Neumann Dredging Company Ltd v Collector of Customs

LIMITED DISTRIBUTION

CATCHWORDS

Meaning of "mining for minerals" i n

t h e

d e f i n l t l o n

" m i n i n g

o p e r a t i o n s "

i n

s . 1 6 4 ( 7 )

o f

t h e

Customs A c t 1901

E f f e c t of

t h e

a d d i t i o n t o t h e

d e f i n i t i o n :

" b u t

d o e s

n o t

i n c l u d e

q u a r r y i n g

o p e r a t i o n s

. .." -

S a n d

r e d g l n g

for

b u l l d l n g m a t e r i a l s

n o t

" m i n i n g

f o r m i n e r a l s "

a n d

n o t

w i t h i n

" m i n i n g o p e r a t i o n s " .

E x c i s e

A c t

1 9 0 1 ,

S.78A

Customs

A c t

1 9 0 1 ,

s . 1 6 4

N E U M A N N

D R E D G I N G

CO.

LTD.

t r a d i n g a s N E U M A N N

CONTRACTORS

-V-

COLLECTOR OF CUSTOMS (QUEENSLAND)

QLD G.147 of 1986

N o r t h r o p ,	S p e n d e r	&	B u r c h e t t	JJ.
Brisbane

A p r i l

1 9 8 7

I N THE	F DERAL	COURT	OF	AUSTRALIA	)
I

Q U E E N S L A N D	D I S T R I C T	R E G I S T R Y	)	No.	G.147	of	1986
1

D I V I S I O N	G E N E R A L	)
BETWEEN :

NEUMANN DREDGING

CO.

LTD.	t r a d i n g a s

NEUMANN CONTRACTORS

A p p e l l a n t

AND :

COLLECTOR OF CUSTOMS

(QUEENSLAND)

R e s p o n d e n t

MINUTE

ORDER

THE

COURT

Judges Making

O r d e r :

Northrop,

Spender and B u r c h e t t JJ .

Where

O r d e r Made:

B r i s b a n e

D a t e of O r d e r :

A p r i l 1987

THE

COURT

ORDERS

THAT:

The appeal be dismissed w i t h costs.

NOTE :

S e t t l e m e n t and e n t r y of

orders is d e a l t w i t h I n O r d e r 36

t h e Federal C o u r t

R u l e s .

IN THE FEDERAL COURT OF AUSTRALIA

1 1

QUEENSLAND	DISTRICT	REGISTRY	)	No. G.147 of 1986
)

DIVISION	GENERAL	)
BETWEEN:

NEUMANN DREDGING CO.

LTD. trading as

NEUMANN CONTRACTORS

Appellant

AND :

COLLECTOR OF CUSTOMS

(QUEENSLAND)

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

NORTHROP J.

I would ask Mr. Justice Burchett to express

his oplnlon,

please?

BURCH ETT

J .

This is an appeal from the Administrative

Appeals

Tribunal, in which the question of law raised concerns the true construction of the definition of "mining operations" in s.164 of the Customs Act 1901 as applied in s.78A of the Excise Act 1901, which provides in certain circumstances €or a rebate in respect of diesel fuel purchased for use in (inter alia) rninlng operations. The appellant's activities, out of which It4

applicatlon to

the

Adrnlnistratlve Appeals

Tribunal

arose,

lnvolved dredglng sand, together wlth other marlne nstprlals, and

pumping it ashore, where material

not usable was separated out

and the usable material was stockpiled for later building activities of the nature of land reclamation and retalning wall construction. These activities were summarised by the Tribunal as follows:

"The operations of the applicant

were

designed to provide to its co-contractors relatively clean overburden (which coincidentally contained mineral matter) for uses such as are recorded earlier. The

applicant was not mining for minerals, the Tribunal finds, but dredging for 'homogeneous fill' (an expression used by Mr. Barr in his evidence). That this homogeneous fill may well have contained minerals, is beside the point in our view."

The material

parts

of the

deflnition

of "mrning

operations" in s.164(7) are:

"'mining operations' means -

(a)	exploration, prospecting or mining for minerals; or

(b) the dressing

or beneficiation (at the

mining site or elsewhere) of minerals, or ores bearing minerals, as an integral part of operations for their recovery,

and includes -

other	(c)	operations connected with exploration, prospecting or mining €or minerals that are carried out in, or at a place adjacent to, the area in which the exploration, prospecting or mlning occurs :
...

but does not include quarrying operations carried on for the sole purpose of obtaining stone for building, road maklng or similar

purposes :

" .

