” that it intends to do so.

   Provisions were found to be repugnant to each other in Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation & Ors (1980) 29 ALR 333, a decision of Deane J in the General Division of the Federal Court.

9. As ss 370, 269(4) and 271(1) were all in the Act when 722G was inserted and no doubt Parliament was aware of them, an interpretation favouring the operation of them all is more attractive, if available, and here it is available, than one which proposes primacy of one or more above another. In Part 18A the Parliament has considered and made provision for resolving conflicts between parts of Part 18A and other Acts or Laws. For instance, ss 722B(4) and (8); 722D(2), 722E(2), 722F(3) and 722G(7). Section 722E(6) is indicative of Part 18A being woven into the rest of the Act rather than falling for consideration on its own.[10]

   [10]    Barraclough v Brown & Ors [1897] AC 615 at 622 Lord Watson, in separate reasons, while agreeing with the decision of the other Law Lords found that there a right and a remedy were given “uno flatu”, in one legislative breath, and could not be disassociated from each other.

10. I am satisfied that, in terms of Rule 19(2), the issue in paragraph 3(b)(ii) of the Amended Defence is capable of being treated as a preliminary point that may decide an issue in the proceeding. It may wholly or at least substantially decide the issue. The remaining question is whether the issue is “significant” in the proceeding as opposed to insignificant or negligible.

    Although not capable of being determinative, the issue is on par with the others in s.722G(5). If determined adversely to CC it would not truncate the case and so have the attraction of the savings which that could offer but would sit as one of the matters set out in sub-section 5. As a matter standing amongst others of equal importance, the Court will need to decide if the discretion in Rule 19(2) ought to be exercised in favour of dealing with it first. It is significant, but not more so than the other issues to be determined.

11. Section 14B of the Acts Interpretation Act 1954 allows for consideration to be given to extrinsic material in order to assist with interpretation. The Explanatory Notes to the Bill which became the Act which inserted Part 18A were provided to the Court. I have not found the provisions requiring interpretation either ambiguous or obscure, nor would the ordinary meaning have led to a result that was either absurd or unreasonable so I have not found it necessary to call it in aid. It can also be used to confirm the interpretation which I have found by the ordinary meaning of provisions. Reading it for that purpose, it does indicate that part of its purpose is “To protect Cherwell Creek’s interests as far as possible”. Nothing in the interpretation I have arrived at is contrary to this so to that extent it lends some support.

    I note that “ordinary meaning” as defined in s.14B is the meaning derived as I have approached the interpretation.

12. If I am correct that the validity issue is a relevant consideration, is not taken away from this Court by s.370 and could not itself be determinative or nearly so of the whole case, then even standing as an equal of the other matters set out in s.722G(5) it is still open for consideration as “a significant issue” in respect of which a separate determination has been requested. The parties, both very ably represented by leading counsel with junior counsel and instructing solicitors, provided detailed assistance on this point.

13. As I have indicated, see [33] and [34], the Act constituting this Court and its Rules provide particular considerations which need to be borne in mind when reading decisions of other courts so far as those decisions are based on different rules. As to the judicial exercise of a discretion, however, they may be of assistance.

14. In paragraph 19 and following of CC’s submissions filed on 17 February 2010, considerations of general applicability are referred to. If there is to be a separate hearing and determination of the validity issue in view of what I have found to be its status among the other matters to be decided and since it will not be decisively important overall, then there would need to be some preponderance of advantage in proceeding that way. Departing from deciding all issues between the parties at one time may be more realistic where there is a question of law or where facts are agreed. In Reading v AMP (supra) Branson J at p.499(f) referred to some factors in favour of a separate determination. The saving of time and cost by narrowing the issues for trial or perhaps leading to a complete resolution or settlement would be important considerations. In this case, however, deciding this one issue will not narrow the issues, merely remove one of them. It could not resolve the case and, in view of what I have found to be its status, is not very likely to contribute to a settlement.

    There is no agreement on the facts which would make it more attractive to determine the mixed question of facts and law which would arise in determining the preliminary question.
    On page 499 at (g) Her Honour refers to questions weighing against the separate determination option, that issues may not be settled once and for all and that proceedings may be prolonged rather than shortened. As the validity question is simply one of a number of questions there is no reasonable prospect that its resolution will save any time and expense. It will present a mixed question of fact and law surrounding the granting and renewal of EPC 545 and deciding it would leave significant other issues unresolved, per Branson J at [8](d) and (e).
    Her Honour pointed out that the key question is whether it is “just and convenient for the order to be made”.

