MLG Oz Ltd v Warden B Ayling [No 2]
[2021] WASC 28
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MLG OZ LTD -v- WARDEN B AYLING [No 2] [2021] WASC 28
CORAM: ALLANSON J
HEARD: 5 OCTOBER 2020
DELIVERED : 12 FEBRUARY 2021
FILE NO/S: CIV 1697 of 2020
BETWEEN: MLG OZ LTD
Applicant
AND
WARDEN B AYLING
Respondent
GFSG PTY LTD ATF THE BELLIN BROWN FAMILY TRUST
Other Party
Catchwords:
Mining - Judicial review of decision to grant miscellaneous licence - Where miscellaneous licence granted over land subject to an existing miscellaneous licence - Where mining warden found no injurious affection to existing tenement - Where that finding not challenged - Whether grant of new tenement outside jurisdiction
Legislation:
Mining Act 1978 (WA), s 91, s 117
Result:
Dismissed
Category: B
Representation:
Counsel:
| Applicant | : | D Chandler |
| Respondent | : | No appearance |
| Other Party | : | C Mckenzie |
Solicitors:
| Applicant | : | Kavenagh Legal |
| Respondent | : | No appearance |
| Other Party | : | McKenzie & McKenzie |
Case(s) referred to in decision(s):
Day & Dent Constructions Pty Ltd (In Liquidation) v North Australian Properties Pty Ltd (Provisional Liquidator Appointed) [1982] HCA 20; (1982) 150 CLR 85
Re Roberts; Ex parte Western Reefs Ltd v Eastern Goldfields Mining Co Pty Ltd (1990) 1 WAR 546
TEC Desert Pty Ltd v Commissioner of State Revenue (WA) [2010] HCA 49; (2010) 241 CLR 576
ALLANSON J:
Introduction
On 28 May 2020, the Mining Warden, Coolgardie Mineral Field, granted Miscellaneous Licence 15/383 under the Mining Act 1978 (WA) to GFSG Pty Ltd for the purpose of a road. The miscellaneous licence covers land which is the subject of an existing miscellaneous licence held by MLG Oz Limited.
MLG objected to the application by GFSG.
On 22 June 2020, MLG commenced proceeding for judicial review of the warden's decision. GFSG appeared as the other party, pursuant to O 56 of the Rules of the Supreme Court 1971 (WA), to oppose the application. The respondent (Warden) abides the decision of the court.
The application was originally brought on a single ground:
The respondent made a jurisdictional error in determining to grant Miscellaneous Licence 15/383 (L15/383) to the other party (GFSG) subject to standard conditions because this injuriously affects Miscellaneous Licence 15/111 (L15/111) held by the applicant.
On 27 August 2020, the applicant filed an minute of proposed amended grounds, including a second ground:
The respondent made a jurisdictional error in determining to grant L15/383 to GFSG in circumstances of the respondent finding GFSG and the applicant had not been able to agree on the concurrent use and maintenance of the road the subject of L15/111, and the respondent's belief, expectation or hope that following grant of L15/383 the parties would reach agreement on the concurrent use and maintenance of the subject road.
The court has express power to amend, under O 56 r 5(h). Notice of the proposed amendment was given well in advance of the hearing. GFSG initially opposed the amendment but did not maintain that position at the hearing. The amendment raises a question of law arising out of the same material that was before the court on the existing ground. I permit the amendment.
The evidence in the application
MLG applied for an interlocutory injunction pending the hearing of the application. Affidavits filed in that application were relied on in the hearing. MLG relied on the following affidavits:
(1)Timothy Joseph Kavanagh, sworn 22 June 2020, and 14 July 2020;
(2)Dean Andrew Delaney, sworn 14 July 2020;
(3)Murray Ian Leahy, sworn 14 July 2020;
(4)Kurt Marc Laatz, sworn 14 July 2020.
GFSG relied on the following affidavits:
(1)Alison Brown, sworn 14 August 2020;
(2)Nigel Keith Bellin, sworn 14 August 2020;
(3)Carmel Anne McKenzie, sworn 15 September 2020.
Background
The following matters were not in dispute.
MLG holds L15/111 under the Mining Act for the purpose of a road. The road connects the Coolgardie North Road with the Jaurdi Hills Road. The Coolgardie North Road and Jaurdi Hills Road are public roads. MLG uses the road on L15/111 to transport sand and gravel.
The road is unsealed and is approximately 14 km in length. MLG is required to maintain the road as a condition of L15/111.
