O'Grady v The Northern Queensland Company Limited

[1989] HCATrans 274

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B23 of 1989

B e t w e e n -

WALLER STANDISH O'GRADY

Applicant

and

THE NORTH QUEENSLAND COMPANY

LIMITED

Respondent

BRENNAN J
DAWSON J
TOOHEY J

GAUDRON J

O'GradyC::0

HcHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 14 NOVEMBER 1989, AT 11.52 AM

Copyright in the High Court of Australia

C2T 24/1/JM 1 14/11/89

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

with my learned friend, MR P.R. DUTNEY for

the appellant. (instructed by MacDonnells)

MR F.L. HARRISON, QC:  May it please the Court, I aDpear

with my learned friend, MR P.C. STEPHENS

for the respondent. (instructed by

McNamara & Smith).

BRENNAN J: Yes, Mr Jackson.

MR JACKSON:  Your Honours, may I hand to the Court

copies of our outline of submissions.

BRENNAN J: Yes, Mr Jackson.

MR JACKSON:	Your Honours, I note in relation to the outline of submissions that the title of the wardens
court has been elevated a little by being called
"The Wardens Court" with a capital "T"; the
title is shorter than that, simply "wardens court".

Your Honours, the case turns, in the end,

on whether section 80(4) of the MINING ACT,

to which I will come in a moment, deprived the Supreme Court of Queensland of jurisdiction to

entertain the counter-claim of the present

respondent. The course which I proposed to adopt

in these submissions is to go first to the

legislation to outline its provisions and then

to the issues in the proceedings and having

done that, to indicate why, in our submission,

the circumstances fell within section 80(4)

so that the wardens court and not the supreme

court had jurisdiction in the matter in the

first instance.

(Continued on page 3)

C2T24/2/JM	2	14/11/89
O'Grady

MR JACKSON (continuing):  Your Honours, the relevant

legislation is to found in Division II of Part X

of the MINING ACT and Your Honours have that

part, I think, extracted. Your Honours will see

that section 75(1) - the page number on which

it appears should be page 97 - empowers the

Governor in·· Council to establish wardens courts.

Succeeding provisions of the Act deal with its procedure and with related matters.

Your Honours, section 76(1) deals with the

constitution of the wardens court; section 76(2)

with representation; section 77 with its procedure
and the concluding part of the second paragraph
indicates that where the adopted provisions of

the MAGISTRATES COURT ACT are not adequate:

the practice and precedure of the

Supreme Court -

should apply. Section 78 makes it a court of record;

section 79 provides for the application and

observance of the rules of evidence:

in the trial of all issues of fact.

And, section 80, to which I will return, deals with

jurisdiction and powers. The sections which are

to be found in sections 85 through to 89 deal with

some special powers of the wardens court, and

section 90(1) gives an appeal as a right to a

district court.

BRENNAN J:  Our copies seem to terminate, I think, at

section 81.

MR JACKSON:  Your Honours, I will have copies of that given

to Your Honours in just a moment. May I just

indicate what the provisions do because I only wish

to refer to two more provisions?

(Continued on page 4)

C2T25/l/DR	3	14/11/89
O'Grady(2)

MR JACKSON (continuing): Section 90(1) gives an appeal,

as ofright, to the district court. That appeal,
by section 92(1), is to be by way of rehearing
upon the materials before the wardens court together

with such further evidence as the district court

thinks fit to allow the admission of and

section 94 enables:

A judge of a District Court ..... of his own

motion or at the request of any party to the

appeal, reserve for the opinion of the

Supreme Court any question of law arising

on the appeal -

to the district court. Your Honours, I have copies

which include those provisionsand may I hand them

to Your Honours now.

Your Honours, could I return then to the terms

of section 80? The critical provision is

section 80(4) which contains two paragraphs, the

second being a proviso. The proviso is not presently

relevant. The first paragraph of section 80(4),

which should be on the page numbered 100, at the

top, is:

With respect to matters within its

jurisdiction, the jurisdiction of the Wardens

Court shall be exclusive -

Your Honours, the words of section 80(4) are, one

notes in passing, words which are clear.	What
what are the relevant matters 1 within the jurisdiction	section 80(4) requires one to ,do is to identify
of the wardens court,"to use the words of
section 80(4).

The jurisdiction of the wardens court is to

be found in the earlier provisions of section 80

and, in particular, in subsection (1). And

Your Honours will see that the jurisdiction is

conferred in two ways: first, the first paragraph

of subsection (1) says that:

Subject to section 80A, 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.

