O'Grady v The North Queensland Company Limited

[1989] HCATrans 152

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl0 of 1989

B e t w e e n -

WALLER STANDISH O'GRADY

Applicant

and

THE NORTH QUEENSLAND COMPANY

LIMITED

Respondent

Application for special

leave to appeal

BRENNAN J
DEANE J

DAWSON J

O'Grady

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 30 JUNE 1989, AT 9.55 AM

Copyright in the High Court of Australia

BlT3/l/HS 1 30/6/89

MR D.F. JACKSON, QC:  May it please the Court, I appear w~th

my learned friend, MR P.R. DUTNEY, for the applLc2n~.

(instructed by MacDonnells)

MR F.L. HARRISON, QC:  I appear with my learned friend,

MR P.C. STEPHENS, for the respondent.

(instructed by Bottoms Davies Nash)

BRENNAN J:	Yes, Mr Jackson.
MR JACKSON:	Your Honours, the issues which, in our submission,

merit the grant of special leave in this case are

two in number, but are connected. Thev are first,

the extent to which the iurisdiction of the Suoreme
and District Courts in ~ueensland is excluded.by
section 80(1) of the MINING ACT 1968, as amended,

and, secondly, whether orders for sale in lieu of

petition may be made under sect ion 38 of the

PROPERTY LAW ACT where the property in question is

a mining lease. Your Honours, may I deal with the

application in this way:  first, to indicate the way

in which the issues arise and the need for the grant

of special leave and, secondly, to submit that the case

is an appropriate case in which special leave should be

granted.

Your Honours, could I go first to the provisions

of the MINING ACT and, in particular, to section 80(4)

which Your Honours will see in a pamphlet copy,which

Your Honours should have, appears at page 100 - it is a photocopied document, Your Honours.

BRENNAN J:	Photocopies, are they?
MR JACKSON:	Your Honour, we have given a bundle of the

documents to which I wish to refer to each of

Your Honours' tipstaves. Your Honours, I -wanted to refer first

to section 80(4) which simply says:

With respect to matters within its

jurisdiction, the jurisdiction of

the Wardens Court shall be exclusive.

Your Honours, the jurisdiction to which that subsection

refers is contained relevantly in two places, both

to be found in section 80(1). The first is in the opening paragraph of section 80(1) which says that:

Subject to section 80A -

Your Honours, which does not matter for present purposes -

a Wardens Court shall have jurisdiction to

hear and determine all actions, suits and proceedings arising in relation to mining or to any mining tenement.

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That is the first provision, Your Honours.

Your Honours will see that it refers to "actions,

suits and proceedings arising in relation to",

two things, "mining or to any mining tenement".

The term "mine" is defined by section 7(1) in

paragraph (a) and Your Honours will see from the

end of the definitions on page 11 that derivatives

bear similar meanings:

to carry on any operation with a view
to or for the purpose of winning mineral
from a place where it occurs naturally

or extracting mineral from its natural

state -

and so on. Your Honours, the second provision

of section 80(1) which is relevant is to be found in

section 80(l)(g) which says that -

Without limiting the generality of the foregoing jurisdiction -

in the first paragraph of subsection (1) -

a Wardens Court shall have jurisdiction

to hear and determine actions, suits and

proceedings with respect to the following

matters -

and subsection (g) is:

any matter arising between miners in

relation to mining on -

and then, Your Honours, the various classes of land

in respect of which there may be mining tenements

are set out. Your Honours, the jurisdiction of the

Mining Wardens Court, in terms of the powers - if I

could use that expression - to refer to the powers

which may be exercised is expanded upon by the last

paragraph of subsection (1) and by subsections (2) and

(3). Your Honours, prior to the decision in this

case there were two other decisions of the supreme court dealing with the effect of sections 80(1) and

80(4) of the MINING ACT. Since then there have

been two further decisions, one of the Full Court;

one of Mr Justice de Jersey. Your Honours, there

is some conflict, in our submission, between the

decisions in the Full Court and that is a matter which
we will be submitting merits the grant of special

leave.

