Kayuga Coal Pty Ltd v Ducey

CITATION:	Kayuga Coal Pty Limited v John Earl Ducey & 4 Ors [2000] NSWCA 54 revised - 1/05/2000
FILE NUMBER(S):	CA 40640/99
HEARING DATE(S):	23 February 2000
JUDGMENT DATE:	19 April 2000
PARTIES :	Appellant: Kayuga Coal Pty Limited 1st Respondent:John Earl & Maysie Sarah Ducey 2nd Respondent: Gavin Michael & Adrienne May Casey 3rd Respondent: Chief Mining Warden
JUDGMENT OF:	Priestley JA at 1; Meagher JA at 4; Powell JA at 23

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	AL:30097/98
LOWER COURT JUDICIAL OFFICER :	Master Harrison

COUNSEL:	Appellant: Mr AJ Meagher SC / MJ Leeming Respondent: Mr JE Robson / T Faulkner
SOLICITORS:	Appellant: Fitzgerald White Talbot (Mussellbrook) Respondent: (1&2) Hallet & Assoc (Mussellbrook) Respondent: (3) IV Knight Crown Solicitor
CATCHWORDS:	Administrative law - Mining lease - Statutory prohibition against granting of leases - Statutory interpretation - Mining Act 1992 (NSW)
LEGISLATION CITED:	Mining Act 1992 (NSW)
DECISION:	Appeal dismissed with costs.

KAYUGA COAL PTY LIMITED V DUCEY & ORS

ADMINISTRATIVE LAW-MINING LEASE-STATUTORY PROHIBITION AGAINST GRANTING OF LEASES-STATUTORY INTERPRETATION-MINING ACT 1992 (NSW)

Facts: Kayuga Coal Pty Limited (“Kayuga”) applied for mining leases over two portions of land. Both applications were objected to. Kayuga disputed the rejection. They sought an inquiry and report from the Chief Mining Warden pursuant to s62(6) of the Mining Act 1992 and 23B of the Schedule
The Warden found the objections were justified. Both parcels of land contained “improvements”, or certain features peculiar to agricultural land, which were specified in S62(1)(c ) Mining Act.
Kayuga sought judicial review of this finding. They argued the features were not
“improvements” for the purposes of S62 of the act. The Master found in favour of the respondents.
The appellants appealed against this decision. They submitted the Master erred in her finding that the relevant section gave the Warden a discretion to include as “improvements”, items not on the list. This was in particular reference to fences, which, the appellants submitted fell outside the requirements of the section, and so could not be considered “improvements”.

Held per Meagher JA, Priestley JA and Powell JA agreeing:
The appellants have revealed an error in the reasoning of both the Warden and the Master. There exists no statutory warrant for the Warden to include items within the section based on a discretion. However they have not demonstrated any error in the finding that fences fall within the statutory definition of “improvement”.

ORDERS

1. Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40640/99

PRIESTLY JA
MEAGHER JA
POWELL JA

19 APRIL 2000

KAYUGA COAL v DUCEY & ORS

JUDGMENT

1 PRIESTLEY JA: I have had the benefit of reading in draft the reasons to be delivered by Meagher JA in this appeal. He identifies two questions of construction of s 62(1)(c) of the Mining Act 1992. One question raises the application of “substantial” in par (c); the other, the application of “other”. 2   I…