DC & DS Bradey Pty Ltd v State of SA & PGH Industries Ltd No. Scgrg-96-434 Judgment No. 6321 Number of Pages 32 Mining Law Legislation Relating to Mining for Minerals

[1997] SASC 6321

IN THE SUPREME COURT OF SOUTH AUSTRALIA

DEBELLE, J

Mining law - legislation relating to mining for minerals - mining on private property and resumption for mining purposes - private mine - application for a private mine in respect of land not owned by applicant - applicant held mining lease - whether applicant entitled to apply - proclamation made declaring private mine - proclamation ultra vires - proceedings instituted 22 years later to quash proclamation - whether plaintiff defeated by delay - order setting aside proclamation. Mining Act1971; s5(2), s6, s9, s19, s38, s58, s60, s75; Mining Act 1930; s20, s120; Crown Lands Amendment Act 1888 ; Mining Regulations 1972; reg 37; Supreme Court Rules r84.12, r98.06, referred to. Emerald Quarries Pty Ltd v Commissioner of Highways (1976) 14 SASR 486; R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170; Smith v East Elloe Rural District Council [1956] AC 736; Hoffmann-La Roche & Co A.G. v Secretary of State for Trade and Industry [1975] AC 295; Eastern Waste Management Inc v City of Tea Tree Gully (1996) 92 LGERA 1; Kioa v West (1985) 159 CLR 550; Annetts v McCann
(1990) 170 CLR 596; Ainsworth v Criminal Justice Commission (1992) 175 CLR
564; Commissioner of Police v Tanos (1958) 98 CLR 383; Haoucher v Minister for Immigration (1990) 169 CLR 648; R v Commonwealth Conciliation & Arbritration Commission; ex parte Angliss Group (1969) 122 CLR 546; National Companies & Securities Commission v New Corporation Ltd (1984) 156 CLR
296; FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Potter v Minahan (1908) 7 CLR 277; Coco v The Queen (1994) 179 CLR 427; Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, 143 ER 414, applied. Lane v Symonds [1932] SASR
439; Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR 428; Kasumu v Baba-Egbe [1956] AC 539; Ryles v Martin (1971) 1 BPR 9666; Hogg v Scott [1947] KB 759; R v Dairy Produce Quota Tribunal; ex parte Caswell [1990] 2 AC 738; R v Stratford Upon Avon; ex parte Jackson [1985] 3 All ER 769; R v Secretary of State for Health; ex parte Furneaux [1994] 2 All ER 652; Commonwealth Bank of Australia v Forshaw (1990) 55 SASR 247; T.R.A.M.S. Pty Ltd v Grand Hotel Pty Ltd (1993) 170 LSJS 313, considered.

ADELAIDE, 10-13 February 1997 (hearing), 21 August 1997 (decision)

#DATE 21:8:1997

#ADD 4:9:1997

Plaintiff:

Counsel: Mr B Hayes QC with Mr S Milazzo

Solicitors: Daenke O'donovan

Defendant The State of South Australia:

Counsel: Dr N Manetta

Solicitors: Crown Solicitor (SA)

Defendant PGH Industries Ltd:

Counsel: Ms R Layton QC

Solicitors: Ward & Partners

Order:

DEBELLE J

In this application for judicial review the plaintiff seeks an order in the nature of certiorari to quash a proclamation made by the Governor under the Mining Act 1971 declaring the grant of a private mine in respect of its land. In the alternative, the plaintiff seeks a declaration that the proclamation is void and other ancillary declarations. The grant of the private mine was made to the defendant PGH Limited.

The proclamation declaring the grant of the private mine was made on 29 November 1973. It was made in respect of that portion of Section 5576 in the Hundred of Yatala, County of Adelaide which is described in Certificate of Title Register Book Volume 3872 Folio 123. The plaintiff was in 1973 and still is the registered proprietor of that land.

These proceedings were instituted on 12 February 1996 more than 22 years after the proclamation had been made. The plaintiff also seeks an extension of time in which to bring these proceedings. The question of delay was an important issue. I will return to it.

The Affidavit Evidence

The trial proceeded on affidavit evidence. Four affidavits were admitted on behalf of the plaintiff. The first two were affidavits of Mr Donald Bradey, a director of the plaintiff, sworn on 8 February 1996 and 16 September 1996. The other two affidavits were sworn on 12 September 1996 and 9 December 1996 by Mr Paul Burgess, a solicitor employed by the plaintiff's solicitors Daenke O'Donovan. Mr Bradey was cross-examined on his affidavit. He impressed me as a man who was doing his best to recall accurately all relevant events which included events some 24 years ago. He appeared to me to be truthful and I accept his evidence.

One affidavit was admitted on behalf of the first defendant, the State of South Australia. It was an affidavit sworn by Mr Roger Matthews on 4 June 1996. Mr Matthews is now Chief Inspector of Mines at the South Australian Department of Mines and Energy. In 1973 he was an Inspector employed by the Department. He too was cross-examined on his affidavit. His evidence concerned a report he had prepared in April 1973. He candidly acknowledged that he had no independent recollection of the events and could only recall what was stated in his report. He could add nothing to his report. With one exception, which is not of great moment, I accept what he stated in his report.

Five affidavits were admitted on behalf of the defendant PGH Industries Ltd. They were three affidavits of Mr James Tennant sworn on 22 May 1996, 26 June 1996 and 1 October 1996. Mr Tennant is the Plant Manager of PGH Industries Ltd at Golden Grove. He had been employed by the company since December 1969. The fourth affidavit was sworn by Mr Bent Pederson on 23 December 1996. He is the Quarry Manager employed by the company. The fifth affidavit was sworn by Mr Graham Sinclair on 5 February 1997. Mr Sinclair had been manager of PGH Industries Ltd until 1974 when he had retired. Mr Tennant and Mr Pederson were cross-examined on their affidavits. Both were inclined to overstate the position from the view point of PGH Industries Ltd and I have discounted to some extent their evidence concerning potential prejudice to the company. But there is no material inconsistency between their evidence and that of Mr Bradey.

The parties had commendably agreed a book of documents which was admitted. The book of agreed documents contained almost all of the documents exhibited to the affidavits. The exhibits to the affidavits I have mentioned were not tendered in order to avoid duplication of documents.

The Dealings in the Land

In order to understand the issues, it is first necessary to examine some of the dealings with Section 5576 and certain mining tenements which had been created in respect of that land before the grant of the private mine on 29 November 1973.

From at least 1952, the registered proprietor of Sections 5576 and 5577 in the Hundred of Yatala was Mr R A Hean. On 17 September 1954, Mr Hean died. Thereafter, until 1959, the executors of his estate were the registered proprietors of that land. It seems that a woman called Ethel Esther Hean continued to occupy the land. I infer that she was Mr Hean's widow. For present purposes, it is not necessary to determine whether or not she was his widow.

In 1959 the executors of the estate of the late Mr Hean transferred Sections 5576 and 5577 to Mrs Catherine Berry and Miss Mary Berry. In 1968 the Berrys transferred to the plaintiff part of both Sections 5576 and 5577. The transfers were registered on 19 August 1968. A new Certificate of Title was issued for the land sold to the plaintiff. It was Certificate of Title Register Book Volume 3608 Folio 3. The Berrys sold the balance of Sections 5576 and 5577 to PGH Industries (SA) Pty Ltd in May 1969. PGH Industries (SA) Pty Ltd has changed its name. It is the second defendant. For convenience, I will refer to it as PGH.

In 1972 the plaintiff sold parts of the land it had purchased from the Berrys. A new Certificate of Title was issued for the land retained by the plaintiff. It was Certificate of Title Register Book Volume 3872 Folio 123. Thus, as at November 1973, the plaintiff's land consisted only of part Section 5576.

On 19 October 1977 the plaintiff sold another part of its land. On this occasion the purchaser was F & T Building Products Pty Ltd. In 1977, that company was and still is a related company of PGH. Since then it has changed its name.

Subsequent dealings in the land can be briefly summarised. In 1983 the plaintiff acquired other land and that land was consolidated with the land already owned by the plaintiff into one Certificate of Title. The number of the Certificate of Title of the plaintiff's land has changed from time to time. It is sufficient to note that it is now Certificate of Title Register Book Volume 5255 Folio 546 and that the plaintiff is still the registered proprietor of that land.

It is also necessary to note that the original grant of Section 5576 had been made in 1846. Land grants made before 31 January 1889 had vested minerals on or under the ground in the owner of the land, reserving one-fifteenth of metals and ores containing metals to the Crown. Land grants made after 1 February 1889 reserved ownership of minerals to the Crown: see s9 of the Crown Lands Amendment Act 1888 into operation on 1 February 1889; Government Gazette dated 24 January 1889; and Lane v Symonds [1932] SASR 439 at 443. Thus, when the plaintiff purchased the land in 1968, it acquired the minerals in Section 5576.

The Mining Tenements

When the plaintiff first became registered proprietor of the land in Certificate of Title Register Book Volume 3608 Folio 3, portion of Section 5576 was subject to a coal lease numbered 49. The lessee was Builders Bricks (South Australia) Ltd ("Builders Bricks"). That company had been a subsidiary of PGH since 1959. The coal lease had been issued pursuant to the Mining Act 1930. It contained 72 acres and applied to a portion of the plaintiff's land as well as to land held by PGH. The portion of Section 5576 owned by the plaintiff which was subject to Coal Lease 49 is shown on the plan below. It held all of the land shown on the plan in December 1972 when PGH applied for the private mine and in November 1973 when the proclamation declaring the private mine was made. All of the land was then included in Certificate of Title Register Book Volume 3872 Folio 123. I emphasise that the balance of the land the subject of Coal Lease 49 was owned by PGH. The land retained by the plaintiff in 1977 after it had sold portion of 5576 to F T Building Products Pty Ltd is the square shaped parcel on the plan.

The term of Coal Lease 49 was for a period of 21 years from 1 April 1960. The coal lease entitled Builders Bricks to extract shale from that land. The rent was [sterling]72 per annum and payable yearly in advance. As the land was private land, Builders Bricks was required by the lease to pay a royalty of an amount equal to 2_ per cent of the value of the shale obtained and sold from the land. There were a number of other covenants. It is unnecessary to refer to all of them. I will refer only to those relevant to this action. Builders Bricks was required to pay all rates and taxes in respect of the demised land: Clause 2. Builders Bricks was required to employ and keep constantly employed not less than one able bodied man for every 40 acres or part thereof in mining and prospecting for shale on the land: Clause 5. Builders Bricks was also required to submit a return to the Mining Warden in January and July of each year showing the quantity of shale taken from the land in the preceding six months: Clause 10(b). A breach of a term of the lease rendered the lease liable to forfeiture. The lease was transferable with the consent of the Minister: Clause 15.

Builders Bricks also held other coal leases entitling it to mine shale. They were coal leases 50 and 51. Those leases were on those parts of Sections 5576 and 5577 and other land owned by PGH or companies related to or controlled by it. Coal Leases 49, 50 and 51 adjoined one another. Section 120 of the Mining Act 1930 authorised the amalgamation of coal leases. An application for amalgamation had to be made every two years. From at least September 1962 Builders Bricks had applied every two years to amalgamate Coal Leases 49, 50 and 51 and its application had been granted. The last amalgamation was for a period of two years from 30 September 1970. One significant advantage of amalgamation was that it enabled the covenant in Clause 5 of the lease as to employment of one man for every 40 acres to be satisfied by men working on a lease or leases amalgamated with that lease. Thus, PGH would satisfy the labour requirement for Coal Lease 49 by men working on mining operations on Coal Leases 50 and 51.