1. In Bass & Anor v Permanent Trustee Company Ltd & Ors[11] the High Court, in the reasons for decision of Gleeson CJ and Gaudron, McHugh, Gummow, Hayne and Callinan JJ pointed out the importance of dealing with the facts so that the preliminary question does not fail to bear fruit.

   In the present case, it must be borne in mind that at present there is no agreed set of facts relevant to the proposed preliminary question.

   [11] [1999] 198 CLR 334 at [53].

2. In Michael Wilson and Partners Limited v Robert Colin Nicholls,[12] Einstein J set out the considerations relevant to separate determination of issues at [25]. I particularly note (6) which is to the effect that “… before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings:”.

   At [8] in the material quoted by Einstein J there is a passage in turn taken from the decision of Giles CJ in Tallglen Pty Ltd v Pay TV Holdings Pty Ltd.[13] There Giles CJ refers to the need for proceedings to be carefully controlled lest fragmentation brings delay, expense or hardship. Hardship does not arise here but the avoidance of delay and minimisation of expense to all involved are relevant considerations.

   [12] [2008] NSWSC 501.

   [13] (1996) 22 ACSR 130 at 142.

3. As separate resolution of the invalidity issue must necessarily come before the remainder of the proceedings and has no realistic prospect of shortening the litigation, the fragmentation does not offer a potentially positive outcome to weigh against the disadvantages of fragmentation.

4. On 17 February 2010, an amended Reply was filed on behalf of CC. An amended further and better particulars of the defence was filed the same day. It is not presently necessary to consider them in detail.

5. On 18 February 2010, BMA’s Outline of Submissions in Reply was filed. It addresses the construction of Rule 19(2) as to what may be a “significant issue in the proceedings”. After referring again to the Multiplex and Heerey cases, paragraph 5 asserts that the issue concerns the “very foundation” of CC’s claim. I have already discussed this aspect and found it to be less than the foundation, but a part, of CC’s case.

6. It is put that CC is now taking the position that the issue is not “significant” and has taken a different position earlier in this Court when security for costs was in issue and also in the Supreme Court. Such a change of position would not, in my view, affect my decision on the point, however well it may serve as an opportunity to point out a change of position by CC.

   The submission in 5(b)(iii) that the magnitude of the task underlines the significance of the issue is not persuasive in view of my finding on the significance point.
   In (d) it is argued that the invalidity issue will need to be determined and “… involves a number of substantial questions of fact and law, and will take a number of days to be tried”. There is no doubt that it needs to be determined at some stage and the involvement of questions of fact does not rule out separate determination.
   

   [14]    Thornton Hall Manufacturing Ltd v Shanton Apparel Ltd [1989] 3 NZLR 304 at 316. There the Court of Appeal was of the view that where the Judge ordered the trial to be heard in 2 parts, expressing a view on one aspect of an issue to arise in stage 2 would not necessarily disqualify the judge from hearing stage 2.

   In Fitzalan v Queensland X-Ray Pty Ltd, Supreme Court, Cairns, 21/3/2005 His Honour Jones J exercised his discretion to order a separate determination of liability. At p.3 lines 10 to 20 His Honour saw that as a discrete matter in the case before him and made clear that he was exercising his discretion ie that this is a matter of judicial discretion.

   In CB Darvall & Darvall v Maloney & Anor [2006] QSC 345 at [42] Wilson J referred to the “wide discretion” to order separate determinations of questions even though this may not necessarily resolve the entire dispute. Her Honour cited Re Multiplex Constructions Pty Ltd [1999] 1 Qd R 287, 288.

   It is also argued that separate determination of this part of the case will be manageable. This consideration is not persuasive in the exercise of the discretion, however, in view of the relative importance which I have found that this matter has.[14]

7. In paragraphs 6 to 12 it is pointed out that BMA’s amended particulars have deleted the claim that there was no recoverable coal on EPC 545. This will eliminate any need for evidence on that aspect and is a consideration in favour of exercising the discretion so as to grant BMA’s application.