3 .

"Minerals" are defined in the same sub-section to mean "minerals

in any form, whether solid, liquid	o r	gaseous, and whether
organic or inorganic."

What the appellant contends

is that the statement, at

the end of the "definition" of "mining operations", that certain quarrying operations are not included, implies a radically different understanding of "mining for minerals", where that

expression is used in paragraph (a), from that which high

authority would normally require.

It is said the difference

such as to enable

to be held that the activities of the

appellant were mining operations within the provision. It is, of course, undoubted that both "mining" and "minerals" are words of imprecise and potentially wide meaning, which must be understood according to the context in which they are used. But, 1n construing s.164, one cannot overlook the High Court's decisions on the similar usage of the expression "mining operations" in N.S.W. Associated Blue-Metal Quarries Limited v. Federal Commissioner of Taxation (1956) 94 C.L.R. 509, and North Australian Cement Limited v. The Commissioner of Taxation of the

Commonwealth of Australia (1969) 119 C.L.R.

353.

The word "minerals", as Dixon

C.J.

and Williarns and

Taylor JJ. pointed out in the appeal in the Eormer oE those cases, at p.522, is perhaps as difficult as the word "mining"; and the difficulty is emphasised if one looks at the definition given in the Shorter Oxford English Dictionary, which glvcs the first meaning as: "Any substance which is obtained by mining." A

settled view would exclude activities, such as quarrying f o r b l u e

4 .

metal, which are unrelated to an ordinary understand~ng of "mining" as the word is used in Australia today. Likewise, in my

opinion,

the

settled meaning of the

expression

"mining

operations," and

in particular of the expression "mining for

minerals," would exclude the activities of

the appellant.

It would require a strong context to lead the Court to

jettison the High Court learning, supported as it is by a wealth

of earlier authority, even though the High Court decisions are,

of course,

not

directly

binding for

the purposes of the

construction of the section here

in questlon.

But the argument

from the non-inclusory portion of the definition is in fact quite exiguous. In Corporate Affairs Commission (SA) v. Australian Central Credit Union (1985) 61 A.L.R. 236, a simllar argument, applied to a statutory provision to which it could perhaps have been more readily applied than the argument presented here in

relation to s.164, was re~ected

by the High Court.

At p.242, in

the joint judgment of Mason ACJ, Wilson, Deane and Dawson JJ.,	it
was said:

"It should be mentioned that

it was also

submitted, on behalf of the Commission and the Registrar, that the content of the

specific

ex lusions

from

the

general

Drovisions of S 5 ( 4 1 of the Code [this was a case concerned with the provisions of the Companies (South Australia) Code] supported a conclusion that the proposed offer in the present case would constitute an offer to a section of the public for the purposes of the sub-section. As King CJ pointed out in the

Full Court

the Supreme Court however,

undue attention by courts to implications based on such exceptions is liable to lead to constructions which distort the true meaning

Of the relevant general	substantive
provisions."

5 .

In s.164, the words of non-inclusion are added to avoid any suggestion that the quarrying

referred to is included: but

there was a real risk that it might otherwise have been included by virtue of paragraph (c) of the so-called definition. That 1s a sufficient explanation of the presence of those additlonal words. There is, of course, no suggestion that paragraph (c) has any application in the present case.

may add that,

in my opinion, on no view of the

definition was it open to hold that the dredging operations In question in this case constituted mining fo r minerals. They were not to win anything having a characteristic of a kind which ordinary understanding would describe as mineral, but to win

building materials for the uses outlined at the beginning

these reasons.	In my opinion the appeal should be dismissed with
costs.

NORTHROP J.	I will ask M r . Justice Spender to express	his
opinion.

SPENDER J. I agree.

NommoP J. I also

agree

with

the reasons

given

and,

accordingly, the order of the Court	is that the appeal	be
dismissed with costs.

I	certify that this and the

preceding four ( 4 ) pages are a

true copy of the Reasons for

Judgment herein of the Court.

.T/n

,_- I

!,>,d. Assoclate

Dated:

7 A p r l i ,

1987.