On 29 October 1970 the Mining Registrar had reported to the Senior Warden. Among other things, he noted in his report that Builders Bricks had to that date mined only on land which PGH or related companies owned. In other words, Builders Bricks had not mined on the plaintiff's land.

On 3 July 1972, the Mining Act 1971 came into operation. It repealed the Mining Act 1930. For convenience I will refer to the Mining Act 1930 as "the repealed Act" and to the Mining Act 1971 either as "the new Act" or "the new Mining Act". Section 5 of the new Act contained a number of transitional provisions. Section 5(2) provided that a coal lease granted under the repealed Act and in force immediately before the commencement of the new Act shall be deemed to be a mining lease granted under the new Act and shall remain in force for the remainder of the period for which it was granted. Thus, the coal leases granted to Builders Bricks on 1 April 1960 for a term of 21 years continued in force on the commencement of the new Act and could have continued to operate until 1981 as mining leases under the new Act. Regulation 37 of the Mining Regulations 1972 divided mining leases into four classes. One of those classes was an Extractive Minerals Lease. An Extractive Minerals Lease entitled the lessee to carry out mining operations for extractive minerals. Extractive minerals include clay: see s6 of the new Mining Act. There is no evidence as to how the coal leases

held by Builders Bricks were converted to Extractive Minerals Leases. The Coal Lease 49 is endorsed "Deemed to be an extractive minerals lease under the Mining Act, 1971". The endorsement is not dated. It was common ground that the Coal Leases had become Extractive Minerals Leases and no issue flows from that.

In 1972 Builders Bricks went into liquidation. With the consent of the Minister it transferred its Extractive Minerals Leases to PGH. The transfers were registered on 22 November 1972.

On 19 December 1972 PGH applied for the areas the subject of Extractive Minerals Leases 49, 50 and 51 to be declared a private mine pursuant to s19 of the Mining Act 1971. PGH made a separate application in respect of each certificate of title subject to those Extractive Minerals Leases. All but one of those titles was held by PGH or by a company related to or controlled by it. PGH made a separate application in respect of the plaintiff's land. PGH did not limit that application to that part of the plaintiff's land subject to EML 49 but made the application in respect of all of the plaintiff's land in Certificate of Title Register Book Volume 3872 Folio 123. PGH was entitled to make the application in respect of EML's 50 and 51 because it owned the land or controlled the company which owned the land. The question whether PGH was entitled to apply for a private mine in respect of the plaintiff's land is a substantial issue in these proceedings. I will return to examine that issue.

In its application in respect of the land the subject of EML 49, PGH gave the following answer to a request for particulars of mining operations carried on in the area during the last twelve months:

"This area is part of Extractive Minerals Lease No.49 and has not been worked over the past 12 months and is held in reserve for the future. Lease amalgamated with Lease No 50 and 51."

As already mentioned, the application stated that the land the subject of the application was the whole of the land in Certificate of Title Register Book Volume 3872 Folio 123 and that the registered proprietor of the land was the plaintiff. In response to a question on the form as to its eligibility to make the application, PGH stated that it was eligible to apply as it held the land under EML 49. One issue in these proceedings is whether that fact entitled it to apply. The plan which accompanied the application showed the whole of the plaintiff's land including the area of EML 49 which was an area of about one-third that part of Section 5576 held by the plaintiff. As will be seen, PGH had no authority to apply for a private mine in respect of that part of the plaintiff's land not subject to EML 49. The plaintiff says that it did not receive notice of this application. There is no document or other evidence indicating that the plaintiff had notice. I find that the plaintiff did not get notice of the application.

In March 1973, Mr R Matthews was an Inspector of Mines and Quarries employed by the Department of Mines. He is now the Chief Inspector. He was instructed to assess the application by PGH for a private mine. On 28 March 1973 he inspected the plaintiff's land. He subsequently prepared a report dated 5 April 1973. There is no other documentary record of that inspection. Not surprisingly, Mr Matthews now has no recollection of this inspection made some 24 years ago. His evidence is that he was then a poor note taker and he does not now believe that he took any notes. He believes that he prepared his report from memory after returning from the inspection. There is no evidence to show how long it was after he returned that he prepared his report. His report reads:

"I visited this area on 28th March, 1973. There were no P.G.H. personnel on site and no mining operations were in progress. In fact there were no signs of any mining activity on this property. The property owner Mr. Bradey stated that to his knowledge no mining operations had ever been conducted on Part Section 5576. Bradey said that he did receive about $40 annual rental from P.G.H. for that part of Extractive Minerals Lease 49 (22 acres) which overlaps onto his property.

A search of records reveals that there is no evidence of any production from this lease since March, 1960 when it was converted from a claim.

E.M.L. 49 was previously Coal Lease 49 but was deemed a E.M.L. by the new Mining Act. This lease was amalgamated with E.M.L. 50 and 51 until 30th September, 1972. There is no record of this amalgamation being renewed nor is there any record of a suspension of labour being granted for any of these leases.

This application infers that P.G.H. require all of Bradey's property including part of E.M.L. 49 declared a private mine. This is not possible unless P.G.H. surrender that part of E.M.L. 49 as Pt. Section 5576 is declared. The other alternative is that the application be altered to cover that part of Pt. Section 5576 not covered by E.M.L. 49.

I recommend that this application be refused in its present form for the following reasons: (1) There is no evidence of mining operations as required by section 19(1)(b) of the Mining Act. (2) There is no evidence of mining operations having been conducted during the past 12 months as required by section 19(2). (3) Mining operations as required by section 19(3)(a) appear to be not insignificant but non existing. (4) Part of the area applied for is held under E.M.L. 49 and hence contravenes section 19(3)(b).

I recommend that P.G.H. Industries be advised that their application be altered to allow E.M.L. 49 and they supply evidence to support their application in regard to sections 19(1)(b), 19(2) and 19(3)(a) of the MiningAct."

The comment in paragraph (3) of the recommendation is a little curious. In his evidence, Mr Matthews explained that he intended to say that "mining operations as required by s19(3)(a) appear to be not only insignificant but also non-existing". Of particular note are the following facts mentioned by Mr Matthews in his report:

* There were no PGH personnel on the plaintiff's land.

* No mining operations were in progress on the plaintiff's land.
* There were no signs of any mining operations on the plaintiff's land.

It will be noticed that the report does not state that Mr Matthews informed Mr Bradey of the application for a private mine. I find that he did not. Mr Bradey's statement to Mr Matthews that to his knowledge no mining operations had been conducted on the plaintiff's land was correct.

PGH was subsequently advised of the recommendation in the last paragraph of Mr Matthews' report. The effect of that recommendation was that PGH should surrender Extractive Minerals Lease 49 and apply for a private mine to be declared in respect of the whole of the land, that is to say, not only its land but the land owned by the plaintiff. PGH acted upon the recommendation. On 25 July 1973 it wrote to the Director of Mines enclosing the proposed form of surrender. It also surrendered Coal Leases 50 and 51. Both that letter and the terms of each of the surrenders as executed by PGH stated that the surrender would take effect upon the proclamation of the grant of a private mine over each of the areas the subject of the respective Extractive Minerals Leases. The letter of 25 July 1973 was in these terms:

"I am enclosing Forms of Surrender covering Coal Leases Nos. 49, 50 and 51 on properties at Golden Grove. These surrenders are to take effect from the date of proclamation of private mines being granted over these areas.

With regard to the surrender of Lease No. 49. I submit the following information:- (1) On 21/4/58 the lessee in accordance with the Mining Act 1930-51 was granted to Ethel E. Hean a portion of land in Section 5576/7 over which Lease No. 49 extends. Copy of authorisation is attached. (2) The area was drilled for the lessee by the Mines Department, which was covered by Report No. GS. 178 File DM. 1087/51. The report was submitted by Geologist, Mr. A. A. Gibson.

Since the acquisition of the three coal leases, our Company has purchased a property comprising that contained in Lease Nos. 50 and 51 and portion of that contained in Lease No. 49. In accordance with Section 120 of the Mining Act 1930-1945 these leases have been amalgamated, which has been renewed from time to time. It is our Company's desire that we retain our rights under the Mining Act of the total area comprised in Lease No. 49.

Forms of Surrender are enclosed."

The authorisation from Ethel Hean referred to in paragraph (1) of the letter was in these terms:

"I, ETHEL ESTHER HEAN being the occupier of land being Section 5576-7 in the Hundred of Yatala in the State of South Australia, hereby authorise Builders Bricks (South Australia) Limited to enter upon the said land for the purpose under the Mining Act, 1930-1951."

The document is dated 21 April 1958. It appears that PGH relied on the document signed by Ethel Hean as evidence of a grant of some interest in the land. The document does no more than grant a right of entry. The document does not specify the term for which the authority to enter is given. Since April 1958 the land had been transferred twice to new owners, that is to say, from Mr Hean to the Berrys and from the Berrys to the plaintiff. There is nothing in the repealed Act which provides that an authority to enter binds subsequent registered proprietors.

On 17 August 1973, Mr Glen Rispin, an employee of PGH, sent a memorandum to Mr Sinclair, the then Manager of PGH. It read:

"Mr Lomeyer of Department of Mines requires more information on Lease No 49 Section 5576 Hundred of Yatala. He feels that the Crown Solicitor will not grant a private mine on information so far available."

An unidentified person has endorsed that memorandum with a handwritten note reading "Agreement between ourselves and Bradey". No witness was able to identify who had written that note nor could any witness comment on the effect of the note. No agreement between PGH and the plaintiff was produced. None of the parties has relied on the note and I have no regard to it.

Mr Richards made another report dated 1 September 1973 concerning EML 49. Under the heading of "Approximate Yearly Production" he wrote:

"This area was amalgamated with M L 50 + 51 and it will be worked in conjunction with those areas which produce 100,000 tons."

Under the heading "Other Comments" he said:

"As this area was amalgamated with M L 50 + 51 and in the future will be worked in conjunction with the private mines granted over those areas, I see no reason why a private mine should not be granted over this area providing the lease is surrendered."

On 21 September 1973 PGH executed a document surrendering EML's 49, 50 and 51. They were sent to the Mining Register on 10 October 1973 and were subsequently registered.

The docket kept by the Department of Mines contains an unsigned minute of the Director of Mines dated 15 October 1973. It reads:

"PGH Industries Ltd have made application for the declaration of private mines over the area which is at present subject to mining tenements - Extractive Minerals Leases 49, 50 and 51. The company wishes to surrender these leases simultaneously with the declaration of the private mines. No objection is made to this proposal."

The meaning of the last sentence is equivocal. It could mean either that the Department of Mines or the plaintiff had no objection to the proposal. If it meant that the Department had no objection, it is correct. If it means that the registered proprietor of the plaintiff's land had no objection, it is incorrect. As I find later, the plaintiff had no knowledge of the application.

On 23 October 1973, the Director of Mines prepared a minute to the Minister recommending the declaration of a private mine in respect of the whole of the plaintiff's land, that is to say, the land the subject of the EML 49 and the balance of the plaintiff's land. The minute is in the following terms:

"The attached summarises an application for the declaration of a private mine situated near Golden Grove.

