Gadtech Materials Pty Ltd v Magistrates Court of Tasmania - [2021] TASSC 29

[2021] TASSC 29

COURT: SUPREME COURT OF TASMANIA

CITATION: Gadtech Materials Pty Ltd v Magistrates Court of Tasmania

[2021] TASSC 29

PARTIES  GADTECH MATERIALS PTY LTD
  v
  MAGISTRATES COURT OF TASMANIA

(MINING TRIBUNAL)

FILE NO:  861/2021
DELIVERED ON:  30 June 2021
DELIVERED AT:  Hobart
HEARING DATE:  30 June 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Energy and Resources – Minerals – Courts or tribunals exercising jurisdiction in mining matters – Tasmania – Mining Tribunal – Application for determination of compensation payable to landowner – Standing of applicant – Proposed transferee of mining lease – Not "an applicant for a mineral tenement".
Mineral Resources Development Act 1995 (Tas), s 150(1).
Aust Dig Energy and Resources [1125]

REPRESENTATION:

Counsel:
           Applicant:  D F M Zeeman
           G A Clarke, P M Clarke:           B R McTaggart SC
Solicitors:
           Applicant:  Butler McIntyre & Butler
           G A Clarke, P M Clarke:           McGrath & Co

Judgment Number: [2021] TASSC 29
Number of paragraphs: 23

Serial No 29/2021
File No 861/2021

GADTECH MATERIALS PTY LTD
v MAGISTRATES COURT OF TASMANIA (MINING TRIBUNAL)