The road was built for Western Mining Corporation which in 2006 re‑registered the licence in the name of BHP Billiton Nickel West Pty Ltd. MLG purchased the licence (and a lease) from BHP Billiton in 2015, and the transfer was registered in 2016.
The holder of the pastoral lease underlying L15/111 retains rights in relation to the land.
L15/111 is subject to conditions, which include:
4.The road be constructed using proper materials to suit the purpose for which it is being constructed, namely heavy haulage of ore, and further that it be constructed in a workman like manner and further that it be constructed to the satisfaction of the Mining Engineer ‑ District Inspector for Minds (the inspector).
5.The holder shall maintain the road from time to time as shall be required to ensure that it is safe for the purpose that it is constructed.
6.At each end of the road the subject of this license a sign to be erected such sign to be in a conspicuous position and readily noticeable to persons about to move onto the road and to carry words conveying to any such person that the road is a road relating to mining operation of the holder and that it is designed for and used for the purpose of carrying heavy haulage vehicles in connection with a mining operation.
MLG is required to pay rent on the licence.
GFSG holds Mining Lease 15/1339.
On 27 February 2018, GFSG lodged an application for Miscellaneous Licence L15/383 for the purpose of a road, for the purpose of ingress to and egress from Mining Lease 15/1339, and as a haul road to haul sand and gravel from the mining lease to the Coolgardie North Road. The land which is the subject of L15/383 is within L15/111.
On 8 March 2018, MLG lodged an objection to the application for L15/383. The grounds of the objection included that the grant would injuriously affect MLG's rights and entitlements with respect to activities on its existing tenement, and current operations may be hindered without an appropriate access deed: Warden's Decision [5].
The application and objection were heard by the Mining Warden in Kalgoorlie on 25 June 2019. The warden delivered her decision on 28 May 2020.
Relevant legislation
A miscellaneous licence is granted under pt IV, div 5 of the Mining Act. It may be granted 'for any one or more of the purposes prescribed', and, authorises the holder to 'do such matters and things as are specified in the licence': Mining Act s 91(1) and s 91(3). The purposes prescribed include a road: Mining Regulations 1981 (WA) reg 42B(a).
A miscellaneous licence is subject to a prescribed condition that the holder shall continuously use the licence for the purposes for which it was granted: Mining Regulations reg 41(b).
A miscellaneous licence may be granted in respect of land that is the subject of another mining tenement. If a miscellaneous licence is granted in respect of land that is subject to another mining tenement the miscellaneous licence and the other mining tenement apply concurrently with respect to that land: Mining Act s 91(7)(8). Similarly, if another mining tenement is granted in respect of land that is subject to a miscellaneous licence the other mining tenement and the miscellaneous licence apply concurrently with respect to that land: Mining Act s 94A.
A miscellaneous licence granted after the commencement of the Mining Amendment Act 1998 remains in force for 21 years from the date on which it was granted, and may be renewed: Mining Act s 91A.
By s 117 of the Act:
(1)Subject to the provisions of sections 56A, 70 and 85B as regards the special prospecting licences and mining leases therein referred to, no Crown grant, transfer of Crown land in fee simple, or conveyance nor the grant of any mining tenement has the effect of revoking or injuriously affecting any existing mining tenement acquired and held under this or the repealed Act, whether or not any reservation or exception of that existing mining tenement is contained in the Crown grant, transfer of Crown land in fee simple, or conveyance or the grant of the mining tenement.
(2)Each such Crown grant, transfer of Crown land in fee simple, or conveyance and each such grant of a mining tenement shall be deemed to contain an express reservation of the rights to which the holder of the existing mining tenement is entitled.
Authorities
The operation of s 91 and s 117 together was considered by the Full Court in Re Roberts; Ex parte Western Reefs Ltd v Eastern Goldfields Mining Co Pty Ltd (1990) 1 WAR 546, where an application was made for a miscellaneous licence over an existing mining lease. Malcolm CJ said:
… s 91 is not an exception to the protection provision in s 117. A miscellaneous licence under s 91 is a 'mining tenement' as defined in s 8 of the Act. It follows that where an application is made for a miscellaneous licence over land which is the subject of an existing mining tenement, there is an implied prohibition on the grant of the miscellaneous licence having the effect of 'revoking or injuriously affecting any existing tenement'. The effect of s 117 is that any grant of a miscellaneous licence is deemed to contain a reservation that it shall not have the effect of revoking or injuriously affecting any existing mining tenement. Hence, the grant of any miscellaneous licence which in fact injuriously affected an existing tenement would be nugatory. Therefore, before granting a miscellaneous licence over an existing tenement, the warden would need to be satisfied not only that the application conformed to the requirements contained or referred to in ss 91 and 92 of the Act, but also that the grant would not injuriously affect any existing tenement (551 - 552).