The land tenure has been checked and there is no objection to the granting of the application.

The attention of the applicant will be drawn to: 1. his responsibilities under the Mines and Works Inspection Act 2. the necessity to obtain the prior approval of the Chief Inspector before commencing operations 3. the need to check for any approval which may be required under other legislation before operations commence.

It is therefore recommended that under Part III, Section 19 of the MiningAct, 1971, the above area be declared as a private mine."

The recommendation was accepted and approved by Cabinet on 29 October 1973. On 29 November 1973 it was approved by the Governor in Council and a private mine was declared in respect of the whole of the land then owned by the plaintiff. The relevant part of the declaration as published in the Government Gazette of 29 November 1973 reads:

"That portion of section 5576, Hundred of Yatala, County of Adelaide, described in Certificate of Title Register Book Volume 3872 Folio 123."

As already mentioned, a substantial issue in these proceedings is whether PGH was entitled by the new Mining Act to apply for a private mine in respect of EML 49. I will refer later to the terms of the Act in due course but it is clear that, on any reading of the Act, PGH had no entitlement to apply for a private mine for that part of the plaintiff's land which was not subject to the mining lease.

On 4 February 1974 the Mining Register wrote a letter to PGH advising of the proclamation of the private mine. The letter drew attention to the need to obtain certain other approvals before mining operations were carried out. At the foot of the letter there is a hand written note. It reads:

"Please have Glen Rispin check that this private mine is over private property."

It is apparent that the author of that note was then employed by PGH. No one was able to explain the note and no party relies on it. As it is not clear whether any person acted on the note, I have no regard to it.

The Issues Under Section 19

I turn to examine the issues which arise under s19 of the new Mining Act which came into operation on 3 July 1972. The new Mining Act effected a number of important changes in mining law. The parties agreed that I could refer to the second reading speech introducing the Bill to repeal the Mining Act 1930. The speech summarised features of the operation of the repealed Act and of the new Mining Act. Most, if not all, of those matters can be gleaned from the respective Acts. I do not think that any additional light is shed on these issues by the second reading speech.

The Mining Act 1971 effected a substantial change in respect of ownership of minerals. Section 16 of the Act vested in the Crown the property in all minerals in the State, including clay and shale. This represented an expropriation of minerals from those persons who, by reason of the original land grant under which they held the land were entitled to the minerals on their land. Further effect was given to that expropriation by the enactment in s17 of an obligation to pay a royalty on all minerals recovered from mineral land. Upon payment of the royalty, property in the minerals passed to the person by whom the minerals were lawfully mined: s18.

However, s19 of the new Mining Act provided a kind of a quid pro quo enabling those who had been conducting mining operations to apply for the grant of a private mine. The repealed Act had expressly provided that nothing barred a person from carrying out mining operations on his own land. Given the expropriation of minerals from those had had property in minerals, it is apparent that one of the purposes of s19 was to provide for a transitional mechanism by which those persons could continue to recover minerals from their land. Section 19 preserved pre-existing rights or recreated them in a somewhat altered form: see Bray CJ in Emerald Quarries Pty Ltd v Commissioner of Highways (1976) 14 SASR 486 at 488. Section 19(1) enabled an application for a private mine to be made where three conditions had been satisfied, namely,

(a) a person had been divested of his property in any minerals under the new Mining Act; (b) mining operations had been commenced before or after the commencement of the new Mining Act for the recovery of any of those minerals or for purposes of ascertaining whether any of them may be profitably exploited; and (c) the application was made within 3 years after the commencement of the Act.

If an application accorded with the terms of s19(1), it was mandatory to make a proclamation declaring the subject land to be a private mine: Emerald Quarries at 492. The application could be made either by the person divested of his property in the minerals or by a person who immediately before the commencement of the new Mining Act held any interest in those minerals: s19(16). Three important issues in this action are:

(1) Was PGH entitled to apply for a private mine in respect of the plaintiff's land? (2) Had mining operations been conducted on the plaintiff's land? (3) Could PGH obtain a grant of a private mine over the whole of the plaintiff's land?

When determining those issues, it is necessary to consider the following subsections of s19.

19 (1) Where - (a) a person is divested of his property in any minerals under this Act; (b) mining operations have been commenced before or after the commencement of this Act for the recovery of any of those minerals or for the purpose of ascertaining whether any of them may be profitably exploited; and (c) an application is made in writing to the Minister within three years after the commencement of this Act for a declaration under this section, and the application is supported by such plans and information as the Minister may require, an area determined in accordance with this section shall subject to this section be declared by proclamation to be private mine and where such a declaration is made the mine shall, subject to this section, be exempt from the provisions of this Act. (2) The Minister may reject an application under subsection (1) of this section where no mining operations have been conducted on the land subject to the application within a period in excess of twelve months before the date of the application, but otherwise no application shall be rejected on the ground of the discontinuance of mining operations. (3) The Minister may reject an application under subsection (1) of this section - (a) where, in his opinion, the mining operations in the area to which the application relates have been insignificant, or have not been genuinely conducted for the recovery of minerals, or for the purpose of ascertaining whether a deposit of minerals that may be profitably exploited exists; or (b) where the area, or any portion of the area, to which the application relates was at the commencement of this Act, and at the date of the application, subject to a mining tenement. (4) The area to be declared a private mine under this section shall be the whole of the area, comprised in the application, in which the prospective proprietor of the mine held property in minerals immediately before the commencement of this Act, and which is reasonably required for exploitation of minerals. (9) Royalty is, subject to and in accordance with the provisions of this Act, payable under extractive minerals recovered from a private mine but is not payable upon any other minerals so recovered. (10) The proprietor of a private mine who is liable to pay royalty upon extractive minerals may apply to the Land and Valuation Court for an order that any other person, named in the application, should indemnify him wholly or partly for the payment of that royalty. (11) The Court may, upon an application under subsection (10) of this section make such order for indemnity as it considers just and equitable having regard to the relative proportions in which the proprietor and the other person or persons, named in the application, derived profit from the operation of the mine. (12) While a mine continues as a private mine under this Act, the property in any minerals recovered from the mine shall - (a) in the case of all minerals except extractive minerals pass to the proprietor of the mine upon recovery of the minerals; or (b) in the case of extractive minerals pass to the proprietor of the mine upon, and in consideration of, payment of royalty, and any contract, agreement, assignment, mortgage, charge or other instrument in operation immediately before the commencement of this Act and relating to proprietary rights in the minerals shall, subject to its terms, apply to the minerals so recovered upon the passing of property in those minerals in accordance with this subsection. (15) Land comprised within a private mine shall not be subject to any mining tenement under this Act. (16) An application for the declaration of a private mine may be made under subsection (1) of this section by the person divested of his property in the minerals in respect of which the declaration is sought, or a person who, immediately before the commencement of this Act, held any interest in those minerals pursuance of any contract, agreement, assignment, mortgage, charge or other instrument.

The Essential Facts

Before examining the three issues I have identified, it is convenient to summarise the facts as I find them to be in November 1973 just prior to the grant of the private mine.

1. The original grant of Section 5576 had vested all minerals in the owner of that land. 2. Upon registration of the transfer to it on 19 August 1968 the plaintiff had, as a successor in title to the original grantee, acquired the right to all minerals on Section 5576. 3. On 3 July 1972 when the new MiningAct commenced operation, the plaintiff was divested of its right to the minerals on its land. 4. On 3 July 1972, the Coal Leases 49, 50 and 51 held by Builders Bricks became mining leases under the Mining Act 1971 and were classified as Extractive Minerals Leases and they remained in force. 5. EMLs 50 and 51 applied to land owned either by PGH or by companies controlled by it or related to it. 6. EML 49 applied to land owned by the plaintiff as well as to land owned by either PGH or by companies controlled by or related to it. 7. On 27 November 1972 Builders Bricks, which was a subsidiary of PGH and was then in liquidation, transferred EMLs 49, 50 and 51 to PGH. 8. On 19 December 1972 PGH applied for the grant of a private mine in respect of the areas subject to the EML's 49, 50 and 51. PGH made several applications. One of those applications related to the whole of the plaintiff's land. 9. On 21 September 1973 PGH executed a surrender of EML's 49, 50 and 51 conditional upon the grant of a private mine. The surrender was registered on 16 October 1973. 10. On 15 November 1973 the Governor made a proclamation declaring private mine No 204 which applied to land owned either by PGH or by companies controlled by or related to it. 11. On 29 November 1973 the Governor made a proclamation declaring private mine No 215 which applied only to the plaintiff's land. However, it purported to apply to the whole of that land. 12. The plaintiff did not receive notice of the application for the grant of the private mine in respect of its land. 13. No mining operations had been conducted on the plaintiff's land by either the plaintiff or PGH for the purpose of recovering clay or other minerals. As will be seen, there is an issue whether mining operations had been conducted on the plaintiff's land for the purpose of ascertaining whether minerals could be profitably exploited.

Was PGH Entitled to Apply?

For the reasons which follow, there are several reasons why PGH was not entitled to apply for a private mine on part or all of the plaintiff's land. They are

1. PGH was not divested of its property in minerals on the plaintiff's land and so s19(1)(a) was not satisfied.

2. PGH was not a person entitled to apply pursuant to s19(1)(16).

3. Mining operations had not been conducted to satisfy s19(1)(b).

4. On any view of the matter, PGH was disqualified by s19(4) from obtaining the grant of a private mine in respect of land not subject to EML49.

I turn to deal with each of those issues.

PGH did not have property in the minerals on the plaintiff's land and so could not be divested of that property. Instead, PGH had an interest in those minerals pursuant to EML 49. The only person who had property in the minerals on the plaintiff's land was the plaintiff.

Further, PGH was not divested of the interest it held in minerals on the plaintiff's land. When the new Mining Act came into operation, Builders Bricks held Coal Lease 49. Section 5(2) of the new Mining Act preserved the operation of Coal Lease 49. Section 5(2) provided:

"(2) A gold lease, mineral lease, coal lease, or miscellaneous lease granted under the repealed Act and in force immediately before the commencement of this Act shall be deemed to be a mining lease granted under this Act and shall, subject to this act, remain in force for the remainder of the period for which it was granted or last renewed."

Thus, Coal Lease 49 was deemed to be a mining lease and was to remain in force for the remainder of the period of the lease. Builders Bricks, therefore, retained the interest it held in the minerals under the lease. It transferred that interest to PGH in November 1972. In addition, on the transfer to it of EML 49, PGH was by virtue of s38(2) of the Act entitled to apply for renewal of the lease and, if it made that application before expiry of the lease, it was mandatory for the Minister to renew the lease: s38(3). In other words, PGH did not require the benefit of s19 in order to be able to continue to mine the plaintiff's land. EML 49 would not expire until 1981. If it applied for renewals of the lease within the time specified in s38(3), PGH could have continued to mine the land for a long time into the future. Thus, notwithstanding the repeal of the Mining Act 1930, the mining lease continued in force giving PGH the right to extract minerals from the plaintiff's land upon payment of a royalty to the Crown. PGH derived its interest in the minerals under the mining lease and thus its interest in minerals on the plaintiff's land remained unaffected by the commencement of the new Mining Act. Thus, PGH was not divested of property in minerals and was not divested of the interest it held in the minerals on the plaintiff's land pursuant to the mining lease. For these reasons, PGH could not satisfy the pre-requisite in s19(1)(a).