REASONS FOR DECISION BLOW CJ

(Edited version of reasons delivered orally) 30 June 2021

This is an application for an extension of time under s 23(1)(b) of the Judicial Review Act 2000. The applicant, Gadtech Materials Pty Ltd, is aggrieved by a decision of a magistrate, Mr D Fairley. The magistrate was sitting in the Mining Tribunal jurisdiction of the Magistrates Court of Tasmania. The proceedings before him related to a quarry. The quarry was on land owned by a couple named Clarke ("the landowners"). They were represented by senior counsel at the hearing before the magistrate, and in the proceedings before me today.
In the beginning a company named Bis Industries Ltd became the lessee under a mining lease relating to the quarry site pursuant to the Mineral Resources Development Act 1995 ("the Act"). Under s 144(1) of the Act, compensation is payable by the holder of a mining lease to the owner of private land. The subsection reads as follows:
"(1) Compensation is payable by the licensee or lessee to the owner or occupier of private land or a holder of a forestry right for any compensable loss suffered or likely to be suffered as a consequence of exploration or mining under the licence or lease."
On 29 August 2007, Bis entered into a compensation agreement with the landowners pursuant to s 145 of the Act. The mining lease provided that it was for a term which was to expire on 1 November 2017. The compensation agreement apparently also provided that it would expire on 1 November 2017.
In August 2017, Bis apparently proposed to the landowners that it would extend the area in which it was carrying out quarrying operations. As I understand it, it was not proposed to extend the area covered by the mining lease, but to operate more widely within that area. Bis also proposed that it would extend or renew the mining lease.
On 11 September 2017, Bis sold its business to the applicant, and an application was made for the approval of a transfer of the mining lease by Bis to Gadtech.
Under s 93 of the Act, a lessee may apply to the Minister for approval to transfer a mining lease. Then the Director of Mines is required by s 94 to consider the application. Finally, under s 95(1), the Minister has a discretion to approve the application, or to refuse to approve the application, or to refuse to approve it until specified conditions are satisfied. The application for approval of the transfer of the lease is still pending. The Minister has not yet made a decision under s 95.
Under s 96(1) of the Act, Bis had the right to apply to the Minister for the renewal of the mining lease, not more than three months before it ceased to be in force, and not later than one month after it ceased to be in force. I do not have any evidence as to whether any such application was made, but I assume that one was, because otherwise I do not think we would be here. When such an application is made, s 98(3)(a) provides that the lease continues in force until such time as the renewal application is granted, refused or withdrawn. I am assuming that an application was made and has not been granted, refused or withdrawn, and that the lease remains in force.
Following the expiry of the compensation agreement on 1 November 2017, there was no longer a compensation agreement in force. It was against that background that Gadtech made an application to the Mining Tribunal for a determination as to the rate of compensation under s 150 of the Act. Section 150(1) provides as follows:
"(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."
Counsel for the landowners submitted to the learned magistrate that Gadtech was not a person or an entity with standing to make an application under s 150(1). Gadtech contended that it was "an applicant for a mineral tenement" within the meaning of the subsection. The learned magistrate held that it was not. That is the decision that Gadtech seeks to challenge in the judicial review proceedings. That decision was made by the magistrate on 11 December 2020.
Gadtech purported to appeal from that decision. However, under s 140(1) of the Act, an appeal may only be instituted against an "order" of the Mining Tribunal. There was doubt as to whether the ruling by the magistrate constituted an order. He was subsequently asked to dismiss the purported s 150 application, but declined because an appeal had been instituted.
In case the appeal was incompetent, Gadtech filed an originating application under the Judicial Review Act on 19 February 2021. It was out of time. Under s 23(1)(a) of that Act, it should have been filed within 28 days after the magistrate's decision. When that originating application was filed, Gadtech also filed an interlocutory application seeking an extension of time under s 23(1)(b). However there was doubt as to whether that was the correct procedure. As a result of that doubt, Gadtech filed an originating application seeking an extension of time. That is the application that is now before me. It was filed on 16 April 2021.
For the purposes of this decision, I will assume, without deciding the point, that the decision made by the learned magistrate on 11 December 2020 was a "decision of an administrative character", and that the Judicial Review Act therefore applies.
Despite the history of this messy litigation, I am inclined to think that there is a sufficiently reasonable explanation for Gadtech's delay in making the application that is now before me, and that there would be no significant prejudice to the landowners if the extension of time were granted. But I have come to the conclusion that the application for judicial review has no merit because the learned magistrate was correct in his conclusion that Gadtech had no standing.
The status of Gadtech was of a proposed transferee that was the subject of an application for a transfer of the mining lease, made pursuant to s 93(1) of the Act. The question for the learned magistrate was whether an entity with that status constituted "an applicant for a mineral tenement" for the purposes of s 150(1).
In s 3 of the Act "mineral tenement" is defined to mean, "a licence or lease other than a prospecting licence or a group prospecting licence". There are numerous provisions in the Act authorising applications to be made for various types of mineral tenements:
·    An application can be made for an exploration licence under s 11.
· An application can be made for a special exploration licence under s 38.
·    An application can be made for a retention licence under s 47.
·    An application can be made for a production licence under s 67A.
·    An application can be made for a mining lease under s 70.
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. A proposed transferee may have a significant interest in the outcome of negotiations for a compensation agreement, or of an application for the assessment of compensation under s 150. But it is not the proposed transferee that has the obligation to pay the compensation until such time as the transfer has been approved and completed.
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. One could easily envisage an arrangement whereby the transferor would agree, as a condition of a sale agreement, to authorise the transferee as its agent to negotiate compensation or apply for the assessment of compensation. But there is no indication that that was done in this case.
Counsel for Gadtech submitted to me that the interpretation of s 150 adopted by the learned magistrate was inconsistent with the purpose and objects of the Act. He referred me to the long title of the Act, which 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".
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.
Counsel for Gadtech also referred me to s 84(1)(c) of the Act. That provision reads as follows:
"(1) A lease authorises the lessee, and a person acting under a contract of service, or a contract for services, with the holder of the lease –
...
(c) to, in accordance with the conditions of the lease, enter on, or carry out mining operations on, private land within the mining lease if a compensation agreement is in force in respect of that land or the Mining Tribunal has made a determination under section 150."
Clearly, as a result of that provision, mining operations are not permitted on the land within a mining lease when compensation has neither been agreed nor assessed under s 150. It therefore makes good economic sense for an applicant for a new mineral tenement to have standing to seek a determination of the rate of compensation that will be payable, in anticipation of the application being granted.
The situation at the moment, incidentally, is not one where compensation has neither been agreed nor assessed under s 150. I was informed that another magistrate made an order preserving the old compensation arrangements until further order. But I am not concerned with that at the moment, I am concerned with statutory interpretation. There is nothing about s 84(1)(c) that strengthens the argument that a proposed transferee constitutes "an applicant for a mineral tenement". If a proposed transferee does not have a compensation agreement or a s 150 determination in force, then it is in the interests of the proposed transferee to do whatever is necessary to get the holder of the mining lease to negotiate a new agreement, or make a s 150 application.
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 Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47].
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.