Your Honours, could I go to the first decision.

That was a decision of Mr Justice Connolly in

GEORGE COMANOS & ASSOCIATES PTY LTD V FINGOLD

RESOURCES PTY LTD (No 1), (1987) 2 Qd R 631.

There Mr Justice Connolly held that an action to

enforce an agreement to assign a 14 per cent interest

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O'Grady

in certain mining tenements was an action which

arose in terms of section 80(1) in relation to a

mining tenement and that the Wardens Court thus

had exclusive jurisdiction. The relevant parts,

Your Honours, appear at page 633, commencing about

line 4 on the page and going to the end of that

paragraph, and at page 634 commencing about line 40

and going to line 45.

Now, Your Honours, I simply want to refer to that

because that approach was adopted by the Full Court

in the first of the cases in which this question was

in issue. That was the decision of the Full Court
in GRAHAM V SUIMIN CO (AUSTRALIA) PTY LTD, (1989)

1 Qd R 291. Your Honours, there it was held that

a claim for specific performance of an agreement for

the sale of a mining lease was within the exclusive

jurisdiction of the Wardens Court. Your Honours,

that appears at the commencement of the judgment of

Mr Justice Kneipp at page 291 and then His Honour

sets out the provisionsof the section and then at

page 293 says in the paragraph commencing about

line 13:

One would think it plain enough that

this action is one -

and he then goes on to say that it falls within the

terms of the provision. Your Honours, the decision

in that case was given coincidentally on the day

on which judgment was reserved in the Full Court in

the present case and in consequence of that decision

submissions were made by the parties in writing on

the question of jurisdiction. Your Honours, the

present case was one where the parties had entered

into an agreement which did two things; the first

was that it was an agreement for the sale by the

applicant to the respondent of part of his interest

in a mining lease, that is he held an 85 per cent

interest, he was selling it - 60 per cent. That

was the first thing. The second thing was that the

applicant, the respondent and a third party agreed

to develop the mining lease by a joint venture.

Your Honours, a copy of the agreement is not 1n

the application book, but we have a copy of the

document which was an exhibit before the courts below

in the bundle which has been handed to Your Honours'

tipstaves	and I wonder if I could take Your Honours
to it for just one moment.	The summary of

agreement, Your Honours, appears on the first page in

the recitals and that is it recites in A that the

applicant was:

or is entitled to be the registered

holder of an 85 per cent interest in

the lease .....

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C. the first vendor -

that is the applicant

has agreed to -

sell that interest to the respondent.	Th	1n
paragraph E:

The parties have agreed to associate

themselves in a joint venture in accordance
with the provisions of this agreement for

the purpose of conducting the exploration

and mining operations on the mining lease.

Your Honours, if I could go to clause 2.1 Your Honours

will see the agreement to sell the 60 per cent share

or interest and, Your Honours, at the bottom of the

same page in clause 3 the agreement to:

constitute a joint venture -

between the three parties -

for the purpose of conducting exploration

and mining operations on the mining lease

the parties having the following

participating interests.

At clause 3.1 it said:

As soon as practicable after

the respondent became -

the registered holder of the share or

interest in the mining lease acquired by

it ..... a joint venture committee shall

be established -

for the purposes set out in that clause. Your Honours,

I am sorry to have taken so long but one needs to look

at that just for this purpose. The Full Court in

the present case held that the claims made by the

applicant were within the exclusive jurisdiction of

the Wardens Court, but that the respondent's counter-

claim on the same agreement was not, that is that

the supreme court had jurisdiction to deal with the

respondent's counter claim which was, in effect,

for an order that the applicant appoint its

representatives to the joint venture committee

constituted under clause 3.1.

BRENNAN J:  Under what part of section 80, in your submission,

does a claim for the specific enforcement of

clause 3.1 fall?

