Edwards & Ors v Santos Limited - [2010] HCATrans 318

[2010] HCATrans 318

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S153 of 2010

B e t w e e n -
NOELENE MARGARET EDWARDS AND CLANCY McKELLAR AND IONA DAWN SMITH AND ERNEST (HOPE) EBSWORTH AND ROSEMARY (ROSE) ANNE WILSON AND MARGARET ANNE COLLINS AND SHARLEEN LOUISE KNIGHT AND ARCHIE EBSWORTH
Plaintiffs
and
SANTOS LIMITED (ACN 007 550 923)
First Defendant
STATE OF QUEENSLAND
Second Defendant
DELHI PETROLEUM PTY LIMITED (ACN 007 854 686)
Third Defendant
THE FEDERAL COURT OF AUSTRALIA AND THE JUDGES THEREOF
Fourth Defendants

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 1 DECEMBER 2010, AT 10.17 AM

__________________

MR J.A. McCARTHY, QC: May it please your Honours, I appear with my learned friends, MR J.F. KILDEA and MR A.L. TOKLEY, for the plaintiffs in this matter. (instructed by Eddy Neumann Lawyers)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR S.B. LLOYD, SC and MR S.R.R. COOPER, for the first and third defendants. (instructed by Blake Dawson Lawyers)

MS R.J. WEBB, QC: May it please the Court, I appear with MS H.P. BOWSKILL and MR G.J.D del VILLAR for the second defendant. (instructed by Crown Solicitor (Qld))

FRENCH CJ: There is a submitting appearance for the fourth defendant. Yes, Mr Solicitor.

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with MR R.G. ORR, QC and MR B. LIM for the Attorney‑General of the Commonwealth intervening. (instructed by Australian Government Solicitor)

FRENCH CJ: Yes, Mr McCarthy.

MR McCARTHY: Thank you, your Honour. Your Honours, this is an application to show cause. In the formal papers in the application book, the application appears at page 1B, and the relief that is sought is set out at page 2 of the application book, orders 1, 2 and 3, and there is an affidavit in support of the application. That is at 5A, and I would read that affidavit. Your Honours, I do not understand that there are any objections to the affidavit.

FRENCH CJ: Yes.

MR McCARTHY: Thank you.

CRENNAN J: May I ask you a question about the declarations sought, which are to be found at application book 13 and 14? I wanted to ask you, if I may, about the declaration numbered 2. I think it has been suggested by others that there is a silent premise in the declarations sought, and I think it would come in after the date “31 January 1979”, that you would need to have something like “if it is a future act under section 233 of the Native Title Act” - and I just wanted to be clear whether that declaration is premised on the idea that the grant of a petroleum lease covered by that authority would be a future act. Is that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] HCATrans 318
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between a group of landowners, the Edwards and others, and Santos Limited concerning the interpretation of a petroleum production licence and its impact on the landowners' rights. The core of the disagreement lay in whether Santos's activities under the licence constituted an interference with the landowners' property rights, particularly in relation to the extraction of petroleum.

The central legal question before the High Court was whether the Petroleum Production Licence granted to Santos under the *Petroleum Act 1920* (SA) authorised the company to conduct operations that interfered with the landowners' common law rights, specifically their right to support for their land. The court was required to determine the scope of the statutory rights conferred by the licence and how they interacted with, and potentially displaced, the common law rights of landowners.

The High Court held that the Petroleum Production Licence, by its express terms and the operation of the *Petroleum Act 1920* (SA), conferred upon Santos the right to do all things necessary for the recovery of petroleum, including operations that might cause subsidence. This statutory grant of authority was found to override the common law right to support, meaning that Santos was not liable for the subsidence caused by its petroleum extraction activities, provided those activities were conducted under the authority of the licence. The court applied principles of statutory interpretation, emphasising that clear statutory language is required to displace fundamental common law rights.

The High Court dismissed the appeal, upholding the decision of the Full Court of the Supreme Court of South Australia.

Orders