Gadtech Materials Pty Ltd v Magistrates Court of Tasmania

[2021] TASFC 15

[2021] TASFC 15

COURT:	SUPREME COURT OF TASMANIA (FULL COURT)
CITATION:	Gadtech Materials Pty Ltd v Magistrates Court of Tasmania [2021] TASFC 15
PARTIES:	GADTECH MATERIALS PTY LTD
v
MAGISTRATES COURT OF TASMANIA (MINING
TRIBUNAL)
GA AND PA CLARKE (LANDOWNERS)
FILE NO:	1751/2021
JUDGMENT
APPEALED FROM:	Gadtech Materials Pty Ltd v Magistrates Court
of Tasmania [2021] TASSC 29
DELIVERED ON:	10 December 2021
DELIVERED AT:	Hobart
HEARING DATE:	8 November 2021
JUDGMENT OF:	Estcourt J, Geason J, Martin AJ
CATCHWORDS:

Energy and Resources – Minerals – Courts or tribunals exercising jurisdiction in mining matters – Tasmania –

Full Court of Appeal – Appeal against refusal by primary judge to grant extension of time on the basis

that the appellant had no standing in the first instance and therefore no prospect of success an application

for an order to review the decision of the Mining Tribunal – Decision of primary judge upheld – Appeal

refused.

Mineral Resources Development Act 1995 (Tas), s 150(1).
Aust Dig Energy and Resources [1125]

Statutes – Acts of Parliament – Interpretation – Interpretation of acts and provisions – Particular legislation – Mineral Resources Development Act 1995 (Tas) – A potential transferee of a mineral tenement is not

"an applicant for a mineral tenement" within the meaning of ss 3 and 150 of the Act.

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, CPB Contractors Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70, R v A2 [2019] HCA 35, 373 ALR 214, referred to.

Mineral Resources Development Act 1995 (Tas), ss 3 and 150(1).

Aust Dig Statutes [1063]

REPRESENTATION:

Counsel:

Appellant:	D Zeeman
Respondent:	B McTaggart SC

Solicitors:

Appellant:	Butler McIntyre & Butler
Respondent:	McGrath & Co

Judgment Number:	[2021] TASFC 15
Number of paragraphs:	37

Serial No 15/2021 File No 1751/2021

GADTECH MATERIALS PTY LTD v MAGISTRATES COURT OF TASMANIA

(MINING TRIBUNAL) AND GA and PA CLARKE (LANDOWNERS)

REASONS FOR JUDGMENT FULL COURT ESTCOURT J

GEASON J
MARTIN AJ

10 December 2021

Orders of the Court:

1            Appeal dismissed.

Serial No 15/2021 File No 1751/2021

GADTECH MATERIALS PTY LTD v MAGISTRATES COURT OF TASMANIA

(MINING TRIBUNAL) AND GA and PA CLARKE (LANDOWNERS)

REASONS FOR JUDGMENT FULL COURT ESTCOURT J

10 December 2021

The appeal

1 On 30 June 2021 Blow CJ, in the exercise of his discretion, declined to grant the appellant an extension of time under s 23(1)(b) of the Judicial Review Act 2000 ("the JRA").

2 The appellant wished to seek an order of review under the JRA of a decision of a magistrate, Mr D Fairley, sitting in the Mining Tribunal jurisdiction of the Magistrates Court of Tasmania on 11 December 2020.

3 The appellant had made an application under s 150 of the Mineral Resources Development Act 1995 ("the Act") for a determination as to the rate of compensation to be paid to Arthur and Patricia Margaret Clarke, over whose land a mineral tenement had been granted under the Act.

4 In order to make such an application the appellant, relevantly, needed to be "an applicant for a mineral tenement" within the meaning of s 150 of the Act.

5 The mineral tenement over Mr and Mrs Clarke's land was held by a company called Bis Industries Ltd. That company had made an application under the Act for approval of a transfer of the mining tenement to the appellant but, as at 11 December 2020, no decision on that application had been made by the responsible Minister.

6            The learned magistrate concluded that a proposed transferee of a mineral tenement was not an "applicant for a mineral tenement".

7 Blow CJ agreed with that conclusion. He refused the application to extend time on the basis that, as the appellant had no standing, the application for an order of review under the JRA had no prospects of success. There was therefore no purpose to be served in granting an extension of time.

8   This is an appeal against that refusal.

The grounds of appeal

9 First, the appellant appeals on the ground that the learned primary judge "erred in concluding that the learned magistrate was correct in his conclusion that the appellant as a proposed transferee of a mining lease from Bis over land owned by the land owners had no standing to apply to the Mining Tribunal to determine the rate of compensation payable pursuant to the Act, s 150."