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O'Grady

MR JACKSON:  It would fall, Your Honour, under the two

provisions to which I referred, that is both
paragraph (g) and also the opening words of the

subsection. Your Honours, the reasons give~ by

the Full Court were stated by Mr Justice Demack

at page 51 going on to page 52, and Your Honours

will see particularly at the bottom of the last

paragraph on page 51 His Honour said:

the section is ousting the Supreme

Court's jurisdiction in matters of private rights ..... In other words, the ascertained or asserted facts must

necessarily relate to mining or to a

mining tenement. Clearly enough in an

action for specific performance of a
contract for the sale of a mining lease,

both the asserted and the ascertained

facts must necessarily relate to a mining

tenement.

Then, Your Honours, if I could go to page 52 about

point 4:

Without stating the issues in detail, asserted in the statement of claim

necessarily related both to mining and

to a mining tenement. The alleged

breaches included reference to ground

works and testing on the mining site

which seem clearly enough to relate to

mining. The relief sought -

His Honour then specifies what the relief was and

then says:

In my opinion the statement of claim could not be heard by the Supreme Court.

The counter-claim is a different
matter.	The relief sought at the trial

was declarations that the purported

rescissions of the agreement were ineffective

and an order that O'Grady and Crowley

perform the joint venture agreement by

designating their representatives to the

joint venture committee. Both asserted

and ascertained facts related to matters

that involved no reference to mining or
to mining tenements. It was simply a claim

about personal obligations under a contract.

Your Honour, that has created, with respect, the

finest of distinctions and one which, we would submit,

is untenable. It is difficult to think of a

contractual claim which is not about personal

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obligations under a contract and the two earlier

decisions were claims for the enforcement of

personal obligations. Your Honours, the terms

"explorations" and "mining operations" were - - -

DEANE J:	Mr Jackson, could I just try and fit this into
the case.  On what you are submitting, would

the Court be required to examine the correctness

of the Full Court's decision in so far as it held

that putting to one side the appointment of trustees

for sale your client failed?

MR JACKSON:	Your Honour, if special leave were granted?
DEANE J:	Yes.
MR JACKSON:	If special leave were granted, and if we were

correct on the submission I have been making so far,

the Court would not be required to. The question

would simply be whether the supreme court did or did

not have jurisdiction.

DEANE J:	On the counter-claim?
MR JACKSON:	Yes, Your Honour.
DEANE J:	And on the appointment of trustees for sale, if

you succeeded on that argument what, would you be

saying that we would send it back to the Full Court

to deal with that question?

MR JACKSON:  Your Honour, I have to say it is just slightly

more complicated that that because if it were that
the judgment below remained as it were, in effect,
in terms of jurisdiction so far as the counter-claim

was concerned, but the Court were to take the view

that the Full Court was wrong in holding that it had

no jurisdiction under section 38 of the PROPERTY LAW

ACT, then the Court would have to consider the correctness of the view taken by the Full Court but not by the primary judge that we have failed on

that issue.

DEANE J:  I see that, yes, which means you then - what you

are trying to do is embroil us into all these

questions of who was in breach of covenance in

the complicated circumstances of this case.

MR JACKSON:  Your Honour, in fact, I would not. I would,

with respect, not choose to put it quite that way.

DEANE J:  Having read the judgments, it is the way I would

put it.

MR JACKSON:  Your Honour, the point we would be seeking to

advance would not be a question - we would not wish

to pursue, I should say, the question whether

particular things had or had not given rise to

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a breach of covenant. The point we would seek Lo

argue in dealing with the question whether the

judgment of the Full Court was wrong, in so far as

it differed from that of the primary judge, was

simply to say that the view of the primary jud~e

which was that the joint venture agreement which

might now come into being, in effect, or be

enforced to come into being, was not the joint
venture agreement that the parties had agreed to

in the first place.