1. It is submitted in paragraphs 13, 13(the second iteration) and 14 that the Court ought not be concerned about the prospect of credit having to be decided in the preliminary matter since the evidence of Mr Wallin, even if relevant to the separate question, would only be marginally so since BMA’s case, relevantly, centres on a promise by the State not to do anything to prejudice its rights.

   I accept that the credibility of Mr Wallin, if it arose, would not be of such significance as to be a consideration weighing decisively against the application.

2. In paragraphs 15 to 16 it is submitted that it is not objectionable that the Court will have to determine facts. Reference is made to Bass v Permanent Trustee Company Ltd (supra) at [53] where their Honours quote from the judgment of Brooking J in Jacobson v Ross.[15] It is submitted that the reference in that passage to facts being judicially determined is quoted with “apparent approval”. The passage, while contemplating the judicial determination of facts in a preliminary question and certainly not suggesting that the need to do so will rule out the possibility of a separate hearing is really about the caution to be exercised before embarking on a process where finding facts would be necessary and the need to consider the implications for the whole case of finding facts in a preliminary part of it.

   [15] [1995] 1 VR 337 at 341.

3. The balance of these submissions is given over to the consideration of whether the separate hearing would prolong the proceedings overall. It is pointed out that CC has not provided any evidence to contradict the affidavit of Mr Pappalardo.[16] While that does helpfully inform the exercise of the court’s discretion, the submissions realistically accept Niels Bohr’s aphorism that predicting the future is very difficult. They add that the whole proceeding “… is likely to be very long indeed”. In the end it is urged, with an appeal to “common sense”, that there should be a separate question. The submissions conclude somewhat ominously that “It would be better to have two (or more) large but manageable trials rather than a single interminable and unmanageable one”. These concluding submissions appear to presage the possibility of the separate question being more time consuming than BMA’s solicitor’s affidavit estimate of five days or less and capable of being itself described as a large trial. Also indicated is the possibility of more of them, rather than this being a one-off step with real promise of providing a more speedy and economical resolution to the overall dispute. This indicates that a major consideration in favour of a separate question is not said, by its proposer, to be very likely.

   The suggestion that the separate question option should be grasped as the alternative is worse, “… a single interminable and unmanageable …” trial, bears some consideration. The Court will manage its process and endeavour to maximise efficiency and it is the role of the professionals engaged by the parties to use their genuinely best endeavours to reduce and refine the issues rather than to metaphorically shovel more into the Court’s machinery. Rather than accepting and proceeding on the defeatist and defeating assumption that the case will be both interminable and unmanageable both the parties and the Court have a responsibility to use the skills and tools available to make it as brief and inexpensive as possible and to make it manageable by actively managing it.

   [16]    Mr Pappalardo’s third affidavit, filed and sworn on 5 November 2009, states, at paragraph 8, that he does not consider that there will be any overlap between the evidence on the proposed separate question and the evidence on the remaining issues. Although not contradicted as such and therefore informative, it does not operate to determine the question of whether there should be a separate issue tried as if the exercise of that discretion were a matter of whether or not his opinion is un-contradicted by other sworn evidence. If that were so, there would be no discretion.

4. On 5 March 2010 a General Application was lodged on behalf of CC focusing attention on paragraphs 3(b)(ii) and (iii) of BMA’s amended defence dated 28 August 2009. Referring to s.370 of the Act it claims that this Court does not have jurisdiction to hear or decide those matters, the jurisdiction to do so being reposed, by s.370, with the Supreme Court only. Accordingly, it asks that the relevant paragraphs of the amended defence be struck out and for an order for costs. Land Court Rules 4 and 19 are relied on, as is Rule 171 of the UCPR, no doubt r.171(1)(a), that this part of a pleading discloses no reasonable defence.

5. I have already considered s.370 to the extent necessary for the purposes of the separate point which will reduce what is necessary to traverse here.

6. On 12 March 2010 brief submissions were filed on behalf of CC in support of this application, simply stating that since the jurisdiction of this Court does not extend to the validity issue, it is appropriate to strike that part of the defence out.

7. Submissions were filed on behalf of BMA on 19 March 2010 in response to this application. It asks for the application to be dismissed with costs and points out the high threshold needed to be reached before it would be correct to strike out part of a defence. After considering the Land Court’s remit under Part 18A, it is submitted that the invalidity question is part of the answer to whether compensation should be paid, as required by s.722G(4)(a).