10 Second, the appellant appeals on the ground that the learned primary judge "erred in concluding that the appellant was not 'an applicant for a mineral tenement' for the purposes of the Act, s 150(1)".

11   Those two grounds are unhelpful and without more are without merit.

12   Third, the appellant appeals on the ground that "the judgment is inconsistent with the provisions

of the Act, s 144".

2   No 15/2021

13 Section 144 of the Act is the section which stipulates that compensation is payable to the owner or occupier of private land for any compensable loss suffered or likely to be suffered as a consequence of exploration or mining under a mining licence or lease over their land.

14   There is nothing in the learned primary judge's "judgment" which is inconsistent with that

section.

15           Under that section, any person "who is the owner or occupier of land, the Crown lessee or Crown licensee, a holder of a forestry right, the holder of a mineral tenement or an applicant for a mineral tenement may apply to the Mining Tribunal to determine the rate of compensation that is payable."

16 The learned primary judge's conclusion that a proposed transferee of a mineral tenement was not an "applicant for a mineral tenement" does not impact on the operation of s 44 of the Act, nor upon the operation of any other section, or the Act itself.

17 Fourth, the appellant appeals on the ground that "the judgment is inconsistent with the sound economic, environmental and land use management as referred to in the long title of the Act in that a proposed transferee the subject of an application for approval to transfer a mining lease pursuant to the Act, s 93(1) would be denied the opportunity to apply to the Mining Tribunal to determine the rate of compensation in the event that the transferor, as the holder of a mineral tenement, is or becomes incapable of applying to the Mining Tribunal for the purposes of the Act, s 150 and thereby preventing the exploitation of the resource pursuant to the lease".

18 The long title to the Act reads as follows:

"An Act to provide for the development of mineral resources consistent with sound economic, environmental and land use management and to repeal the Mining Act 1929".

19   This argument was put to the learned primary judge who responded thus:

"In my view there is nothing about the interpretation of s 150 adopted by the learned magistrate that is inconsistent with sound economic, environmental and land use management. It may be that in this case Gadtech has somehow got 'snookered' by not making appropriate contractual arrangements with its vendor in relation to the negotiation or assessment of compensation. But there is no reason why the resolution of any difficulties in relation to compensation, by negotiation or assessment, cannot be made if appropriate contractual arrangements are made between vendor and purchaser."

20           I respectfully agree. As his Honour said, "a proposed transferee would be well advised to make arrangements for the proposed transferor to protect its interests in relation to the negotiation or assessment of compensation".

21   The final ground of appeal is an equally unhelpful repetition of the first two grounds. It asserts:

"That the learned Chief Justice erred in concluding that the meaning of the words 'an applicant for a mineral tenement' in the Act, s 150, refers only to a person or entity who has applied for the grant of a new mineral tenement and thus not to a person or entity who hopes or expects to receive a transfer of an existing mineral tenement."

Disposition

22 This appeal, first and foremost, involves a simple question of statutory construction. The same question that was before the learned magistrate and the learned primary judge. That question is whether a proposed transferee of a mineral tenement, that is to say "a person or entity who hopes or expects to receive a transfer of an existing mineral tenement" is an "applicant for a mineral tenement" within the meaning of ss 3 and 150 of the Act.

3   No 15/2021

23   At [22] of his reasons for decision the learned primary judge said:

"The starting point in the interpretation of the critical words in s 150 is to consider their ordinary meaning[1]. In their ordinary meaning, the words 'an applicant for a mineral tenement' refer to a person or entity who has applied for the grant of a new mineral tenement, not to a person or entity who hopes or expects to receive a transfer of an existing mineral tenement. If it is suggested that the ordinary meaning will produce an absurd or inconvenient result, or if there is ambiguity as to the words, then one is required to have regard to the context and purpose of the legislation. There is no ambiguity in the words 'an applicant for a mineral tenement'. And for the reasons I have stated, there is nothing so inconvenient as to require those words to be given a radically different meaning. I think the learned magistrate was correct in the interpretation that he adopted."

[1] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78]; Alcan (NT) Alumina Pty Ltd v

24 In my view his Honour's reasoning and his conclusion are unimpeachable. As his Honour said at [16] of his reasons, the scheme of the Act is such that, until such time as the Minister approves a transfer of a mineral tenement, and the transferor subsequently transfers it, it is the lessee or licensee that is the holder of the mineral tenement. Under s 144, it is the licensee or lessee that has the obligation to pay compensation, not a proposed transferee.

25           Given my view as to that, it is unnecessary for me to consider any of the other questions agitated in the written submissions of the parties, namely those concerning the judicial or administrative nature of the decision with respect to which the extension of time to appeal was sought and the reasonableness or otherwise of the appellant's explanation for its delay in the application to extend time.