There are many other issues that arose below

that we would not wish to oursue now. So, Your Hono·

the point would simply be -the point in which

the Court would become embroiled, if I could use

that expression, is simply the question whether there

had or had not come into being the joint venture

agreement in question. If there had not been, and

in our submission, the primary judge correctly

decided that, then the position woul: simply be

there was no obstacle to there being an order

under section 38.	So, Your Honours, that is the
approach we would take to the matter.	Your Honours,
could I just add two other things - - -

BRENNAN J:  How would you hope to limit it in that way,

Mr Jackson? By reference to what grounds of appeal

would you hope to limit it in that way?

MR JACKSON:  Might I ask my learned junior to look at the

particular grounds?

BRENNAN J:	Yes.
MR JACKSON:	Could I indicate that that is the area we

would propose to deal with in the sense that there

had been listed in particular paragraphs of the

pleadings allegations of breaches by us which we

would not pursue and, Your Honour, it is possible to

exclude those easily enough and to limit the grounds.

I will endeavour to give Your Honour a reference to

that. Your Honour, whilst that is being looked at,

could I proceed to deal with the other matters with

which I wanted to deal. They were these: first,

Your Honour, the particular provision of the agreement

of which specific performance was sought was
clause 3.2 which was for the appointment of the
members of the joint venture committee and, Your Honour,
the joint venture committee was, as the provisions of
the contract indicated, to supervise the conduct

of exploration and mining.

That is something which we would submit,

prima facie, would be within the opening words of

section 80(1) and there also would be no reason,

we would submit, why it would not be within the

terms of section 80(l)(g).	Your Honours, I said
there was another decision of the Full Court.	That

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is an unreported decision, CENTRAL QUEENSLAND

SPELEOLOGICAL SOCIETY INCORPORATED V CENTRAL

QUEENSLAND CEMENT PTY LIMITED, a decision of

the Full Court given on 7 March 1989. In that

case Mr Justice Thomas - Your Honours, his judgment

commences four pages in. 0:1 page 6 of his reasons

for judgment commencing at about point 4 he expressed

the view that proceedings were not proceedings
arising in relation to mining unless they arose

directly in relation to mining as such and Your Honours

will see that sentence commencing:

It is not enough that the case has

something to do with mining or even

that a reduction of mining activity may

be the inevitable consequence of granting
the relief sought in the action. Before

"proceedings arising in relation to mining"

are to be conferred upon a mining warden

(with the consequence that his jurisdiction

is exclusive) the action, suit or proceeding

will need to arise directly in relation to

mining as such.	An indirect connection
will not suffice.

Your Honours, that was a case where, by reason of a

breach of the FAUNA CONSERVATION ACT it was suggested

that mining under a mining lease should not proceed.

Your Honours, at the same page His Honour recognized

at the bottom of the page that:

greater difficulty exists in restricting

the ambit of proceedings arising in

relation to mining tenements and leases -

and that goes on the top of page 7.

Mr Justice Derrington, whose is the next judgment,

thought the test was one of a real and direct

relationship. That appears at page 1 of his

reasons for judgment at the bottom of the page and

that goes on, Your Honours, to the end of the first

paragraph on page 3 and,finally, Your Honours,

Mr Justice de Jersey, at page 2 of his reasons for

judgment dealt with the matter in the second and

third paragraphs on that page. The essence of his

reasoning appears to be in the second par a graph , th a t

there was not:

a sufficiently close connection to

warrant the conclusion that the proceedings

"arise in relation to" mining. It would

be more appropriate to say that the

proceedings arise in relation to an

apprehended breach of the FAUNA

CONSERVATION ACT by the respondent's

destruction of or damage to the cave.

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Of course, Your Honours, things may arise in

re 1 at ion to two things. of course.	It is obvious from
characterization cases - - -

DEANE J:  Except what Mr Justice de Jersey says at the

second-half of page 2 of his judgment has a areat

deal of force behind it, has it not? I mea~,

you are dealing with a completely different

problem. It is rather like saying that an action

for negligence against the driver of a mining truck
cannot be brought otherwise than in the Wardens

Court.

