Murphy v Ramsay

[1964] HCA 36

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Taylor and Owen JJ.

MURPHY v. RAMSAY

(1964) 111 CLR 344

18 June 1964

Mines and Minerals

Mines and Minerals—Mining leases of Crown lands (N.S.W.)—Priority of applicants simultaneously taking possession—No ballot held—Rejection by Minister of application—Land marked out not identical with land described in application—What is sufficient description—Power of Minister to consider or postpone defective application—Cancellation of lease for non-compliance with conditions as to labour—Whether complainant entitled to lease—Mining Act, 1906-1952 (N.S.W.), ss. 25, 26, 27, 124A.

Decisions

June 18.
The following written judgments were delivered:-
BARWICK C.J. This is an appeal from a judgment of the Full Court of the Supreme Court of New South Wales, disallowing an appeal from a decree which dismissed a suit in which the appellants had sought a declaration that the appellant Murphy was entitled to special leases of land the subject of applications by the respondent Mineral Deposits Pty. Limited and injunctions against all the respondents. The injunctions sought against the respondents, Ramsay and Simpson, respectively the Nominal Defendant on behalf of the Government of New South Wales and the Minister for Mines in that Government, were to restrain the Minister from recommending to the Governor in Council the grant of any special mining lease of the land in respect of which the declaration was sought, except to the appellant Murphy, or the grant of a special lease upon any one of three applications for such a lease made by the respondent Mineral Deposits either at all or before the Minister had first considered certain applications of the appellants for a special mining lease, some of which applications were for the whole of the land the subject of Mineral Deposits' applications and others of which were for part only of such land. (at p347)

2. The injunctions against Mineral Deposits were to prevent that respondent from entering into and occupying the land the subject of its applications for special leases. (at p347)

3. The facts of the matter and the precise form of the injunctions sought are fully set out in the judgments of the judge of first instance and of the Full Court and I have no need to repeat them. (at p347)

4. Before this Court the appellants based their claim to the injunctions to restrain the recommendation of the grant of a special mining lease to Mineral Deposits on any of its applications numbered 478, 479 and 482 upon what the appellants' counsel claimed were three separate bases. (at p347)

5. As I understood them these were as follows: First, that, on the footing that both the initial applications of the appellants, numbered 475 and 476, and those of Mineral Deposits numbered 478, 479 and 482 were all valid and "unobjectionable" applications and that simultaneous possession of the land to which all five applications purported to relate had been taken by each applicant, the Minister had failed to follow the procedures laid down by the Mining Act, 1906 (N.S.W.) as amended in that he had not submitted to ballot the question as to which of the applications he should first consider, and that therefore consideration and rejection of the appellants' applications before any such ballot was had were not authorized and were nugatory, resulting in the appellants' initial applications 475 and 476 remaining on foot and still capable of being the subject of a recommendation to the Governor in Council. (at p348)

6. Second, that Mineral Deposits' applications, though for the purpose of this submission regarded as valid, were "objectionable" as to all of them for want of compliance by that respondent with the regulations prescribing the mode of marking out the land and therefore, that the taking of possession of the land applied for was defective; and as to applications 479 and 482, in addition, because the description of the seaward boundary of the land in the applications as mean high and mean low water mark respectively constituted an inadequate description because in relation to the land in question mean high, but particularly mean low water mark, was not a certain but indeed a widely fluctuating line. (at p348)

7. The alleged failure to comply with the Mining Regulations as to the taking of possession was constituted by the lack of correspondence between the physical markings of the angles of the boundary of the land with those points as described by metes and bounds in the applications. Although only small distances were involved in these discrepancies and the difference between the area of land within the boundaries as marked and that as described in the applications was extremely slight, the divergences were pressed on us as critical because of the terms of the Act and the importance of precision in marking out and describing land for mining purposes. Being thus "objectionable", in their submission, the appellants contended that the consideration of these applications by the Minister should be deferred until the appellants' applications had first been considered, that is to say, until, if the appellants' first submission were accepted, after applications 475 and 476 had been considered, or, if that submission were not accepted, until at least the last of the appellants' applications, numbered 492 and 493, had been considered: and presumably until after consideration of any further valid and "unobjectionable" application. (at p349)

8. Thirdly, that Mineral Deposits' applications 478, 479 and 482 were invalid upon the same grounds as those on which the appellants said they were "objectionable" in their second submission, and that notwithstanding the terms of s. 27 of the Mining Act, they could not form the basis for a valid special lease of any part of the land to which they related. (at p349)

9. If all the elements of the appellants' first submission were made out, it would mean no more than that the appellants ought at some stage to have had the opportunity to have their applications considered in priority to those of Mineral Deposits. But without the hazard of a ballot, their applications were in fact so considered. If the Minister was entitled to consider them first, as in my opinion he was, he was entitled to recommend their rejection which in fact he did. (at p349)

10. This is sufficient to dispose of the appellants' first contention: but in so dealing with it, I must not be taken as thinking either, on the one hand, that the Minister could not be restrained from considering an application out of its turn according to the statute or, on the other hand, that his consideration of an application out of turn would render his recommendation to and the subsequent action of the Governor in Council nullities so as to leave an application which had thus been considered and been rejected still on foot and susceptible of becoming the basis of the grant of a valid lease. (at p349)