   At paragraph 13, reference is made to the decision of the Land Appeal Court in BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (No. 2).[17] In [10] the Land Appeal Court said that:

   “There is a substantial issue in this case as to whether the original grant of EPC 545 to Cherwell Creek was void which is relevant to the assessment of the likelihood of a mining lease being granted, a matter to be taken into account in determining compensation under s.722G(5)(g) of the Mineral Resources Act.”

   In the same paragraph, the Court said that “… one of the critical issues to be determined …” is whether the statutory intervention caused a compensable loss to CC.
   A substantial and critical issue would be one which is properly part of a defence and ought not be struck out.[18]
   

   [17] [2009] QLAC 0008.

   [18]    Northern Rivers Television Ltd v Minister for Transport and Communications. Unreported, Federal Court of Australia BC 9003411. New South Wales District, General Division. Hill J. VG 40 of 1990; 30 May 1990. His Honour adopted the test expressed by the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130, at 130 Barwick CJ observed that:-

   “great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal”.

   Hill J was not persuaded that it had been clearly demonstrated that the court’s lack of jurisdiction was so obvious that the applicant’s case could not possibly succeed (see page 8 of His Honour’s reasons). See also Mr Mahon v Smith & Ors (1986) 69 ALR 527 at 531 lines 3-4 per Burchett J.

   When both applications were heard in Court, on 2 and 3 June 2010, I asked Mr Doyle SC for BMA if the passage quoted above was part of the ratio decidendi of that case or obiter dictum, see transcript of proceedings for 2 June 2010 at pages 1-33 and 1-34. He asserted the former. The decision was about an application for costs and the comment, in my view, was obiter dictum which leaves this Court free to decide the matters of the applications now before it without being bound by the comments referred to. I also note that it appears that the Land Appeal Court was not referred to s.370.

8. Extrinsic material, namely the explanatory notes already referred to and the Minister’s second reading speech are referred to in support of the proposition that Part 18A does not preclude BMA arguing the invalidity point. It is not necessary to refer to this in more detail in view of my finding that it is a significant issue. The same applies to paragraph 16.

9. Paragraphs 17 to 31 develop the argument that the conferral of jurisdiction in Part 18A is a specific grant of authority which might exclude the Supreme Court’s jurisdiction. Having decided that there is no conflict with s.370 in this case it is unnecessary to further consider this aspect.

10. At paragraphs 32 to 35 the argument is developed that s.370 does not derogate from the later enactment of Part 18A. Because of the views that I have taken, it is unnecessary to revisit this aspect.

1. Paragraphs 36 to 45 of the submissions argue a basis for concluding that s.370(1) does not conflict with paragraphs 3(b)(ii) and (iii) of the Amended Defence. Again, in view of my finding concerning the ability of Part 18A and s.370 to co-exist, it is unnecessary to consider this aspect further.

2. On 30 March 2010 submissions in reply were filed on behalf of CC. In a thorough examination of this Court’s jurisdiction, counsel, at paragraph 12 quoted from the decision of Wells J in Pacminex (Operations) Pty Ltd v Australian (Nephrite) Jade Mines Pty Ltd.[19] That passage was referred to by Member Smith in Johnston v Cooper & Paulsen[20] where His Honour said:

   [17]   A useful reference to the nature of disputes in the mining jurisdiction is found in the decision Pacminex (Operations) Pty Ltd v Australian (Nephrite) Jade Mines Pty Ltd,[21] Justice Wells described the Mining Warden’s jurisdiction thus:

   They perform for the mining community, to the members of which vociferous quarrels and violent disputes are not unknown, a service not dissimilar to that performed by the old courts of Piedpouldre. A mining Warden, too, is expected to know mining and miners, and the customs, expectations, practices and attitudes of those over whom they may be called to exercise their jurisdiction much as Lord Mansfield’s special juries understood the customs and practices of the bankers and merchants of old London. He should be able to deal, decisively, authoritatively, and promptly, with disputes that arise in the field.[22]

Piedpouldre means “dusty feet”.

I accept without reservation the accuracy of Wells J’s comments.

[19] (1974) 7 SASR 401.

[20] [2010] QLC 0069 at [17].