(Continued on page 11)

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MR JACKSON:  Your Honour, that might depend. If one were talking

about being run down by a mining truck outside the

mining lease, that would seem - - -

DEANE J: Let us say, "On the mining lease".

MR JACKSON:  I was going to say, Your Honour, if one were run

down by a truck outside the mining lease, then

section 80(1) would not, we submit, apply.

DEANE J:	What if the truck was full of newly-illined coal?
MR JACKSON:	Your Honour, undoubtedly, there is a question of

degree. What I was going to say was there are

some circumstances where it would apply.	For example,
it would apply - one would thL1.1:-.	that if one were

talking about being run down in, say, a mine shaft

or in an open-cut mine, or perhaps as the ore was

being brought from the open-cut mine to some place

where it was being treated, it may well apply.

I do not debate - - -

DEANE J: All I was really suggesting, Mr Jackson, was it is

drawing a rather long bow to say that what was said

in the BATS' case is inconsistent with the judgments

in the two earlier cases.

MR JACKSON:	Well, Yo_r Honour, the short fact is, in our submission, that what the courts have been seeking to
do - in several Full Courts - is to set out a test
which really departs from the words of the section. The words of the section are ones which simply require
a court to consider in a particular case -in each case
whether the jurisdiction - whether the case is one which
falls within the terms of it and by seeking to find
synonyms for it the courts have arrived at a situation
where one gets the curious result here that an action
in which the parties are seeking,  in which one of
the parties is saying, "We want to enforce an
agreement which is an agreement which will result in
a mining tenement which we both own being mined, is
something which is not an action arising in relation
to a mining tenement and, Yo~r Honour, one now has
three decisions of the Full Court on that point and three decisions of the Full Court dealing with the provision and, Your Honour, if that is a result of the decisionsthen the Court should look at the matter
because it seems a decision which , in our submission,
is certainly, very arguably, incorrect.

Your Honours, could I just say this, Your Honours:

underlying the judgments in the courts below, in those
various cases, is the notion that clear words are

necessary to take away the jurisdiction of a

supreme court. Your Honour, so much may be admitted

but what has happened in relation to the MINING ACT

is that the legislature has expressed a legislative

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des ire to have a different, and perha1)s cheaper. regioe

in relation to particular classes of cases, and is
not as though the legislature is taking away from the
court system cases of that kill<..:. and, Your Honours,

there is an appeal to the district court as of right

under section 90(1), and a case may be stated to

the supreme court under section 94.

Your Honours, there is no reason why one, in

our submission, should start with a preconception that

for the legislature to do that is a bad thing and

look for ways to avoid it and, Your Honours, that

underlies the views of the courts below.	Your Honours,
I have not yet referred to section 38(1).	Your Honours,

the court's decision on this point was expressed at

page 52 and, Your Honours, all that was said in

relation to that was at 52 point 5:

The relief sought included both a reconveyance of the mining lease -

this is the relevant part -

and an order for the appointment of

statutory trustees of the lease.

And His Honour went on to say that it was outside

the court's jurisdiction.

BRENNAN J:  Was section 38 argued in the notes of argument

submitted by counsel?

MR JACKSON:  Yes, Your Honour. Your Honours, the provisions

of section 38(1) expressly confer jurisdiction on the SJpreme court notwithstanding the provisions

of any other Act, and	section 38(1) says,
Your Honours:

Where any property ..... is held in co-ownership

the Court may, on the application of any one

or more of the co-owners, and notwithstanding
the provisions of any other Act, appoint

trustees -

and so on. Your Honours, the court referred to is

the supreme court. That appears from section 4(1) in

the definition of "Court". And the terms of

section 5(l)(a)(iv) state that:

Except where otherwise provided, this Act

shall .....