11. The appellants' second and third submissions are both founded as to all three of Mineral Deposits' applications, on the view that because the marking out of the land did not precisely correspond with the metes and bounds of the land described in the applications, the requirements of the regulations as to the taking of possession had not been complied with. But in my opinion, this is an erroneous conclusion. Mineral Deposits, as the appellants' counsel conceded, did take possession of an actual area of land and in doing so, did mark out that land in conformity with the regulations except as to the seaward boundary of the land in applications 479 and 482. But when making applications for special leases of that land, an event necessarily subsequent to the taking of possession and the marking out of the land, that respondent, in describing by metes and bounds the land of which in fact possession had been taken, failed in respects that at best were marginal accurately to describe that land. But this does not mean that they had failed to observe the regulations on taking possession of the land. The appellants argued as if the statute required an applicant to take possession of and mark out in accordance with the regulations the land described in the application: but in truth the statute requires the applicant first to have taken possession of an area of land and then to make application for a special lease of that land, describing in his application the land of which he has taken possession. It is right enough to say that the applicant applies for a special lease of the land described in his application: but that must be the land of which he has duly taken possession. The statute expressly provides in s. 27 that notwithstanding that the description in the application does not strictly conform with the land as marked out, a valid special lease may be granted on the application. Provision is thus made for variations between a description of the marked out land and the land actually marked out. The Minister may thus recommend the grant of a special lease of the land of which possession was duly taken even though the description of it in the application does not strictly conform to the markings on the ground. In my opinion the divergences between the description in the respondent's applications and the land as marked out in this case fairly fall within the terms of s. 27. The basis of the appellants' second and third submissions, so far as they relate to these divergences between marking out and description of the land therefore disappears, whether as a ground for a challenge to their validity or as a ground for loss of priority in consideration by the Minister. Mineral Deposits' three applications are not, for this reason, incapable of forming the basis of a recommendation of the grant of a special lease, nor is there any basis on which they could be deferred in Ministerial consideration to any of the appellants' applications. In thus dealing with the appellants' submission I do not accept the assumption which it made, namely that some failure to comply with the statutory requirements relating to the making of applications, which does not render them invalid in the sense I have used, may none the less render them "objectionable" and liable to postponement in Ministerial consideration. What the statute requires is a consideration of valid applications for the same land in order of the time of taking possession, which time is fixed by the time of erection of a datum post when possession is properly taken according to the regulations (s. 26). I see no room for any such course as the appellants proposed. (at p350)

12. Mineral Deposits' application numbered 482 was only attacked on the ground of the divergences between description and actual marking out of the land. Accordingly, having regard to what I have said as to those divergences, that application was both valid and "unobjectionable", to use the appellants' counsel's phrase. It is thus available to form the basis of the grant of a special lease of the land to which it relates. The appellants, at best, could only succeed on this aspect of the suit if they could show that the Minister could not recommend the grant of a special lease in respect of any of Mineral Deposits' applications. The appellants must fail if any one of these applications survives attack, as in my opinion application 482 does. (at p351)

13. In these circumstances it is unnecessary to consider the additional attack made by the appellants on Mineral Deposits' applications 479 and 482, because of the use of the boundary described respectively as mean high water and mean low water mark and of the failure to mark out such a line on the ground. I express no opinion as to the adequacy of such a description for the purposes of an application for a special mining lease or as to the sufficiency of the possession said to have been taken of the land the subject of those applications, or as to whether sub-reg. (1) of reg. 6 excuses the applicant from marking out a boundary described as being at mean low or high water mark. (at p351)

14. The appellants sought to base their claim to a declaration and to an injunction to restrain the grant of a special mining lease of the land the subject of appellants' applications 475 and 476 to any other person than the appellants, upon the construction of s. 124A of the Mining Act which they had proposed to the Supreme Court. I am content in respect of this submission of the appellants to adopt the reasons expressed both by the judge of first instance and by the Full Court for deciding that the appellant Murphy had not become entitled to a grant of a special lease of this land and that no such declaration should be made. (at p351)

15. For these reasons I am of opinion that the appeal should be dismissed with costs. (at p351)

McTIERNAN J. I agree with the judgment of the Chief Justice. (at p351)

KITTO J. I agree in the judgment of the Chief Justice and have nothing to add. (at p351)

TAYLOR J. I agree that this appeal should be dismissed for the reasons given by the Chief Justice and I wish to add only a brief observation with respect to the appellants' argument that the lastnamed respondent's three applications were "objectionable" or invalid because of alleged non-compliance with s. 26 (1) of the Mining Act, 1906-1952 and the provisions of the regulations as to the mode of taking possession. It was on these grounds that it was contended that the applications were not entitled to any priority of consideration or, alternatively, that they should have been rejected entirely. However it is clear from a perusal of s. 27 (1) that none of the matters relied upon could preclude the grant of a lease upon application No. 482 and I am unable to see how an application which may properly lead to a grant can be characterized either as "objectionable" or invalid. I also agree that it is, in the circumstances, unnecessary to consider the additional objections, based upon alleged defective descriptions, which were raised to the other two applications. (at p352)

OWEN J. For the reasons given by the Chief Justice I agree that the appeal should be dismissed. (at p352)

Orders

Appeal dismissed with costs.