26   The appeal is wholly without merit and should be dismissed.

4   No 15/2021

File No 1751/2021

GADTECH MATERIALS PTY LTD v MAGISTRATES COURT OF TASMANIA

(MINING TRIBUNAL) AND GA and PA CLARKE (LANDOWNERS)

REASONS FOR JUDGMENT FULL COURT
GEASON J
10 December 2021

27 If a potential transferee of a mining lease is not an applicant for a mineral tenement within the terms of s 150 of the Mineral Resources Development Act 1995 (the Act), the appeal must fail. That is a matter of statutory interpretation.

28   The factual background to this appeal is contained in the judgment of Estcourt J. I gratefully

adopt it.

The Act

29 "Mineral tenement" is defined in s 3 of the Act. It means "a licence or lease other than a

prospecting licence or a group prospecting licence".

30 Section 150 of the Act provides:

"150 Determination of compensation

(1) If there is no compensation agreement, any person who is the owner or occupier of land, the Crown lessee or Crown licensee, a holder of a forestry right, the holder of a mineral tenement or an applicant for a mineral tenement may apply to the Mining Tribunal to determine the rate of compensation that is payable, or the amount of compensation that is payable, under this Part in regard to land in which that person has an estate or interest.

In determining the amount of compensation payable, the Mining Tribunal is to take into account any amount previously paid for compensation."

(2)

31   At [22]-[23] Blow CJ said:

"[22] The starting point in the interpretation of the critical words in s 150 is to consider their ordinary meaning. In their ordinary meaning, the words 'an applicant for a mineral tenement' refer to a person or entity who has applied for the grant of a new mineral tenement, not to a person or entity who hopes or expects to receive a transfer of an existing mineral tenement. If it is suggested that the ordinary meaning will produce an absurd or inconvenient result, or if there is ambiguity as to the words, then one is required to have regard to the context and purpose of the legislation. There is no ambiguity in the words 'an applicant for a mineral tenement'. And for the reasons I have stated, there is nothing so inconvenient as to require those words to be given a radically different meaning. I think the learned magistrate was correct in the interpretation that he adopted.

[23] It follows that the application for judicial review has no prospects of success. There is no purpose to be served, therefore, in granting an extension of time. For these reasons the application is dismissed."

32           Orthodox principles of statutory interpretation require that meaning is to be given to the language of the provision read in its context: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]. The context and purpose of an Act can be understood, not just from the terms of the legislation, but also from the accompanying explanatory memoranda, or a second

5   No 15/2021

reading speech. To the extent that Blow CJ might be suggesting at [22] that reference is not had to "the context and purpose of the legislation" until it is suggested that the ordinary meaning of the language "will produce an absurd or inconvenient result, or if there is ambiguity as to the words", that is incorrect. A Court is not precluded from considering such matters until an absurd result is suggested or ambiguity is exposed: CPB Contractors Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70 at [8] and [50]-[60]. In R v A2 [2019] HCA 35, 373 ALR 214 at 223-225, [31]-[37], the High Court makes clear that any suggestion that context and secondary material may not be examined until ambiguity emerges, is incorrect.

33 The purpose of s 150 is to provide for a compensation agreement to be made by the Mining Tribunal where one has not been struck. It has a focus and function which does not contemplate prospective interests. A compensation agreement exists to regulate the terms for compensation between those who have, or because it has been applied for, will have, an actual interest in such a tenement. The appellant is in neither category: "applicant for a mineral tenement" means one who has made such application. It is not contemplated by s 150 that those who might acquire an interest in a mining tenement at some future time, but who have not applied therefor, should have recourse to a procedure that is intended to regulate the terms of an extant or (sufficiently) imminent legal relationship. The appellant has not crossed the threshold from party to an agreement to acquire a tenement, to applicant for such interest, the latter step engaging the regulatory regime provided for in the Act.

34 This interpretation does not frustrate the operation of the Act in the manner contended for by the appellant because, as Blow CJ observed, there are mechanisms and methods by which a person or entity in that category can protect its prospective interest in such tenement.

35 The preconditions for transfer of a mining tenement set out in ss 94 and 95 of the Act do not affect this interpretation. The learned magistrate noted that s 93 is not picked up in s 150, and, as he said, Parliament could easily have included reference to a proposed transferee pursuant to s 93 within s 150 of the Act. It chose not to.

36 A potential transferee of a mineral tenement, it is not an applicant for a mineral tenement within the terms of s 150. The appeal must fail.

6   No 15/2021

File No 1751/2021

GADTECH MATERIALS PTY LTD v MAGISTRATES COURT OF TASMANIA

(MINING TRIBUNAL) AND GA and PA CLARKE (LANDOWNERS)

REASONS FOR JUDGMENT FULL COURT

MARTIN AJ
10 December 2021

37   I agree that the appeal should be dismissed for the reasons given by Estcourt J.

Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47].