(d) without limiting the generality of

paragraph (c):-

(iv) subject to the provisions of the

MINING ACT, apply to leases, and any other

rights in or in respect of land, granted,

created or taking effect under or pursuant

to the provisions of thod~ Acts.

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Your Honours, there may well be a question whether the words "subiect to the provisions of the

MINING ACT" refer particularly to the jurisdictional

provision or relate to the various provisions which
deal with incidents attaching to mining leases and

the nature of the property which constitutes a

mining lease. But, Your Honours, there is a very

substantial argument, in our submission, that the

terms of section 38(1), by their specific reference

to "notwithstanding the provisions of any other

Act", make is clear that section 38 (1) can be applied.

Your Honours, those are our submissions.

DEANE J:	Mr Jackson, can I ask you two things? One is,
is this purely a Queensland legislative problem or
are there similar provisions in the legislation of other States.
MR JACKSON:	Your Honour, I cannot give Your Honour a direct

answer to that. I believe the position to be that it

is a Queensland - that when one looks at the complex

of provisions as they exist, they are Queensland

provisions, although there have been, for many years,

varying orovisions in the Acts of, I th:h7k, all the States i;vnic;:-,.

have given broader and narrower jurisdiction

to mining wardens courts and to mining wardens and

from time to time the jurisdiction has been expressed

to be exclusive but, Your Honour, I cannot say that
the particular point is one that arises otherwise than

in Queensland.

DEANE J:  The other thing I would like to ask you is, if the

Court were not prepared to become involved in the
complications of this particular contract which would

really mean that any appeal would be limited to whether

the order against you on the counter-claim should have

been made, would you still be pressing for leave.

MR JACKSON:	Yes, Your Honour, we would.
DEANE J:	If you get an untrammelled leave, you would be

arguing in two directions as it were. Which would

be your preferred direction, that the Court did not

have jurisdiction to deal with the counter-claim or

that the Court did have jurisdiction?

MR JACKSON:  Our preferred direction, Your Honour, would be

the the Court did not have jurisdiction to deal with

the counter-claim.

DEANE J:  But you would try and have the best of both worlds by

saying the "notwithstanding" overcame the lack of

jurisdiction anyway in terms of section 38(a).

MR JACKSON:  Yes. Your Honour, I would have to say

that because if the Court were to grant special leave

and to entertain the section 38 point, then it would

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seem that in determining whether to make an order

under section 38 a court would have to take into

account whether there was a contract that bound the

parties, in any event, so that, Your Honour, that

issue is involved, I think it right to say.

DEANE J: Except, if you succeeded on the argument of power to

appoint trustees, it would bring in, would it not, a

possible basis for dealing with the counter-claim

even if you would otherwise have succeeded on the

counter-claim argument.

MR JACKSON:  Yes. Your Honour, we would accept that if

the court had jurisdiction to deal with the section 38

claim - by that I meant the supreme court then one of

the bases on which that claim might have been resisted

was that there was a contract between the parties which

was enforceable and which bound the parties to deal wich

the property in a way inconsistent with that and that

would be that that defence, in effect, would not be

excluded from the jurisdiction of the supreme court.

DEANE J:  No. What I had in mind was if the court would otherwise

not have had jurisdiction to deal with your claim but

got it by reason of the "notwithstanding" provision

in the PROPERTY LAW ACT, one would be far more inclined

to exclude jurisdiction in the case of a counter-claim

where the court had jurisdiction to deal with the

primary claim, than if the court did not have

jurisdictior: otherwise. If we came to that stage,

do you know which way you would be arguing? I mean,

what do you prefer that the court has jurisdiction

under section 38 and jurisdiction to deal -.,i.th the

counter-claim, or that it has no jurisdiction?

MR JACKSON:  No jurisdiction, Your Honour. If one adopts

Hobson' s choice, that is the first - Hobson(l), if I can -

DEANE J:  I thought that was probably so. I just wanted to check, yes.