Ms Layton QC, who appeared for PGH, submitted that it was entitled to apply for the grant of a declaration of a private mine pursuant to s19(16). It provides:

"An application for the declaration of a private mine may be made under subsection (1) of this section by the person divested of his property in the minerals in respect of which the declaration is sought, or a person, immediately before the commencement of this Act, held any interest in those minerals in pursuance of any contract, agreement, assignment, mortgage, charge or other instrument."

As the only person who held property in the minerals on the plaintiff's land in 1972 was the plaintiff, the question whether PGH was entitled to apply turned on whether it satisfied the second limb of s19(16), that is to say, whether it held "any interest in those minerals in pursuant of any contract, agreement, assignment, mortgage, charge or other instrument." PGH claims that it is entitled to apply asserting that it held an interest in the minerals under EML 49.

Ms Layton relied on the decision of the Full Court in Emerald Quarries. One of the questions in that case was whether a lessee, who pursuant to the terms of its lease had the right to quarry part of the demised land, was entitled to apply for a private mine. The court held that the lessee held an interest in the minerals pursuant to the lease and so was entitled to apply: see Bray CJ at 491-494. But that decision does not resolve the issue whether PGH is entitled to apply for a private mine. The person who had granted the lease in that case was the owner of the land. The lessee therefore claimed its interest in the minerals on the land through the owner. The position of PGH is quite different. Unlike the lessee in Emerald Quarries, the entitlement of PGH to minerals was granted by the mining lease it held from the Crown under the new Mining Act. The question remains whether s19(16) applies to a lessee who does not have an interest in the minerals by reason of a contract or other agreement with the owner but whose interests stem only from a lease issued under the new Mining Act.

The question is not capable of simple resolution. As Bray CJ noted in Emerald Quarries at 491, s19 is an "elaborate and difficult question". For the reasons which follow, I conclude that PGH was not entitled to apply for the grant of a private mine in respect of the plaintiff's land. The reasons are to be found in the overall purpose of s19 and in its terms.

Before proceeding further, I re-iterate that the purpose of s19 was to enable those who had been divested of their interests in minerals by the operation of the new Mining Act to apply for the grant of a private mine and thus be able to extract minerals from their land without payment of a royalty. Section 19(16) recognised that some owners of land might have disposed of their interest in the minerals on that land and so provided that the persons with contractual rights in those minerals should also be able to apply for the grant of a private mine. That purpose is also emphasised by s19(1)(a).

The purpose of s19 is reflected in its terms. First, the words "contract, agreement, assignment, mortgage charge or other instrument" in s19(16) are inappropriate to refer to a mining lease granted under the new Mining Act. The ordinary meaning of those words signifies an agreement of some kind between the owner and a third party. They are not words which ordinarily signify the grant of a statutory entitlement or an interest in minerals pursuant to a statutory right. Had it been intended that an interest under the Mining Act would have entitled a person to apply for a private mine, it would have been so easy to have so provided in express terms in s19(16). Support for this conclusion is to be found in the definition of the expression "the proprietor of a private mine" which is used in subsections (4), (10), (11) and (12) of s19. The word "proprietor" is defined by s6 of the Act in these terms:

"'Proprietor' in relation to a private mine means the person divested of his property of the minerals for the recovery of which the mine is operated or a person lawfully claiming under him."

It will be immediately noticed that the proprietor is either the person divested of his property in the minerals, that is to say, the registered proprietor of the land, or a person claiming through or under him. The proprietor is not a person who claims an interest in minerals under a mining lease. Subsection (4) in particular demonstrates why PGH could not apply. It makes it quite clear that the intention is that the proprietor of the private mine should be a person who held property in minerals on 3 July 1972. PGH could not satisfy that requirement. Section19(12) regulates the interests in minerals recovered from a private mine. It is in these terms:

"While a mine continues as a private mine under this Act, the property in any minerals recovered from the mine shall - (a) in the case of all minerals except extractive minerals pass to the proprietor of the mine upon recovery of the minerals; or (b) in the case of extractive minerals pass to the proprietor of the mine upon, and in consideration of, payment of royalty, and any contract, agreement, assignment, mortgage, charge or other instrument in operation immediately before the commencement of this Act and relating to proprietary rights in the minerals shall, subject to its terms, apply to the minerals so recovered upon the passing of property in those minerals in accordance with this subsection."

The latter part of s19(12) uses the same formula as is used in s19(16), namely, "any contract agreement, assignment, mortgage, charge or other instrument". I repeat, none of those terms is suitable to include a statutory right to an interest in minerals. The operation of s19(12) was examined by Bray CJ in Emerald Quarries at 493-494. As His Honour's reasons show, s19(12) is intended to preserve the operation of any contractual provision between the owner of the land and another party relating to the minerals. It therefore has no application to a mining lease. Further, a provision such as s19(12) is wholly unnecessary if the holder of a mining lease mines the land pursuant to that lease because the mining lessee's interest in the minerals and the payment of royalties are regulated by the terms of the lease, which continued when the new Mining Act came into force. Other provisions in s19 are consistent with the conclusion that the holder of a mining lease from the Crown cannot apply for a private mine on another's land. I refer in particular to subsections (13), (14) and (17).

The terms of subsections (3)(b) and (15) of s19 also confirm this conclusion. As already mentioned, different kinds of leases under the repealed Act were continued in force as mining leases under the new Mining Act: see s5(2). Section 19(15) provides that land comprised within a private mine shall not be subject to a mining tenement under the new Act. A mining tenement includes a mining lease: see s6. Thus, in the absence of a saving provision, the grant of a private mine would not only render the grantee immune from any fresh application for a mining tenement under the new Act but also would extinguish an existing mining lease. The saving provision is provided by s19(3)(b) which vests a discretion in the Minister to reject an application for a private mine where the area the subject of the application is subject to a mining tenement. Those provisions reflect the fact that the holder of a mining lease continues to enjoy the interest in minerals it held under its mining lease notwithstanding the new Act and that s19 is intended only to assist those who are divested of their property in minerals. Thus, the holder of a mining lease does not fall within the description of a person holding "any interest in those minerals in pursuance of any contract, agreement, assignment, mortgage, charge or other instrument".

Next, there are sound policy reasons to exclude a mining lease from the instruments listed in s19(16). The purpose of s19 was to preserve for a transitional period the rights of those person who had property in minerals on their land and those deriving an interest in those minerals from those owners. It was not intended to disadvantage the interests of those persons. Section 9 of the new Mining Act provides a form of safeguard to owners of land protecting them from invasive mining operations on their lands. It exempts land used for certain purposes from mining operations. For example, land which is situated within 400 metres of a dwelling is exempt from mining operation: see s9(1)(d). That protection would not be available if the mining operations were to be conducted by the holder of the grant of a private mine because s19(1) of the new Act exempts a private mine from the provisions of the Act. The reasons why a private mine is exempt from s9 are apparent if the proprietor of a private mine is limited to the owner or a person claiming through him. An owner of land is able to determine the extent of mining on his own land and so may decide whether he wishes to mine within 400 metres of a dwelling on his own land. He may also permit another person to enjoy the same right. If a person claiming through the owner holds the grant of a private mine, his mining operations will be constrained by the terms of the contract or other instrument through which he has title to the minerals. In short, the owner of the land is able to determine the extent of mining operations which will be conducted on his land by him or by a person claiming through him. He does not, therefore, require the protection of s9. By contrast, a person who holds a mining lease is not under any contractual obligation to the owner of the land. He is bound only by the terms of the mining lease. If the lessee under a mining lease was granted a private mine, he could conduct mining operations without being bound in any respect by the terms of s9 and could, for example, mine within 400 metres of a dwelling on the land. It would be very odd indeed if the protections provided by s9 could be avoided by a person whose interest in the minerals derives, not from the owner of the land, but from a mining lease held from the Crown. If that were so, the owner of the land would be in a worse position under the new Mining Act than under the repealed Act. The fact that an exemption may cease if the terms of s9(2) and
(3) are satisfied does not alter the force of this conclusion.

For all of these reasons, a person who held a mining lease was not entitled to apply for a private mine. PGH was not, therefore, entitled to apply in respect of the plaintiff's land.

Had Mining Operations Commenced?

Even if the reasons just expressed are wrong, there is yet another reason why PGH did not qualify for the grant of a private mine. That reason lies in the fact that the prerequisite in s19(1)(b) as to mining operations was not satisfied. Section 19(1)(b) required that mining operations had been commenced before or after the commencement of the Act for the recovery of minerals or for the purpose of ascertaining whether any mineral may be profitably exploited. PGH therefore had to satisfy this requirement. It was common ground that, although it had been recovering clay from its own land, PGH had not, itself, carried out any mining operations on the plaintiff's land to recover clay or any other mineral. The only mining operations which were relied upon by PGH for the purpose of satisfying s19(1)(b) was some boring conducted by the Department of Mines in 1954.

The terms "mining" and "mining operations" are defined by s6 to mean:

"all operations carried on in the course of prospecting or mining for minerals or quarrying and includes operations by means of which minerals are recovered from the sea or a natural water supply."

The expression "mining operations", therefore, has an extensive meaning and covers a wide variety of mining activity. However, s19(1)(b) does not simply refer to mining operations. Instead, it specifies mining operations of two particular kinds, either mining operations for the recovery of minerals or mining operations for the purpose of ascertaining whether minerals may be profitably exploited from the land the subject of the application. Although prospecting is defined to be part of mining operations, the terms of the second limb of s19(1)(b) require that there has been more than mere prospecting. Prospecting is the process of exploring an area or region for minerals and, if minerals are located, may denote the process of identifying the extent of the mineral deposits: see Macquarie Dictionary. Section 19(1)(b) requires that the mining operations should be directed to ascertaining whether the minerals the subject of the application for a private mine may be profitably extracted. There is, however, one other condition which must be satisfied before s19(1)(b) may operate. Although it is not expressly stated in s19, it is a necessary implication from the terms of s19(3), if not from other provisions in s19, that at least some of the mining operations have been conducted on the land the subject of the application. Thus, s19(1)(b) requires that the mining operations involve not only the ascertainment of the extent of the mineral deposits but also an assessment whether the mineral deposits on the land the subject of the application can be profitably exploited. If the mining operations had been discontinued or were not significant, the Minister had a discretion to reject the application: s19(2) and (3). But no issue arises on those provisions.

PGH relies on the digging of three bore holes in Section 5576. Those bore holes were designated GG6, GG7, and GG16. The bore holes were dug in 1954 as part of a general survey of about 240 acres in the area of Golden Grove. Fifteen bore holes were dug to varying depths. The survey was conducted by the Department of Mines on behalf of the South Australian Builders and Contractors Association for the purpose of ascertaining if reserves of brick clay existed which were sufficient to warrant the establishment of a modern brick manufacturing plant. The intent of the survey was to locate and identify the extent of reserves. This information was to be added to information gleaned from a survey in 1951 which had established the suitability and abundance of clay for brick making purposes on adjoining sections. It will be noticed that the survey did not purport to examine whether reserves on any particular parcel of land or section could be profitably exploited. Instead, the survey represented an overall view of the Golden Grove area. The Department conducted this survey pursuant to s20(a) of the repealed Mining Act which authorised it to make geological surveys.