[21](1974) 7 SASR 401.

[22]    Referred to by White J in Queensland Decor Aggregates Pty Ltd v Cadman unrep SCQld 4 August 1997, and by King CJ in Carr v Simnovec (1980) 26 SASR 263.

1. Nothing in paragraphs 1 to 25 require that I revisit my finding in relation to the ability of s.370 to co-exist with Part 18A and the invalidity issue as I have characterised it. In regard to paragraph 26 I accept that the passage to which I have referred in [73] supra is indeed obiter dictum. The view I have taken of the scope of s.722G(5)(h) makes it unnecessary to further consider what is submitted in paragraph 27. Because of my view of s.370 it is not necessary to further consider paragraphs 28 to 33 which deal with the legislature, when endowing an existing court with jurisdiction to hear a matter, taking it as it is, with all of its limitations.[23]

   [23]    Electric Light and Power Supply Corporation Limited v Electricity Commission of New South Wales and Another (1956) 94 CLR 545 at 559-560.

   Gypsy Jokers Motorcycle Club Incorporated v The Commissioner of Police (2008) 234 CLR 532 at 555, 19-20.

   Houssein and Another v The Under Secretary, Department of Industrial Relations and Technology NSW and Another (1982) 148 CLR 88 at 96.

2. Paragraphs 34 to the end of the submissions contend for s.370 being given wide application such that the invalidity issue could only be dealt with by the Supreme Court. Again, my view as expressed earlier in these reasons makes it unnecessary to further consider these submissions.

3. On 5 May 2010, submissions were filed on behalf of BMA in reply. In support of the proposition that the relevant paragraphs of their defence ought not be struck out, reference is made to Day v Victorian Railways Commissioners;[24] General Steel Industries v Commissioner for Railways (NSW)[25] and EPAS Ltd v James.[26] On the view I have taken of the relevance of the allegation in question, no question of striking out that part of the defence could properly arise; BMA is entitled to have that question determined.

   [24] (1949) 78 CLR 62 at 91.

   [25] (1964) 112 CLR 125 at 129-130.

   [26] [2007] QSC 127 at [4] – [5].

4. In paragraph 16 reference is made to the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority[27] where their Honours said:

   “Conflicting statutory provisions should be reconciled so far as is possible
   69  The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute[45]. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole"[46]. In Commissioner for Railways (NSW) v Agalianos[47], Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed[48].
   70  A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals[49]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions[50]. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other"[51]. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
   71  Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision[52]. In The Commonwealth v Baume[53] Griffith CJ cited R v Berchet[54] to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".”

   On the view I have taken of s.370 at Part 18A it has not become necessary to attempt to reconcile any conflicting provisions.

   [27] (1998) 194 CLR 355 at [69] – [71].

5. It is not necessary to further consider the submissions from paragraph 25 to the end as there is no inconsistency to resolve.

6. In the two days occupied in the hearing of these two applications, a plan showing the relevant lands was provided to the Court by senior counsel for CC; it is Exhibit 1. Copies of the pleadings and particulars and folders containing copies of authorities were also helpfully provided. In addition, copies of other authorities to which reference was made in the course of argument were provided.

1. Concerning the General Application dated and filed on 28 September 2009 on behalf of BMA for separate determination of the issue in paragraph 3(b)(ii) of the Amended Defence; for the reasons I have given, the application is refused.

2. In regard to the General Application dated 4 March 2010 and filed on 5 March 2010 on behalf of CC for an order that paragraphs 3(b)(ii) and 3(b)(iii) of the amended defence dated 28 August 2009 be struck out; for the reasons I have given, the application is refused.

3. Both parties have, in their applications, sought costs. I will hear any submissions that the parties may wish to make on this aspect at a date and in a manner to be settled between the parties and the Court.

WA ISDALE

MEMBER OF THE LAND COURT

In BHP Queensland Coal Investments Pty ltd & Ors v Cherwell Creek Coal Pty Ltd [2009] QLAC 2005 at [21] the Land Appeal Court said:

“One factor which may be determinative of whether an order for costs would be made in the subject litigation may depend on the success of the appellants’ argument that the original grant to Cherwell Creek was void which would be an aspect of the likelihood of  a mining lease being granted as provided for in s.722G(5)(g).” Emphasis added.