MR JACKSON:  - - -put it that way, Your Honour, yes.

DEANE J: So, the attack is primarily on the jurisdiction to

deal with the counter-claim?

MR JACKSON:  Yes. Your Honours, I was asked what grounds we

would not pursue and I was going to refer to page 91;

that would be ground (c). The other grounds,

Your Honours, I think, deal with the question of

jurisdiction. I am sorry, Your Honours: ~round (a)

deals with jurisdiction and ground (b) deals with

the question of whether the joint venture had come

into operation - and,Your Honours, that is the base

of the claim under section 38 - and grounds (d), (e)

and ( f) deal with a question whether the existence

of a royalty agreement was a bar to an order under

section 38.

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BRENNAN J: That means that section 38 then opens the Pandora's

box.

MR JACKSON:  It may open a box but there is not much in it,

really. Your Honour, it would be nice if every

case that the Court had to entertain had no other

questions but sometimes they do.

BRENNAN J:  Of course. Now, just so that I understand

precisely, Mr Jackson: if the Court were to grant

you special leave in an untra8.melled form, are there

any of those paragraphs, did you say, which you

would not seek to press?

MR JACKSON:  Paragraph (c) I said, Your Honour.

BRENNAN J: Paragraph (c)?

MR JACKSON:  Yes, Your Honour, (c) is the one that, in so far as

there is a Pandora's box, contained the larger number
of items because it alleged various breaches - we

alleged very breaches of the agreement which we

would no longer wish to pursue.

BRENNAN J:  Yes. Mr Harrison.

MR HARRISON:	If the Court pleases. With respect, if my learned friend were not to pursue ground (c), in our submission,
he would not succeed on the question of the appoint~ent
of trustees because it is not really to the point to ask whether the joint venture agreement came into
operation.  The ground on which the Full Court held
that an order for the appointment of trustees should
not be made was that there was still an agreement in force and it is only if my learned friend can get
rid of that that he can ultimately succeed.

Now, the matter that is framed in paragraph (b)

is simply one that does not determine whether or

not it was still in force. The joint venture may

not be in operation in the sense that the parties have not yet started to do anything but that does not determine whether or not the court can make

an order that will set it into operation by the

setting up of the first step of its operations, that

is the appointment of the new trustee. So that,

with respect, it will become, really, a futile

exercise unless my learned friend seeks to overturn
the finding that the agreement had not been terminated.

The point he seeks to raise as a special leave point was, as my learned friend has mentioned,

argued in the written submissions and what was put

to the court and impliedly accepted was that the

words "not withstanding the provisions of any other

Act" were not concerned with which court had

jurisdiction but were concerned to override provisions

containing restrictions on dealings in property such

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O'Grady

as, for examp,le, the requirement that a transfer

of mining lease have the approval of the minister

and that impliedly was accepted. It may well be

that it is a point that may deserve further

elucidation but as I have submitted it simply does

not arise unless my learned friend can get rid of

the agreement which the court considered to be a

discretionary bar to the making of the order.

As to the other point, that is the question of whether the order that the applicant appoint

a member to the joint venue committee, it is our

submission that there is no question of principle

involved at all here. What we have in the present

case is an application of the section to the

particular circumstances of this particular case.

My learned friend has given examples of other

decisions dealing with other facts and it may be

that sometimes it is difficult to determine which

side of the line a matter falls on. When they say

that an action for specific performance of the sale

of a mining lease clearly falls on the one side,

the exclusive jurisdictionside, one may say that,

for example - to refer to one of the decided cases -

an action by a mining company for calls on its

shares clearly falls on the other side. And all

that the court has done here is taken this particular

case, analysed in considerable detail the particular

agreement that is being sought to be enforced and

simply said it does not sufficiently closely involve

the mining tenement to justify a conclusion that

the action is one arising out of or involving a

mining lease. And on that basis, in our submission,

the point sought to be argued as a special leave
point does not really arise and it is just a matter

of the application of this particular agreement

in this particular case. That is really the - - -

BRENNAN J:  Does it necessarily involve a question of what is

meant by "in relation to"?