Brinsden J addressed the power of the warden to impose conditions on the grant and said:
Of course, it may be said, the warden, by reason of his power to impose conditions, can minimise or eliminate the degree of disturbance to the operations being carried on, or likely to be carried on, on a primary tenement, but it is not by any means difficult to conceive a case where a condition could not be framed to satisfactorily separate the rights of a miscellaneous licence holder and the rights of the holder of the primary tenement. Where complete incompatibility exists between these two tenements there would be no point in granting the miscellaneous licence since the provisions of s 117 would make the grant a futility. This section therefore, seems to direct the warden's attention in deciding upon an application for a miscellaneous licence, to consider the degree to which, if at all, the exercise of the rights pursuant to the miscellaneous licence would be detrimental to, or incompatible with, the rights of the holder of the primary tenement.
I am therefore of the view that upon an application for a miscellaneous licence, the warden is entitled to consider whether the purpose for which the licence is required, can be carried out without injuriously affecting the primary tenement over which the miscellaneous licence is to be granted. It may be that he can frame conditions which satisfactorily resolve any likely interference or incompatibility, but, if no condition will meet that requirement then he would be entitled to dismiss the application. In reaching such a decision the warden would be entitled to take into account the current and prospective operations upon the primary tenement. The overriding consideration would be whether the grant of the miscellaneous licence would, or would not, promote the objects of the Act, the encouragement of mining (560).
The third member of the Court, Ipp J, agreed and added that the onus would be on the applicant for a miscellaneous licence to satisfy the warden that the grant and the exercise of rights under the licence would not injuriously affect, obstruct, or hinder the existing tenement holder.
The decision of the Warden
The warden's decision was before the court as attachment TK 1 to the affidavit of Mr Kavanagh, sworn 22 June 2020.
The warden stated that the power to grant a miscellaneous licence was subject to the provisions of the Act, and continued (citing Re Roberts):
If a proposed miscellaneous licence would have the effect of revoking or injuriously affecting an existing mining tenement held, then it should not be granted.
An underlying tenement holder usually lodges an objection to the grant of a miscellaneous licence on this basis. A Warden hearing such an objection is bound to consider whether the grant would injuriously affect the existing tenement holder, or hinder or obstruct the holder in the execution of any rights conferred. Where no reasonable condition can prevent such an outcome, the Warden should refuse the application. The Warden must consider what is already known about the length of the existing tenement and its current or proposed mining operations, and then weight up whether the new application will have the effect of causing such detriment, harm or obstruction to the original tenement holder that the exercise of those rights would be unfairly compromised ([9] - [10]). (emphasis added)
The warden identified a primary issue as whether the grant of L15/383 will have the effect of revoking or injuriously affecting L15/111 or, by extension the mining lease (M15/125) held by MLG [39], and that GFSG, as the applicant for a licence, bore the onus of satisfying the warden that grant of its application would not injuriously affect the underlying tenement holder [42].
The warden found:
(1)even were MLG to use 16 truckloads daily on the road (a number she found exaggerated), and the GFSG obtained a tender to use up to 10 truckloads daily, there was no evidence that MLG would suffer actual or potential detriment;
(2)any interference between both parties using the road was limited to a 6 km stretch which was mitigated by the width of the road and the ability of the parties to communicate movement [65];
(3)there is no difficulty in trucks passing each other safely on the road; and
(4)while trucks would need to take care on a particular bend, safety could be assured by communication between drivers and the exchange of schedules.
The warden further found that GFSG had sufficient expertise to employ a suitable road maintenance regime for that part of the road on which its trucks were travelling [67].
The warden thus found (at [59]) that the two companies were able to use the Sand Haul Road without MLG being injuriously affected in the conduct of its business. Although referring to the conduct of the business, the warden, from the statement of the test in the next paragraph, was aware that the question was one of actual or potential harm or detriment to the rights of the holder of the underlying tenement. (at [60]). Her Honour found MLG was 'considerably engaged' in the transport of sand and gravel along the road, but found 'that there is no evidence before me that [MLG] will suffer actual or potential detriment if [GFSG] was also granted a licence to use the road' [64].
The warden then identified the disputed issue of who would bear responsibility for maintenance and safety. She observed that it was within the parties' reach to achieve a mutually acceptable commercial solution to a fair distribution of the cost of road maintenance [70].
In her conclusion, the warden said:
For the purposes of this application, [MLG] does not appear to be at risk of suffering actual or potential detriment in the future exercise of its rights by the presence of [GFSB] on the Sand Haul Road.