The land which was surveyed comprised land in four Sections. They were Sections 5461, 5576, 5577 and 5662 in the Hundred of Yatala. The land in those Sections was held by a number of different owners. The companies which were either predecessors of, or related to, PGH were the registered proprietors of Sections 5461 and 5662. The registered proprietor of Sections 5576 and 5577 in 1954 was Mr R A Hean who died on 17 September 1954, after the survey had been completed. For the next five years thereafter, the executors of the estate of the late Mr Hean were the registered proprietors of that land. As already mentioned there are a number of dealings in the land in Sections 5576 and 5577. Although the plaintiff had acquired part of Sections 5576 and 5577 in 1968, it had disposed of several parcels of that land in 1972 so that it retained part only of Section 5576. By the time PGH lodged its application for a private mine in 1972 it held part of Sections 5576 and 5577 and the plaintiff held the balance of Section 5576. The only bore hole which had been dug on the land owned by the plaintiff in 1972 was GG16.

Thus, the survey conducted by the Department of Mines was for the purpose of establishing the reserves in the general area of Golden Grove. It would be to attribute too much altogether to the Department's survey to classify it as mining operations for the purpose of ascertaining whether minerals on the subject land could be profitably exploited. The Department did not purport to determine whether the reserves could be profitably exploited. That was a task for others if they chose to do it. That conclusion is reinforced by the fact that it was not until 1958 that Builders Bricks obtained the authority to enter Section 5576 from Ethel Hean. It would seem that not until then did PGH through its subsidiary Builders Bricks decided to act on the information supplied by the Department. But it did no more than obtain a coal lease. It did not conduct mining operations.

Even if the mining operations do not have to be conducted on the land the subject of the application, the single bore hole on the plaintiff's land does not constitute mining operations for the purpose of ascertaining whether clay could be profitably exploited on the land. It would require more than one bore hole to determine the extent of reserves of clay on its land.

To What Land Could the Grant Apply?

Section 19(4) limits the area which might be declared to be a private mine to the whole of the area the subject of the application in which the proprietor held property in minerals immediately before the commencement of the Act. PGH did not then hold any property in any minerals on the plaintiff's land. But even if it did, the property held in minerals could only be in the minerals the subject of EML 49. Thus, even if the plaintiff fails on all other arguments, the proclamation declaring the grant of the private mine wrongly included that part of the plaintiff's land not subject to EML 49. That land is the predominant portion of the plaintiff's land affected by the proclamation.

A Failure to Satisfy Section 19

For all of these reasons, the pre-requisites in s19 for the exercise by the Governor of the power to make the proclamation did not exist. This court has jurisdiction to set aside or vary the declaration of the private mine. When making this declaration, the Governor was exercising a statutory power on the advice of his Ministers. There is no provision in the Mining Act 1971 which excludes judicial review. The court, therefore, has jurisdiction to determine whether the exercise by the Governor or by the Minister or Ministers advising him of the power to make the declaration was made within power: R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170. The plaintiff would, therefore, have been entitled to an order that the proclamation was ultra vires and orders setting aside the proclamation, if it had instituted proceedings promptly after the proclamation had been made. Does the fact that these proceedings were instituted 22 years later deny the plaintiff the relief it seeks? It is first necessary to examine whether the plaintiff knew of the proclamation.

It is unnecessary to enter into the debate whether the decision is void or voidable, an exercise which Professor Wade described in a note in (1974) 90 LQR 154 as a "popular word game". As the editors of Smith's Judicial Review of Administrative Action (5th edition) graphically note:

"Behind the simple dichotomy of void and voidable acts (invalid and valid until declared to be invalid) lurk terminological and conceptual problems of excruciating complexity" (para 5-044).

There are enough issues in this action without venturing into this exercise. I am understandably anxious to avoid being enmeshed in the problems whether the decision was void or voidable. The Governor did not have power to grant a private mine to PGH. Although the proclamation was ultra vires, it nevertheless, would remain in force or effect until it was challenged by a person with standing to do so: see Lord Radcliffe in Smith v East Elloe Rural District Council [1956] AC 736, 769-770 and Lord Diplock in Hoffmann-La Roche & Co A. G. v Secretary of State for Trade and Industry [1975] AC 295 at 366-367. As the plaintiff is obviously affected by the proclamation declaring the grant of a private mine in respect of its land, the plaintiff plainly is entitled to bring these proceedings. Thus, the only thing standing between the plaintiff and an order quashing the proclamation or declaring it to be invalid is the question of delay.

The Plaintiff's Lack Of Knowledge

For the reasons which follow, I find that the plaintiff did not know of either the application for a private mine or the grant of that application until about 24 April 1995.

The plaintiff is a family company. It has two directors, Donald Charles Bradey and his wife. Mr Bradey swore two affidavits in support of the plaintiff's case. He was cross-examined. Mrs Bradey did not give evidence. That is not cause for an adverse inference. There was no reason for her to give evidence. I make the following findings:

(1) In November 1994 the plaintiff had decided to sell its land. (2) Ultimately a purchaser executed a conditional contract dated 24 April 1995. The intended purchaser was Mr Emilio Bernardi. (3) Mr Bernardi was associated with a firm called Salisbury Brick Company Pty Ltd. In the course of the negotiations, he told Mr Bradey that he wished to purchase the land to extract clay for the purpose of brick making. It was then that Mr Bradey first learned of the existence of the private mine. In this respect it is to be noted that the statement required by s90 of the Land Agents Brokers and Valuers Act 1973 then in force did not refer to the existence of the private mine. In fact the statement said that there was no record of any proclamation of a private mine affecting the land. For the reasons which follow, I find that neither the plaintiff nor Bradey was aware of the existence of the private mine until so informed by Mr Bernardi. Thereafter, Mr Bradey made extensive inquiries at the Department of Mines and ascertained that the whole of the plaintiff's land had been declared to be a private mine. I will refer later to the inquiries made by Mr Bradey and by the plaintiff's solicitors on its behalf.

In the course of cross-examination, Ms Layton QC pressed Mr Bradey as to his knowledge of mining tenements on the plaintiff's land. I find:

(4) Mr Bradey knew in 1968 and thereafter that mining in the form of extraction from open pits was occurring in the vicinity of the plaintiff's land. Before purchasing the land, Bradey had seen extractive mining in the vicinity of the plaintiff's land. He believed that it was sufficiently far distant not to be of any concern. In 1971 and 1972 some of that mining was on the land owned by PGH which bordered the plaintiff's land. (5) No mining operations had been conducted on the plaintiff's land for the purpose of recovering clay or other minerals. (6) In about 1969 and 1970, Bradey had found a peg lying on ground near a boundary fence of the plaintiff's land. The peg bore marks indicating that it had come from the Department of Mines. (7) Once in each of the years 1969, 1970, 1971 and 1972 the plaintiff had received a payment of $41.80 which was rent for the portion of Coal Lease 49 on the plaintiff's land. (8) Mr Bradey was aware those payments were made by the Department of Mines. After receiving a payment of rent and after finding the peg on the boundary fence in about 1969 or 1970, Bradey made inquiries at the Department seeking to ascertain the reason for payments. He was informed that the payment of rent was related to an old lease or claim and not a matter of concern. He therefore put the matter to one side. He was encouraged to do so as the payment was for a small amount of money. (9) Nothing said in response to his inquiries caused Bradey to have any concerns as to any adverse mining tenement. (10) Ms Layton QC suggested to Mr Bradey that the plaintiff had received a further payment of rent of $41.80 in 1973. However, there is no record indicating that such a payment was made. Documents in the files kept by the Department of Mines also point to the conclusion that a payment was not made in 1973. It appears that the practice of the Department was to send an account to Builders Bricks for rent. On being paid by Builders Brick, the Department then sought Ministerial approval and, after obtaining that approval, arranged for the cheque to be paid. This was the procedure followed in each of the years 1969, 1970, 1971 and 1972 when payments of rent were made to the plaintiff. However, there is no record of Ministerial approval for payment of rent in 1973. Moreover, at about the time the liability for rent had accrued, PGH had already applied for the grant of a private mine. Rent was payable in advance: see Regulation 55 of the Mining Regulations, 1972. It is unlikely that PGH would have paid the rent knowing that it was about to surrender the lease. Given that PGH intended to surrender its Extractive Mineral Leases in exchange for the declaration of the private mine, it is probable that the payment was not made. I find that no payment of rent was made to the plaintiff in 1973. (11) Mr Bradey did not know in 1973 that the plaintiff's land was subject to a mining lease or other form of mining tenement. He knew no more than that there was an old mining claim in respect of the land. There was nothing which caused him to make any further inquiry.
(12) In about 1976 Mr Bradey was informed by Mr Pederson, the Quarry Manager employed by PGH, that there had been a mining lease in respect of the plaintiff's land and that it was no longer in existence. (13) PGH continued to mine its land in Sections 5576 and 5577 in the years following 1971. That activity is screened from the homestead on the plaintiff's land and cannot be seen from the homestead.

In the report he made following his inspection of the plaintiff's land on 28 March 1973, Mr Matthews had said Mr Bradey had informed him that he received "about $40.00 annual rental from PGH for that part of Extractive Minerals Lease 49 (22 acres) which overlaps on to his property". Mr Bradey could not remember that conversation and Mr Richards had no recollection of it. Given that the purported conversation occurred almost 24 years ago that is not at all surprising. Indeed, it would have been remarkable if either Mr Bradey or Mr Matthews had been able to recall it. I find that in March 1973, when he spoke to Mr Matthews, Mr Bradey knew that the plaintiff had until 1972 been receiving rent in respect of a mining tenement of some kind. It is, however, doubtful whether he knew that the rent was being paid by PGH. The payments were received from the Department of Mines and were made by cheques drawn by the Department of Mines. There was nothing which Mr Bradey, as the agent of the plaintiff, received which showed who was paying the rent or indeed whether the payment was in the nature of rent. Furthermore, Building Bricks was the lessee of Coal Lease 49 which became Extractive Minerals Lease 49 when the new Mining Act came into operation in 1972. There is nothing to show that Mr Bradey would have been aware that Building Bricks was related to PGH. Thus, although the report made by Mr Matthew says that Mr Bradey had said that the rent was paid by PGH, the accuracy of that part of the report must be open to question. Mr Matthews said that he did not make a contemporaneous note of his conversation with Mr Bradey. He did not prepare the report until he returned to his office. Documents in the Department's files showed that PGH paid the rent. Mr Richards may have relied on these documents. However, it is unnecessary to make a finding on this issue. Even if Mr Bradey knew that PGH paid the rent, that is not relevant. What is relevant is whether Bradey as the plaintiff's agent knew of the proclamation of the private mine.

Ms Layton QC also asked Mr Bradey whether, when the plaintiff sold part of its land to PGH in 1977, he knew that the land was subject to a mining lease, private mine or any other mining tenement. He denied it. He said that he and his wife were not keen to sell the land to PGH because they were concerned that PGH would be mining too close to the living area of their homestead. He said that PGH had assured him that it did not wish to mine the land but required it only for an access road. In a letter addressed to the Premier and dated 13 July 1995, Mr Bradey referred to the sale. The relevant extract from the letter reads:

"In May 1977, after months of pestering by their agent, we sold about 14 acres of land to PGH Bricks. We were assured that this was not for mining but for an access road to another property they had purchased.