MR HARRISON:  It could involve a decision as to whether - perhaos

I could put it this way:  if the Court were to hold"

that any remote involvement was sufficient, then

one could say that the case would go beyond the

application of the section in this particular case.

DAWSON J:	Well, you say it is a matter of degree. Obviously
the remotest connection would not be a sufficient relationship but you cannot really define the degree
which is necessary by simply substituting another
phrase and that is all the Court would be seeking
to do.
MR HARRISON:	Yes.
DAWSON J:	Then it is a question of fact as to whether the necessary degree has been reached.

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O'Grady

MR HARRISON:	That is so, Your Honour.
DEANE J:	Mr Harrison, could I take you to section 80 for a

moment? How do you read the last paragraph in

subsection (1)? The "with respect to" is a little

difficult to fit in.

MR HARRISON:	The jurisdiction of a Wardens Court includes
DEANE J:	- - - includes jurisdiction to take
cognizance of and determine with respect
to all claims and interests both legal
and equitable -

It almost looks as if there has been a misprint

somewhere.

MR HARRISON:	It does not seem to scan on the first reading.
DEANE J:	But if you were to leave out the words "with respect

to" and say:

The jurisdiction of a Wardens Court

includes jurisdiction to take cognizance of

and determine ..... all claims and interests -

If you be right and the Wardens Court had jurisdiction

to deal with the plaintiff's claim, why would not
that paragraph have conferred jurisdiction upon the

Wardens Court to deal with your counter-claim?

MR HARRISON:  Because that paragraph is not concerned with

the conferring of jurisdiction. The jurisdiction

is conferred by the first paragraph and that

paragraph is concerned merely to ensure that the

warden has a complete equitable and legal

jurisdiction and not a limited - - -

DEANE J:  But does not the first part of it - the second

part is dealing with the exercise of the jurisdiction.

Is not the first part the common form of section saying, in effect, that if the Wardens Court has a dispute before it it can effectively deal with

all aspects of it?

MR HARRISON: In our submission, no, Your Honour. In our

submission, it is simply concerned with ensuring

that the court is not limited to dealing merely with

legal claims.

DEANE J:	Thank you.
BRENNAN J:	Mr Jackson?
MR JACKSON:	Your Honours, may I say just one thing in response

to the first observations made by our learned friends,

namely, in relation to paragraph (c) of our notice of

appeal? We would simply wish to say this: the issue

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O'Grady

was whether the joint venture, never having been

constituted as originally agreed, the court - by

that I mean the supreme court - should now order

the applicant to be party to a joint venture to

which it had not agreed. That is the point.

BRENNAN J:  The Court will adjourn briefly to consider the course

it should take.

AT 10.40 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.48 AM:

BRENNAN J: In this matter the Court grants the applicant special leave to appeal against so much of the order of the Full Court of the Supreme Court of

Queensland as made an order upon th~ counter-claim.

In relation to the balance of the application made by the applicant for special leave to appeal, the application stands adjourned with liberty to

renew the application before the Full Court.

The purpose of the reservation of that

leave to move in relation to the undisposed of
aspects of the application for special leave is

not intended to lead to a renewal of the application

and an argument de novo but is simply a reservation

in case, on the argument on the appeal in relation
to the counter-claim, the court finds it necessary

to consider aspects broader than those which we

would anticipate them being litigated. In other

words, for general purposes the grant is limited	to the proceedings on the cotmter-claim but that
general leave is reserved in case, in the course of
that argument, it is necessary to consider other
aspects of the matter.

The order is accordingly.

AT 10.49 AM THE MATTER WAS ADJOURNED SINE DIE

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