Kralcopic v Minster for Resources (No 2)

[2021] VSC 258

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04967

KRALCOPIC PTY LTD (ACN 007 222 086) (in liquidation)	Plaintiff
v
MINISTER FOR RESOURCES	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2021
DATE OF JUDGMENT:	13 May 2021
CASE MAY BE CITED AS:	Kralcopic v Minster for Resources (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 258

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JUDICIAL REVIEW – Mining licences – Unsuccessful challenge to decision of Minister to refuse renewals of licences – Minister seeking declaration that  plant remaining  on former licensed land became property of the Crown – Licence holder placed into liquidation – Leave to proceed granted – Declaration  made – Mineral Resources (Sustainable Development) Act 1990 s 114.

CORPORATIONS – Liquidation – Judgment delivered but orders not yet made – Supreme Court’s jurisdiction when Federal Court made winding up order – Discretion to grant leave to proceed – Leave granted – Corporations Act 2001 (Cth) s 471B.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms B Robinson	Gilbert + Tobin
For the Defendant	Mr J Bayly	Minter Ellison

HIS HONOUR:

1. In the judgment of 9 March 2021,[1] I dismissed the plaintiff’s judicial review challenge to the Minister’s refusal, made by her delegate, to renew the plaintiff’s mining licences at Bendigo. I left for further submissions whether in those circumstances s 114 of the Mineral and Resources (Sustainable Development) Act 1990 applied so that any plant remaining on the land to which the licences had applied became the absolute property of the Crown at the end of six months after the licences ceased to apply to the land. 

   [1][2021] VSC 101.

1. Subsequently, I received written submissions about that matter.  But on 23 April 2021 the plaintiff, Kralcopic Pty Ltd, was placed into liquidation by a winding up order made by Judicial Registrar Allaway in the Federal Court  and Brendan John Richards and Peter Damien McCluskey were appointed liquidators.

1. The Minister seeks a declaration that the plant left on the land to which the licences applied was forfeited to the Crown from 16 August 2020, which was six months after the refusal to renew the licences. That order appears to be appropriate to give effect to the Court’s decision.

1. The liquidator does not oppose the orders sought by the Minister.

1. Although the winding up order was made by the Federal Court, this Court has power to grant leave to proceed under s 471B of the Corporations Act 2001 (Cth) as it is a Court defined in s 58AA of that Act.[2] That section confers a discretion which should be restricted ‘by stating grounds for its exercise’.[3]

   [2]Sihota v Pacific Sands Motel Pty Ltd (2003) 56 NSWLR 721, 725 (Austin J).

   [3]Speiser v Locums Financial Management Pty Ltd (1996) 22 ACSR 478, 482 (Bryson J).

1. I consider that leave is necessary because the orders that the Minister seeks are substantive orders. I also consider that the Court should, in the exercise of discretion conferred by s 471B, grant the Minister leave to proceed. The litigation is substantially completed and orders should be made to give effect to the reasons for judgment and also to give effect to s 114 of the Mineral Resources (Sustainable Development) Act 1990.

1. I will therefore make the following declaration orders:

1.The Court declares that at midnight on 16 February 2020 any plant, within the meaning of s 114 (1) of the Mineral Resources (Sustainable Development) Act 1990 on land to which mining licenses MIN4878, 5344 and 5364 formerly applied, became the absolute property of the Crown in right of the State of Victoria in accordance with the said s 114(1).

2.The proceeding is otherwise dismissed.

3.The plaintiff pay the defendant’s costs, including reserved costs, to be taxed in default of agreement.