Counsel for the Appellant:

G. Davies Q.C. with

J. Rivitt

Solicitors for the Appellant:

Cleary & Hoare

Counsel for the Respondent:

P. Dutney with J. Pyne

Solicitors for the Respondent:

Australlan

Government

Solicitor

Date of hearing:

7 April 1987.

LIMIlcu

UISIRIBUrION

CATCHWORDS

Meaning

o f

" m i n i n g

f o r mlnera ls"

i n t h e

d e f i n i t i o n

o f

" m l n i n g

ope ra t ions"

i n s . 1 6 4 ( 7 )

t h e Customs Act

1 9 0 1 -

E f f e c t of

t h e

a d d l t l o n t o t h e

d e f i n i t l o n :

" b u t

d o e s

n o t

l n c l u d e quarrying

o p e r a t i o n s

. .." -

S a n d

d r e d g l n g

f o r

b u i l d l n g

m a t e r i a l s

n o t

" m i n i n g

f o r minerals"

a n d

n o t

w i t h i n

" m i n i n g

o p e r a t l o n s " .

Exclse Act

1 9 0 1 ,

s . 7 8 A

C u s t o m s

Act

1 9 0 1 ,

s . 1 6 4

N E U M A N N

D R E D G I N G

CO.

LTD.

t r a d i n g a s N E U M A N N

CONTRACTORS

-V-

COLLECTOR OF CUSTOMS (QUEENSLAND)

QLD G . 1 4 7

o f

1 9 8 6

N o r t h r o p ,	S p e n d e r	6	B u r c h e t t	JJ.
Br i sbane

A p r i l

1 9 8 7

I N	T H E	F	D E R A L	C O U R T	O F	A U S T R A L I A	1
)

O U E E N S L A N D	D I S T R I C T	R E G I S T R Y	1	No.	G . 1 4 7	of	1 9 8 6
)

D I V I S I O N	G E N E R A L	1
BETWEEN :

NEUMANN DREDGING

CO.

LTD.	t r a d i n g as

NEUMANN CONTRACTORS

A p p e l l a n t

AND :

COLLECTOR OF CUSTOMS

(QUEENSLAND)

R e s p o n d e n t

MINUTE

ORDER

OF THE COURT

Judges Makinq

O r d e r :

Northrop,

Spender a n d B u r c h e t t JJ.

Where

O r d e r Made:

B r l s b a n e

D a t e of

O r d e r :

A p r i l 1 9 8 7

THE

COURT

ORDERS

THAT:

T h e appea l

d i s m i s s e d

w l t h

cos t s .

NOTE :

Settlement and e n t r y of

orders 1s d e a l t w l t h I n O r d e r 36

t h e Federal C o u r t

R u l e s .

.. .

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

No. G.147 of 1986

)

GENERAL DIVISION	)
BETWEEN:

Appellant

AND :

COLLECTOR OF CUSTOMS

(QUEENSLAND)

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

NORTHROP J,

I would ask Mr. Justice Burchett to express his oplnion,

please?

BURCHETT J.

This is an appeal

from

the

Administrative

Appeals

Tribunal, in which the question

of law ralsed concerns the true

construction of the definition of "mining Operations" in s.164 of the Customs Act 1901 as applied in s.78A of the Excise Act 1901,

which provides

in certain circumstances for a rebate in respect

of diesel

fuel

purchased

for use in (inter

alla)

mlnlng

operations. The appellant's

activities,

out

which

its

application

the

Admlnistrative

Appeals

Tribunal

arose,

involved dredging sand, toqet9er with other marine matet-lals, and

2 . _.

pumping

it ashore, where material

not usable was separated out

and the

usable

material

was

stockpiled

for

later

building

activities of the nature

land reclamation and retaining wall

construction. These activities were summarised	by the Tribunal
as follows:

"The

operatrons

of the

applicant

were

designec to provide to its co-contractors

relatively

overburden

clean

(which

uses such as are recorded earlier. The

applicant was not mining f o r minerals, the

coincidectally contained mineral matter) for fill' (an expression used by Mr. Barr in his

evidence). That

this

homogeneous

fill

may

well have contained minerals,

is beside the

point in our view."

The material

parts

of the

definition

of "mining

operations"

in s . 1 6 4 ( 7 )

are:

"'mining operations' means -

(a)	exploration, prospecting	o r	mining for
minerals; o r

(b) the dressing

or beneficiation (at the

mining site

or elsewhere) of minerals,

or ores bearing minerals, as an integral

part of operations for their recovery,

and includes -

other

(c)

operations

connected

with

exploration, prospecting or mining for minerals that are carried out in, or at a place adjacent to, the area in which the exploration, prospecting o r mining occurs ;

...

but does not

include quarrying operations

carried on for the sole purpose of obtaining stone for building, road making or similar

purposes ;

' I .

3 .