The sale was made with two conditions. That they, PGH, give up any mining claims to the balance of that property; (ie relevant to the peg mentioned above) and that they plant native trees along our new boundary, as shielding from the operations."

Ms Layton pressed Mr Bradey with this extract from the letter, suggesting to him that the reference to PGH giving up any mining claim to the balance of the plaintiff's land indicated knowledge of the existence of a mining tenement, a mining lease or a private mine on the plaintiff's land. Mr Bradey denied that suggestion. I accept his denial. The passage on which Ms Layton relies is quite equivocal. While it might indicate knowledge of the existence of some kind of mining tenement, be it a mining lease, private mine or other kind of tenement, it is equally consistent with the plaintiff wishing to be assured that PGH had no intention to mine on the plaintiff's land and did not seek any mining tenement in respect of its land, a conclusion which is reinforced by the reference to the request for trees to be planted along the new boundary so as to shield the plaintiff's land from the mining operations of PGH. The objective facts also belie the suggestion that in 1977 Mr Bradey knew of the existence of some form of mining tenement. The plaintiff had been told by the Department of Mines that he was receiving rent for an old mining tenement. No further payment of rent was made about April 1972. No mining operations had been conducted on the plaintiff's land any time while the plaintiff had owned it. There was nothing to indicate to the plaintiff that a private mine had existed on its land or had been declared in respect of its land. Indeed, all of the facts I have mentioned, in particular the discontinuance of the payment of rent, pointed to the conclusion that if the plaintiff knew that a mining tenement had previously existed on its land, it was no longer in existence. Finally, there is the evidence of Mr Bradey that, in about 1976, he was informed by Mr E Pederson, a quarry manager employed by PGH that there had been a mining lease over the plaintiff's land but that it no longer existed. Mr Pederson gave evidence that he was first employed by PGH at Golden Grove in 1976 and so it is possible that he spoke to Mr Bradey in 1976. Further, in 1977 it was unlikely that PGH would have informed him that the land was subject to a private mine lest the plaintiff should seek to increase the price of its land believing that the grant of the private mine had made the land a valuable asset to PGH.

Mr Bradey said that the conversation referred to in the letter was held with a Mr Sinclair at the office of PGH at Renown Park. I find that Mr Sinclair was not then employed by PGH. He had retired in 1974. In his affidavit, Mr Sinclair said that he had never seen Mr Bradey. Ms Layton relied on these facts and suggested to Mr Bradey that the conversation did not occur. Mr Bradey was adamant that he had spoken to someone at PGH. I accept his evidence that he had spoken to someone in authority at PGH on this matter. It obviously was not Mr Sinclair. It would not be surprising if over a time span of at least 20 years, Mr Bradey was mistaken as to the person to whom he spoke at PGH. I should add that Ms Layton did not seek to challenge the credit of Mr Bradey because of the contents of Mr Sinclair's affidavit.

There is no suggestion that any other event occurred after 1977 which would have alerted Mr Bradey or the plaintiff to the existence of a private mine until Mr Bradey was informed of that fact on about 24 April 1995 when negotiating with Mr Bernardi.

Ms Layton QC suggested to Mr Bradey that he was aware that the Department of Mines had carried out drilling on the plaintiff's land in 1976. Mr Bradey denied it. I accept his denial. The question whether drilling or any other kind of mining activity was done after 3 July 1975 is relevant only to the question of notice of the existence of a mining tenement. The drilling was not conducted by PGH but by the Department of Mines. It was unrelated to the private mine and is, therefore, not relevant to the question of notice. It is not otherwise relevant because an application for a private mine had to be made within three years of the commencement of the Mining Act 1971: see s19(1)(c) of the Act.

Proceedings 22 Years Later

The relevant proclamation was published in the Government Gazette on 29 November 1973. These proceedings were not instituted until 12 February 1996, just over 22 years later. Leave to serve the summons was granted on 16 February 1996. The plaintiff seeks an order in the nature of certiorari and orders for declarations. Certiorari is a discretionary remedy and delay may be a ground for refusing relief. Rule 98.06 of the Rules of this Court expressly provides that an application for judicial review must be commenced within six months from the date when the grounds for the review first arose and shall, in all cases, be made as promptly as possible. The Rule permits an application to be made granting an extension of time and the plaintiff seeks an extension of time. The Court also has a discretion to consider whether it is appropriate to order a declaration, notwithstanding that it has been held that a declaration is not an equitable remedy: Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR
428 at 540-456; Kasumu v Baba-Egbe [1956] AC 539. It is not clear whether delay will defeat the remedy but, in a number of instances, it has been assumed that it will do so: Ryles v Martin (1971) 1 BPR 9666 and Hogg v Scott [1947] KB 759. Sometimes the question of delay is one aspect of another discretionary factor, such as futility or the requirements of good administration. An example of the latter is R v Dairy Produce Quota Tribunal, ex parte Caswell [1990] 2 AC 738. In my view, delay may be a relevant factor and I proceed on the footing that it is. It can scarcely be ignored in this matter given the lapse of 22 years.

Two periods of delay must be identified. The first is the period of just over 22 years before the plaintiff knew of the existence of the private mine. The second is the period between April 1995, when the plaintiff first learned of the existence of the private mine, on and 12 February 1996 when the proceedings were instituted.

The fact that the delay has been as long as 22 years is not, standing alone, a reason why the plaintiff should be denied the redress it seeks: Eastern Waste Management Inc v City of Tea Tree Gully (1996) 92 LGERA 1, a case where an order was made quashing a decision made 25 years earlier. In that case the applicant succeeded notwithstanding that it had been sleeping on its rights for that period.

There are a number of factors which would justify an exercise of discretion to invalidate the proclamation notwithstanding the delay. First, it is significant that the plaintiff was not aware of the proclamation until April 1995. The case is, therefore, to be contrasted with the case where a party with knowledge of an administrative act delays commencing proceedings. In no sense is this a case where a party has been sleeping on its rights. The conclusion might be tested in this way. Assume PGH sought to enter the plaintiff's land to recover clay and shale in exercise of its rights as the grantee of a private mine. Assume also that that was the first occasion on which the plaintiff had learned of the grant of the private mine and that the plaintiff had instituted proceedings to seek to restrain the entry by PGH. I do not think that that the plaintiff should be denied relief because for 22 years it was not aware of the grant.

Next, with one exception, the determination of the issues between the parties turns on objective facts and questions of law arising under the new Mining Act. Therefore, no prejudice arises because of absence of witnesses or difficulties in recalling events so long ago. The single exception concerns the question whether the plaintiff knew of the existence of the private mine before 1995. Here again the objective facts belie any contention that the plaintiff knew that fact. Thirdly, the plaintiff's case is a strong one and, on any view of the matter, PGH ought to have known that it could not make an application for a private mine on that part of the plaintiff's land which was not subject to EML 49. Fourthly, and significantly, the position of the parties is, with one exception, no different from the position which obtained in 1973. PGH has not sought to mine the land. The exception concerns the surrender by PGH of EML 49 prior to the grant of the private mine. Fifthly, the prejudice to the plaintiff is very real, particularly as the grant relates not only to the area of EML 49, but to the whole of the plaintiff's land.

But there is also prejudice to PGH if the orders are made and that prejudice must be weighed in the balance. Ms Layton QC relied on the fact that Coal Lease 49 continued in force as a mining lease granted under the new Act and would have remained in force for the remainder of the period of the lease (until 1981) and for so long as it was renewed. She submitted that, had the plaintiff challenged the grant of the private mine in 1974 and succeeded in having the grant set aside, PGH could have sought to resuscitate its mining lease or at least to have made a fresh application for a private mine in respect of that part of EML 49 which concerned the plaintiff's land. The delay in bringing these proceedings, it was said, had denied PGH the opportunity to seek either a lease or a private mine so that it will therefore suffer substantial prejudice in that it will be denied the opportunity to extract shale and clay from the land. The position is not as serious as PGH suggests.

Section 75 of the new Mining Act in its present form provides:

(1) No claim or lease may be pegged out or granted in respect of extractive minerals on land granted in fee simple or land in respect of which native title conferring a right to exclusive possession of land exists except with the written consent of the owner of the land. (2) The owner of land does not require a mining tenement under this Act for the recovery of extractive minerals from that land for his own personal use.

Although expressed in different terms in 1974, for present purposes, the purport of s75 was the same. Extractive minerals include shale and clay: see s6. Subsequent to the declaration of the private mine, F & T Building Products Pty Ltd acquired in 1977 a substantial part of Section 5576. As already mentioned, F & T Building Products Pty Ltd is related to or controlled by PGH. PGH is in a position to obtain the consent of F & T Building Products Pty Ltd to permit it to obtain the grant of a mining lease to authorise it to extract building clay and shale from that part of Section 5576 which F & T Building Products Pty Ltd now owns. As lessee, PGH will be subject to provisions of s60 of the new Mining Act which provide that a mining operator may be required to restore land, a provision with which it would not have had to comply if the land were subject to the grant of a private mine. PGH is, therefore, still able to extract clay from the larger part of the former EML 49.

I note that s75(2) of the new Mining Act permits an owner of land to recover extractive minerals from his land for his own personal use and without obtaining a mining tenement. There might be an argument that the expression "for his own personal use": see s75(2) would be sufficient to extend to the corporate uses of PGH or F & T Building Products Pty Ltd and so authorise the use of the clay for brick making purposes. However, I think the expression "for his own personal use" is intended to limit the recovery of extractive minerals for such limited uses as the making of bricks to be used by the owner of the land in constructing buildings for himself. However, it is unnecessary to determine this question given the very strong likelihood that PGH would be able to secure the grant of a mining lease to enable it to extract the clay and shale. I, therefore, have no regard to the provisions of s75(2).

PGH was not entitled to the grant of a private mine for that part of the plaintiff's land which was not subject to EML 49. It cannot, therefore, claim any prejudice in respect of that land. It does, however, claim to be prejudiced if it cannot extract clay from the portion of EML 49 which remains on the plaintiff's land. The evidence of Mr Tennant is that that clay constitutes about one-tenth of the reserves of PGH. Despite that fact, I do not accept Mr Tennant's evidence that, if the plaintiff succeeds in this action, the viability of the operations of PGH will be threatened. That is a bald assertion which is not supported by the evidence. It is tantamount to stating that the profitability of the operations of PGH depends on being able to extract clay from the plaintiff's land. That is not commercially realistic. It is unsupported by any accounting evidence or financial statements and I reject it. At worst, the operations of PGH in this area will come to an end at an earlier time than they would have had PGH been able to extract minerals from the plaintiff's land. Furthermore, that fact must be weighed with other evidence of Mr Tennant which shows that, although PGH has always regarded Section 5576 as part of its reserves, it does not intend to utilise those reserves until some time in the future. The following question and answer in the cross-examination of Mr Tennant illustrate the company's intentions:

"Q PGH's present intention you say, do you is to go to the Bradey land pursuant to its rights under the Private Mine 215. Is that right? A Quite a way down the future that is a possibility, yes."

There is, therefore, no present intention to mine the land in the near future.