I am therefore persuaded that [MLG] would not be injuriously affected by the grant of this application, and so I propose to dismiss the Objection … and recommend L 15/383 for grant subject to:
(a)The standard conditions;
(b)The application complying with the Native Title Act; and
(c)The land the subject of the grant being limited to the land east of the entrance to M 15/1339 [70] - [71].
The warden subsequently corrected the reference to a recommendation, recognising that her function was to make the grant rather than make a recommendation to the Minister.
MLG wrote to the warden to inquire whether she would give the parties the opportunity to make further submissions in relation to the conditions to be imposed and the precise boundaries of the miscellaneous licence. The warden offered the parties the opportunity to be heard, but limited to the correction to her decision or any ancillary issue.
A miscellaneous licence and standard conditions
A miscellaneous licence is a tenement under the Mining Act. Mining tenements are defined as including the specified land in respect of which the tenement is granted or acquired: s 8. But a mining tenement is not an estate or interest in the land the subject of the tenement: TEC Desert Pty Ltd v Commissioner of State Revenue (WA) [2010] HCA 49; (2010) 241 CLR 576 [27].
A miscellaneous licence is granted subject to conditions. The standard conditions to which the warden referred were not in evidence. The written submissions of GFSG identified four conditions (which were not in dispute), including:
Condition 14
The rights of ingress to and egress from Miscellaneous Licence L15/111 being at all times preserved to the licensee and no interference with the purpose or installations connected to the licence.
Condition 308
The road to be constructed using proper materials to suit the purpose for which it is being constructed, and further that it be constructed in a workman like manner and further that it be constructed to the satisfaction of the environmental officer DMIRS.
Condition 309
The licensee shall maintain the road from time to time and shall be required to ensure that it is safe for the purpose that it is constructed.
Consideration
MLG did not seek to challenge the warden's factual finding that the two companies were able to use the Sand Haul Road without actual or potential harm or detriment to the rights of the holder of the underlying tenement. But it contended that the grant subject to 'standard conditions' injuriously affects the legal rights and interests attached to MLG's miscellaneous licence.
MLG relied on its undeniable right to use the land as a road and its obligations with respect to the miscellaneous licence:
(1)to pay the annual rent;
(2)to continuously use the land as road;
(3)to maintain the road infrastructure;
(4)to rehabilitate the land at the completion of operations.
MLG submitted that the conditions on the grant of its licence go to its control or management of the road, and the expectation that it will be able to control or manage the road to satisfy the conditions of the grant. It submitted that the conditions form part of the authorisation, and carry with them an implied power to do what is required to satisfy the conditions.
MLG further submitted that the protection given by s 117 of the right to control or manage the road should be given the widest possible scope. In that submission, counsel for MLG referred to Mason J's comments in Day & Dent Constructions Pty Ltd (In Liquidation) v North Australian Properties Pty Ltd (Provisional Liquidator Appointed) [1982] HCA 20; (1982) 150 CLR 85, where the court was concerned with the protection given by s 86 of the Bankruptcy Act 1966 (Cth) to those who engage in mutual dealings with a person declared bankrupt. Counsel referred also to the principle of legality: that the courts will not, in the absence of clear statutory words, impute to the legislature an intention to abrogate fundamental common law rights. Argument by analogy from the construction of other, unrelated, legislation should not be stretched beyond reasonable limits. On this occasion, I found it unhelpful.
The substance of MLG's argument is that, by s 117, a miscellaneous licence under s 91 to 'do such matters and things as are specified in the licence', carries with it an implied power of control or management of the land. That is not what s 91 provides, and it is not a permissible construction of the terms of s 117.
Further, there may be some things authorised by a miscellaneous licence which are inconsistent with another use of the same land. But the warden having made an unchallenged finding that MLG would not be injuriously affected in use of the land as a haul road under the existing tenement, it is not open to MLG to now argue jurisdictional error in the failure to find that it is injuriously affected in its implied powers of control or management.
Ground 2 proceeds on the premise that the grant of L15/383 injuriously affects MLG's tenement. MLG submitted that the warden erred in law by imposing the standard conditions on the grant of L15/383 and by failing to consider what conditions, if any, could be imposed to cover the injurious effect on L15/111.
The finding of the warden that there is no injurious affection was not challenged. Once that finding is accepted, her comments that the parties could co-exist amicably and reach a mutually acceptable commercial solution to fair distribution of cost do not qualify that finding or disclose an error going to jurisdiction.
I am not satisfied that MLG has demonstrated the error alleged.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
12 FEBRUARY 2021
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