"Minerals" are defined in the same sub-section to mean "minerals

in any form, whether solid, liquid or gaseous, and whether

organic or inorganic."

What the appellant contends is that the statement, at

the end of the "definition" of "mining operations", that certain

quarrying

operations

are

not included,

implies a

radically

different understanding of "mining for minerals", where that

expression

used in paragraph (a), from that which high

authority would normally require.

It is said the difference

such as to enable

to be held that the activities of the

appellant were mining operations within the

provision. It is, of

course, undoubted that both "mining" and "minerals" are words of imprecise and potentially wide meaning, which must be understood according to the context in which they are used. But, in construing s.164, one cannot overlook the High Court's decisions on the similar usage of the expression "mining operations" in

N.S.W. Associated

Blue-Metal

Quarries

Limited

Federal

Commissioner of Taxation (1956)

94 C.L.R. 509, and North

Australian Cement Limited v.

The Commissioner of Taxation of the

Commonwealth of Australia (1969) 119 C.L.R.

3 5 3 .

The word "minerals", as Dixon C.J.

and Williams and

Taylor JJ.

pointed out in the appeal in the former of those

cases, at p.522,

is perhaps as difficult as the

word "mining";

and the difficulty is emphasised if one looks at the definition given in the Shorter Oxford English Dictionary, which gives the first meaning as: "Any substance which is obtained by minlng." A

settled vlew would exclude activities, such as quarrying for b!ue

metal, which are unrelated

to an ordinary understanding

"mining" as the word 1s used in Australia today.

Likewise, i n my

opinion,

the

s ttled

meaning

of the

expression

"rninlng

operations," and

in particular of the expression "minlng for

minerals," would exclude the activities of the appellant.

It would require a strong context to lead the Court to

jettison the High Court learning, supported as it is by a wealth

of earlier authority, even though the High Court decisions are,

course,

not

directly

binding for

the

purposes

of the

construction of the section here

in question.

But the argument

from the non-inclusory portion of the definition

1s in fact quite

exiguous.

I n Corporate

Affairs

Commission

(SA)

v. Australian

Central Credit Union ( 1 9 8 5 ) 61 A.L.R. 236, a slmilar argument, applied to a statutory provision to which it could perhaps have been more readily applied than the argument presented here i n

relation to s.164, was rejected by the High Court.

At p.242, in

the

~ o i n t

judgment of Mason ACJ, Wllson, Deane

and Dawson JJ., it

was said:

"It should

be mentioned that it was also

submitted, on behalf of the Commission

and

the

Registrar,

that

content

the

specific

ex lusions

from

the

general

provisions of S 5 ( 4 ) of the Code [this was a case concerned with the provisions of the Companies (South Australia) Code] supported a conclusion that the proposed offer in the present case would constitute an offer to a section of the public for the purposes of the

sub-section.

As King CJ pointed out

in the

Full Court

the Supreme Court however,

undue attention by courts to implications based on such exceptions is liable to lead to constructions which distort the true meaning

of the

rel vant

ge eral

substantive

provisions."

In s.164, the words of non-inclusion are added to avoid any suggestion that the quarrying referred to is included: but there was a real risk that it might otherwise have been included by virtue of paragraph (c) of the so-called definition. That 1s

a sufficient explanation of the presence

of those additional

words.

There is, of course, no suggestion that

paragraph (c) has

any application in the present case.

I may add that,

in my opinion, on no view

of the

definition was it open to hold that the dredglng operations

question in this case constituted mining for minerals. They were not to win anything having a characteristic of a kind which ordinary understanding would describe as mineral, but to win

building materials for the uses outlined at the beginning

these reasons.

In my opinion the appeal should be dismissed with

cos

tS .

NORTHROP J.	I will ask Mr. Justice Spender to express his
opinion.

SPENDER J. I agree.

NORTHROP J.

I also

agree

with

the

reasons

glven

and,

accordingly, the order of the Court	is that the appeal	be
dismissed with costs.

I	certify that this and the

preceding four ( 4 ) pages are a

true copy

of the Reasons for

Judgment herein of the

Court.

7 ,

- 9 / E ,_ 5; y:-

Assoclate

Dated:

7 Aprii, 1987.

Counsel for the Appellant:

G. Davles Q.C. wlth

J. Rivitt

Solicitors for the Appellant:

Cleary h Hoare

Counsel for the Respondent:

P. Dutney with J. Pyne

Solicitors for the Respondent:

Australian

Government

Solicltor

Date of hearing:

7 April 1987.

[1987] FCA 259

7 Apr 1987