In addition to that fact, there is no certainty that PGH will be permitted to mine the land as planning controls may proscribe the extent to which it can mine on the plaintiff's land. At a series of meetings between January and June 1993 organised by the Department of Mines, a Management Plan was prepared for the Extractive Industry Zone at Golden Grove. The plan is dated 16 August 1993. Part of the plaintiff's land is within this Extractive Industry Zone and part is within the Hills Face Zone. These zones form part of the Development Plan of the City of Tea Tree Gully. Representatives of PGH attended the meetings which produced the Plan. As the introduction to the Management Plan states, the Plan

"...is intended to address the issues of long term sand and clay mining in close proximity to residential areas, to ensure the mutual co-existence of uses in a manner which both maximises the recovery of resources and minimises environmental impact on adjacent existing and proposed residential areas."

The map attached to the Plan indicates that mining operations will not be conducted on the plaintiff's land. It is intended to review the Plan at intervals of five to ten years "to take account of changes in mining and rehabilitation practice, and to adapt to changes in what is perceived as the range of desirable after uses for the area". No review of the Plan has yet been undertaken. The Management Plan is plainly intended to define the limits of mining in the Extractive Industry Zone and at present it excludes the plaintiff's land. It is not clear whether the prescribed limits will be altered and, if they were, there is nothing to indicate the manner in which they would be altered. If the present limits remain, PGH may not be able to mine the land in any event. In addition, parts of the plaintiff's land, which are the subject of the private mine, lie within the Hills Face Zone which also restricts mining operations. Doubts therefore exist as to the extent to which PGH will be able to extract clay from this land and these doubts cloud the likely prejudice of PGH.

I am very conscious of the fact that, on one view of the matter, PGH is now worse off for having applied for and being granted a private mine than if it had done nothing but apply for a renewal of EML 49 pursuant to s38 of the new Mining Act. But there are several reasons why I think that is too simplistic a view of the matter. Had PGH simply renewed its mining lease, it would have been bound by s9. Next, the application was not confined to the area of EML 49 but extended to the whole of the plaintiff's land. PGH simply was not entitled to the grant of a private mine in respect of that part of the land not subject to EML 49. Thirdly, PGH knew that it had not conducted mining operations of any kind on the plaintiff's land. Finally, PGH must accept the consequences of its considered decisions. Its attention had been drawn to the fact that it would have had to surrender its mining lease but it decided, nevertheless, to proceed with the application for a private mine. If it had read s19(4), it ought to have been aware that its application could not succeed in respect of the whole of the plaintiff's land. These are all factors which tell against PGH and to which I have regard in the exercise of my discretion whether to grant or refuse relief.

The prejudice to PGH must be weighed against the prejudice to the plaintiff. The prejudice to the plaintiff is very real because the private mine applies to the whole of its land. The fact that the proclamation was made without power is very compelling and when combined with the prejudice to the plaintiff must outweigh whatever prejudice or disadvantage might be incurred by PGH. Having carefully weighed the competing factors, I think that the interests of justice require that the plaintiff be permitted the redress it seeks. I am particularly influenced by what I perceive to be the merits of the plaintiff's case. Although PGH will suffer some loss, that is not a sufficient reason for denying the plaintiff the redress it seeks. The fact that it is now more than 22 years since the proclamation was made is not, therefore, a ground which should deny the plaintiff the relief which it seeks.

The Period April 1995 to February 1996

It is necessary also to consider if the plaintiff should be denied relief because of the delay between learning of the existence of the private mine in April 1995 and the commencement of these proceedings in February 1996, a period of almost ten months.

When in late April 1995, Mr Bradey first learned that the plaintiff's land had been declared to be a private mine, he went to the Department of Mines to endeavour to ascertain what had occurred. His inquiries took some time. That is easily understood. The relevant files were old and could not readily be obtained. It was also necessary to trace the matter through more than one file. Not until mid-May 1995 was he able to confirm that a private mine had been declared in favour of PGH. He then instructed solicitors, Stratford & Co, to act for the plaintiff. On 23 May 1995 Stratford & Co wrote to PGH a long letter setting out the facts, suggesting that the grant of the private mine was voidable and stating that, if necessary, the plaintiff would institute legal proceedings seeking a declaration to that effect. The letter concluded by advancing a proposal to resolve the difficulties. Thus, not long after the plaintiff had learned of the existence of the grant of the private mine, PGH was clearly alerted to the facts and also to the fact that the plaintiff would, if necessary, challenge the validity of the grant in legal proceedings.

PGH instructed Ward & Partners to act as its solicitors. On 16 June 1995 Stratford & Co sent to Ward & Partners a very long letter setting out the facts in even greater detail than in their earlier letter. The letter enclosed 18 relevant documents. Almost all of those documents have been proved in these proceedings. The letter advanced a proposal for resolution of the difficulties but reiterated the intention of the plaintiff to seek to set aside the grant, if necessary. Thus, PGH was again alerted not only to the intention of the plaintiff to seek to set aside the grant but also to many of the relevant documents. Indeed, the documents might fairly be said to be key documents. In June and July 1995, proposals and counter proposals were exchanged but nothing was agreed. On 24 July 1995 the plaintiff terminated its instructions to Stratford & Co. On 29 July 1995 it wrote to Ward & Partners advising that it had done so and that it withdrew all previous offers to resolve the matter.

While these matters were occurring, Mr Bradey had also written to the Minister for Mines and Energy informing him of the matter and seeking his assistance. On 8 August 1995, the Minister wrote to both Mr and Mrs Bradey and to PGH. In this letter to the Bradeys, the Minister said that the matter had been reviewed by his Department and advice had been received from the Crown Solicitor. His letter included the following remarks:

"I expressly say that I do not offer you any advice on the conduct of your claim against PGH. You will have to seek your own advice on this matter. I wish simply to make several points in relation to this matter which may assist you:-

1. I am advised that on the assumption that there appears to have been a failure to consult with you and that the area in question was not the subject of previous mining rights, the grant of Private Mine 215 is invalid in so far as it applies to the land which was not already subject to mining rights as the time of the application. 2. Accordingly, my stance is that on the information I currently possess the declaration of a private mine by way of proclamation was void in so far as it relates to your land. I reiterate, however, that you should take your own legal advice on this question. 3. On the assumption that the private mine is invalid you will be able to approach the courts with a view to having the mine declared invalid but again this is a matter for your own advice. 4. I am prepared to support such an application on the basis of the facts you have provided to me and assuming that these are all the relevant facts."

In the letter the Minister said that he was not prepared to revoke the grant of the private mine. However, he has expressly stated his intention to support an application to set aside the grant of the portion as stated by Mr Bradey. He enclosed in that letter a letter sent by him on the same day to PGH.

The letter sent to PGH stressed the fact that the Minister had heard only the plaintiff's version of the facts. The letter continued:

"I have sought the advice of the Crown Solicitor on the assumption that this portion of the Bradey's land was not already subjected to mining rights in PGH's favour at the time of PGH's application for the private mine and on further assumption that the Bradey's were not consulted when the private mine was granted. I am advised by Crown Law that Private Mine 215 was invalidly granted in relation to the Bradey's land on these assumptions. I have been advised that there was no authority in the Minister under section 19 to declare the land to be the subject of a private mine when no pre-existing mineral rights were held over that land by the applicant to the private mine and that in any event it is a mandatory requirement of the common law that a landowner should be consulted before his property rights are affected by a government agency acting under statutory authority.

Looking at the matter from a common sense point of view, it strikes me immediately that it appears PGH was not entitled to Private Mine 215 in the first place in so far as it applied to the portion of the Bradey's land not covered by existing mining rights and that PGH only obtained so extensive a private mine through an administrative oversight (caused, I would suggest, by the terms of PGH's application) and in any event contrary to the Mining Act's requirements. Unless there is some good reason to the contrary of which I am unaware, I would imagine that the most sensible course of action would be for PGH to acknowledge the administrative error and to agree to a cancellation of the mine in so far as it relates to the Bradey's land. As I understand the matter, the Bradey's land has never been worked, so this would seem to be an appropriate option.

I am conscious, however, that I have not heard your side of the matter and it may be that you wish to raise matters for my consideration. I am happy to do that.

I should point out that the Bradey's have requested me to take action in relation to this matter. Since the problem has arisen through a departmental error, I do feel obliged to investigate the matter and to take whatever action is appropriate to resolve this question according to the merits.

In that connection, I point out that I do not exclude the initiation of legal proceedings in the Crown's name to have the Private Mine declared invalid in so far as it applies to the Bradey's land.

I would ask you to consider this letter carefully and I would be happy to receive your response at your earliest convenience."

These letters did not lead to any resolution of the issues. I interpolate that, given the tenor of these letters and, in particular, the tenor of the letter to PGH, it was reasonable for the plaintiff not to institute legal proceedings immediately, particularly as the Minister did not rule out the possibility of legal proceedings being instituted by the Crown.

On 14 August 1995, the plaintiff instructed Daenke O'Donovan, his present solicitors. Mr Burgess of that firm then undertook a search of the files held by the Department of Mines to ascertain the events leading to the declaration. His evidence is not in dispute. He examined the provisions of the repealed Act and of the new Mining Act relating to coal leases, private mines and amendments relating thereto. He said that this necessitated examining the import of at least 13 amendments over a period of 65 years. However, it was not until 14 September 1995 that he wrote to the Department of Mines requesting access to the Department's files. On 21 September 1995 the Department wrote advising that the files were available for inspection and on 3 October 1995 he inspected them. The Department supplied copies of documents requested by Mr Burgess in the course of his searches. He also learned of the existence of other relevant files. The files provided by the Department were difficult to follow. After spending many hours reviewing the documents provided by the Department, Mr Burgess arranged to inspect the original file once more. On 2 November 1995 he again inspected the files held by the Department. His searches disclosed other documents and he requested other relevant files. He made further searches on 6 November.

On 27 November 1995 Daenke O'Donovan instructed counsel to advise the plaintiff as to the prospects of success of an application to invalidate the declaration. The brief to counsel included a 25 page chronology of the matter. Shortly before Christmas 1995, the counsel who had been instructed informed Daenke O'Donovan that he would not be able to provide an opinion for some time. In late December 1995 Daenke O'Donovan instructed other counsel. In the meantime, on 9 December 1996 Mr Burgess had made searches at the Registrar General's Office and had perused records relating to the original grant of Section 5576, which had vested minerals in the holder of the grant. On 10 January 1996 Daenke O'Donovan wrote to Ward & Partners. It appears this was the first occasion on which they had done so. In that letter Daenke O'Donovan advised that they had been instructed to issue proceedings to challenge the validity of the grant. The letter set out in detail the grounds upon which the application would be made. On 12 February 1996, it issued these proceedings.

Even allowing for the complexity of the matter and the fact that it was necessary to search through a number of files for documents created more than 20 years ago, the plaintiff's solicitors did not conduct their searches and inquiries with all expedition. There was no reason why a month should elapse between the receipt of the plaintiff's instructions and the sending of the first letter to the Department of Mines, particularly given the views expressed in the Minister's letter of 8 August 1995. Further, the documents were available as from 21 September but it took about two months to complete the searches. However, it is inappropriate to focus only on the searches at the Department of Mines. It was necessary also for the solicitors to search at the Lands Titles Office to trace the chain of title of the plaintiff's land and to establish its entitlement to minerals on Section 5576. It is curious also that Daenke O'Donovan did not write to Ward & Partners on receipt of their instructions advising that the plaintiff was intending to pursue the matter.

Daenke O'Donovan were also aware that the plaintiff had learned of the existence of the grant in April 1995. They ought to have been aware that the application for an order by way of certiorari must be made within six months from the date when the grounds of review first arose. True it is that, on one view, the grounds first arose in 1973. On another view, they arose in April or May 1995. Whatever view was correct, it behoved the plaintiff's solicitors to proceed expeditiously. Where there has been an undue delay, the Court has the discretion to refuse relief even if the court is satisfied in the light of all circumstances that there was good reason for the failure to act promptly: R v Stratford-on-Avon; ex parte Jackson [1985] 3 All ER 769, 774; R v Secretary of State for Health; ex parte Furneaux [1994] 2 All ER 652.

Notwithstanding that about nine months elapsed between the plaintiff's first discovery of the existence of the grant and the institution of these proceedings, I do not think that delay should disqualify the plaintiff from the relief it seeks. It is apparent that, on 23 May 1995, PGH had notice in quite unequivocal terms that the plaintiff intended to take proceedings to set aside the grant if it could not agree with PGH a resolution of the matter which was satisfactory to it. That letter was written quite soon after the plaintiff had discovered many, though not all, of the relevant facts. The letter of 16 June 1995 from Stratford & Co to Ward & Partners, which enclosed most of the relevant documents, confirmed the position as stated in the letter of 23 May. PGH was thus not only alerted to the fact of a potential claim to set aside the grant but was also provided with most of the relevant documents. The letter from Daenke O'Donovan of 10 January 1996 restated what PGH already knew, namely that proceedings would be instituted. In addition, it set out the grounds of the application. PGH was then in a position to institute its own inquiries.

Significantly, there was no material change of fact after April 1995. The relevant facts were the same in February 1996 as they were in April 1995. The lapse of time between April 1995 and February 1996 has not caused any prejudice to PGH which did not already exist. It has not been delayed in its mining operations. It had not sought to commence mining operations on the plaintiff's land. Indeed, as already mentioned, PGH does not intend to commence mining operations on that land for some years yet.

There is one further factor. Although the application for judicial review was served on PGH on 5 March 1996, it was not until 22 May 1996 that PGH filed its first affidavit in answer to the application. It was sworn by Mr Tennant. He deposed to facts which, he asserted, demonstrated that an order quashing the declaration of a private mine would cause substantial prejudice to PGH. Mr Tennant swore a further affidavit on 26 June 1996. It contained further evidence going to the question of prejudice. However, no application to set aside the order granting leave to serve was made until 27 August 1996, some five months after the proceedings had been served on PGH. That fact only serves to confirm that, although PGH was concerned that it would suffer prejudice, it did not believe that there was any pressing urgency and that the position which existed in August 1996 was no different from that in April/May 1995. Certainly, there is no evidence from PGH which tends to point to the contrary.

On 1 October 1996, Mr Tennant swore a further affidavit in support of the application to set aside the grant of leave to serve the application. The application was heard by a Master on 4 October 1996. The application was dismissed. The Master took the view that it would be necessary to inquire into the merits of the application which, he thought, was a task for the trial judge. PGH did not appeal from that order. In the course of argument, Ms Layton QC re-agitated the application of PGH to set aside the grant of leave to serve the summons. She submitted that I should invoke Rule 84.12 to set aside the order. I do not think PGH should be criticised for accepting the proposal made by the Master which, with respect, was an eminently suitable way of dealing with the issue since the Court will have regard to delay in determining whether to grant the relief sought. However, notwithstanding the terms of the Rule and the views expressed in Commonwealth Bank of Australia v Forshaw (1990) 55 SASR 247 and T.R.A.M.S. Pty Ltd v Grand Hotel Pty Ltd (1993) 170 LSJS 313 there are several reasons why it is not appropriate to make an order pursuant to Rule 84.12 and set aside the order of the Master. First, PGH did not institute an appeal from the order granting leave to serve. Secondly, PGH did not promptly apply to seek to set aside the order granting leave to serve. Instead, it waited for about five months before making its application. Thirdly, and perhaps most significantly, the question of delay and any prejudice occasioned thereby is more appropriately considered when determining whether the plaintiff is entitled to the relief it seeks.

For these reasons, I do not think the delay between April 1995 and February 1996 should deny the plaintiff the remedies it seeks.

Procedural Fairness

As the proper interpretation of s19 requires that the only person who could apply for the grant of a private mine was the owner of the subject land or a person claiming through him, it is unnecessary to consider the question whether the declaration of the grant of a private mine was made in breach of the rules as to procedural fairness. This interpretation of s19 explains why no provision has been made for the owner to be notified of an application for a private mine. If the owner is making the application, there is plainly no need for notice. Similarly, if the application is made by a person deriving an interest from the owner, there is no need for notice. It would be otiose to require notice in those circumstances. The position is quite different if the application could be made by the holder of a mineral lease issued pursuant to the new Mining Act. In case my conclusions are wrong, it is necessary to deal with the issue of procedural fairness.

The plaintiff submits that there was a breach of the rules of natural justice. It relies on the fact that it did not receive notice of the application. The plaintiff does not assert that it generally had a right to notice. Instead, the plaintiff submits that it was entitled to notice of the application only if a person other than the owner of the land was entitled to apply for the grant of a private mine.

In the context of administrative decision-making, it has been held that it is more appropriate to speak of a duty to act fairly or to accord procedural fairness than to use the expression "to comply with the rules of natural justice" because the expression "natural justice" has been associated with procedures followed by courts of law: Kioa v West (1985) 159 CLR 550, per Mason J at 583, and to like effect Wilson J at 601. The relevant principles are well established. The following principles are applicable to this application.

1. There is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect, destroy, defeat or prejudice a person's rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention: Kioa v West (supra) at 584, 618-619; Annetts v McCann (1990) 170 CLR 596 at 598; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 576, 585. In this context, the expression "rights and interests" must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests: Kioa v West (supra); Ainsworth v Criminal Justice Commission (supra) at 576.

2. A statutory intention to exclude procedural fairness must be manifest. It is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations; the intention must satisfactorily appear from express words or plain intendment: Commissioner of Police v Tanos (1958) 98 CLR 383, 396; Haoucher v Minister for Immigration
(1990) 169 CLR 648, 680; Annetts v McCann (supra) at 598. In Haoucher Deane J said (at 652) that there is a strong presumption that administrative decision-makers are bound by requirements of procedural fairness in any case where "a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial personal entity in an individual capacity (as distinct from merely as a member of a section of the general public)."

3. There is no body of rigid procedural rules which must be observed regardless of circumstances. The precise content of the requirements of procedural fairness will vary according to the particular circumstances of the case. Relevant factors include the nature of the inquiry, the interest at stake and the rules under which the person making the decision is required to operate: R v Commonwealth Conciliation & Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546, 552-553; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, 311, 319-321; Kioa v West (supra) at 584-585, 601, 609-610; Haoucher v Minister for Immigration (supra) at 652-653, 660, 672.

4. An exercise of a statutory power by the Governor which affects the rights of a person is subject to the common law rules of natural justice unless the application of those common law rules is excluded by statute: FAI Insurances Ltd v Winneke (1982) 151 CLR 342.

The requirement that there be a clear manifestation of a statutory intention to exclude the rules of procedural fairness is but one aspect of the long standing presumption against the modification or abrogation of fundamental rights in the absence of a clear expression of an unmistakable and unambiguous intention to do so. That principle was affirmed in Potter v Minahan (1908) 7 CLR 277 at 304 and more recently reiterated in Coco v The Queen (1994) 179 CLR 427 at 436-438.

The decision to grant a private mine adversely affects the interests of an owner in his land except where the grantee is the owner or a person claiming through him. Unless the Mining Act contains a clear expression to the contrary, the owner is entitled to be heard and to receive notice of the application for a private mine: see Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, 143 ER 414; Kioa v West (supra); Ainsworth v Criminal Justice Commission (supra). Although Mason J noted in FAI Insurances Ltd v Winneke (supra) at 361, that there has been a greater reluctance to insist upon the rules of procedural fairness where power is exercised to grant or refuse an application for a licence, those policy issues which have led to that reluctance, have no operation where the grant of a licence to one person adversely affects the property of another. An examination of the provisions of a new Mining Act indicates that it does not displace the rules of procedural fairness. For example, the Act requires a mining operator to give at least 21 days notice before entering land to carry out mining operations except where the mining operator has the consent of the owner or certain other conditions obtain. The owner of the land is entitled to object to entry by the mining operator and the objection will be heard in an appropriate court: s58(A). In addition, s59 requires a mining operator to give notice of an intention to use declared equipment and that section provides for determination of an objection by the land owner in the Wardens Court. Thus, the Act does not appear to evince an intention to exclude the rules of procedural fairness. More particularly, s19 provides its own code for the grant of a private mine and contains no provision which expressly or by necessary implication excludes the rules of procedural fairness. The fact that it is mandatory to grant a private mine if the requirements of s19(1) are satisfied and if the applicant is a person who meets the criteria prescribed by s19(16) does not mean that the owner of the land is not entitled to notice. That fact leads to no other conclusion than that the owner's capacity to make representations will be limited to the question whether the criteria in s19 permit the applicant to make the application. He would not, therefore, be able to venture into policy issues. The fact that the owner's objection will be limited to legal issues rising under s19 re-inforces the conclusion that the owner is entitled to notice. Finally, in no sense would the operation of the Act be impaired by the requirement to give notice of an application for a private mine.

For these reasons, I conclude that the Mining Act and, in particular, s19 do not exclude the rules of procedural fairness. The plaintiff was, therefore, entitled to notice of the application if the applicant was other than a person claiming through him. It did not receive notice. It follows, therefore, that the grant of a private mine was made in breach of the rules of procedural fairness. The Governor was acting on the advice of a Minister who was bound to comply with the rules as to procedural fairness and, as there was a failure to observe those rules, the decision to proclaim the private mine which was made on that advice may be set aside: FAI Insurances Ltd v Winneke. The factors which affect the exercise of the discretion to grant or refuse relief apply with equal force to this breach. If it had been necessary, I would have exercised my discretion to set the grant aside on the ground that there had been a breach of the rules of procedural fairness.

Conclusion

I summarise the effect of these all too lengthy reasons.

1. Notwithstanding that the proclamation was made by the Governor, the Court has jurisdiction to determine the issues in these proceedings. It follows that the plaintiff is entitled to apply to set aside the proclamation.

2. The plaintiff is not defeated by delay.

3. PGH was not entitled to apply for a private mine on the plaintiff's land because

(a) It was not divested of its property in minerals on the plaintiff's land so that s19(1)(a) was not satisfied.

(b) PGH was not a person entitled to apply pursuant to s19(1)(16).

(c) Mining operations had not been conducted to satisfy s19(1)(b).

4. On any view of the matter, PGH was not entitled to apply for the grant of a private mine in respect of land not subject to EML 49.

5. As the requirements for s19 had not been satisfied, the Governor had no power to make the proclamation and the making of the proclamation was ultra vires.

For these reasons, the plaintiff is entitled to an order extending the time within which to make this application and to an order setting aside the proclamation made on 29 November 1973. I will hear the parties as to the terms of the necessary orders.