And, Your Honours, a couple of things may be

observed about that paragraph. The first is that

it commences with the words "Subject to section 80A"

and section 80~ which Your Honours will find on

the next page, is a provision which says that:

C2T26/l/ND	14/11/89
O'Grady(2)

The Supreme Court has jurisdiction to

hear and determine any proceeding challenging
or otherwise relating to the validity of -

and then it instances the four cases. Your Honours,

the fact that there is a specific provision of
the nature of section 80A is an indication that

section 80(4), further up on the page, page 100,

is a provision which has as its intention to remove

from the original jurisdiction of the supreme court -

if I could put it that way - matters that,subject

to section 80A,would be within the jurisdiction
of the wardens court.

The second feature, Your Honours, of section 80(1) is that it speaks of the jurisdiction

of the wardens court in two ways: the first is

that it defines "jurisdiction" by reference to

"proceedings", that is actions - it uses the

expression "actions, suits and proceedings" - then

the actions, suits and proceeds - and this is the

second feature - are ones which have to arise in

relation to one of two things, one is in relation

to mining, the other is in relation to a mining
tenement.

Each of those terms is a term which is defined. The term "mining" is a derivative of the term "mine"

and Your Honours will see, at the end of section 7(1\

which is the provision containing all the definitions,

that it says specifically that:

A derivative of a term to which a meaning

is assigned by this section shall, when used

in this Act, bear a meaning corresponding

to the meaning so assigned to that term.

(Continued on page 6)

C2T26/2/ND	5	14/11/89
O'Grady(2)

MR JACKSON (continuing) :  And the relevant definition which

gives rise to	the term "mining" appears to be
paragraph (a)	of the definition of the word "mine",
which is:

"mine" - When used -

(a) as a verb, 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 or disposing of any mineral

in connexion with such winning or extraction
or disposing of waste substances resulting

from such winning or extraction;

Your Honours will see that it perhaps does not do

very much more than expand upon the concept one

would have, at any event, of the term "mine", that

is "to carry on any operation with a view to or for

the purpose of winning mineral" and so on. The

term "mining tenement", Your Honours, is defined

in the same section and Your Honours will see a

list of items, but it includes as paragraph (a)

indicates, land that is (a) comprised in a

mining lease. The term "mining tenement" is given

an expanded meaning for the purposes of section 80(1)

by the second-last paragraph of section 80(1).

Your Honours, I mention it for completeness. It

appears at page 99. It does not particularly touch

the present case, although it indicates that the

concept contemplated by section 80(1) is to be

wide in its ambit. Your Honours, I said that

section 80(1) conferred jurisdiction on the

wardens '.Court in two ways. The first was by the

first paragraph of that provision. The second is

by the enumeration of a number of matters which

are listed in the second paragraph and it goes on

to say:

Without limiting the generality of the

foregoing jurisdiction of a Wardens Court

such a court shall have jurisdiction to hear

and determine

and again it uses the expression -

actions, suits and proceedings with respect to

the following matters:-

Your Honours, it lists a number of matters which

I would ask Your Honours to look at and it refers in

particular in paragraph (g) to:

any matter arising between miners in relation

to mining on Crown land -

and so on.

C2T27/l/CM	6	14/11/89
O'Grady(2)

Your Honours will also see that the jurisdiction-

and, Your Honoars, perhaps I should say at this point

our submission will be that the counter-claim in

question, in this case, fell within each of three
provisions of section 80(1) and they are first, that

it was an action, suit or a proceeding arising in

relation to mining. Secondly, that it was an

action, suit or proceeding arising in relation to

a mining tenement and thirdly, that it was an action,

suit or proceeding with respect to a matter arising

between miners in relation to mining on Crown land.

Your Honours will see that in paragraph 2 of our

outline of submissions.

Before coming to the circumstances of the present case, could I just say one more thing about

the jurisdiction of the wardens court and Your Honours

will see that the last paragraph of section 80(1)

says:

The jurisdiction of a Wardens Court includes

jurisdiction to take cognizance of and determine

with respect to all claims and interests both

legal and equitable and in the exercise of its

jurisdiction a Wardens Court shall have power

to grant equitable remedies.

(Continued on page 8)

C2T27/2/CM.	7	14/11/89
O'Grady(2)

MR JACKSON (continuing): Subsection (2) says that its:

Jurisdiction .... shall not be ousted by

reason only of the fact that such

matter pertains to claims or interests of an equitable nature or involves the determination of title to land.

TOOHEY J: Just before you leave that preceding paragraph,

Mr Jackson, I am not clear as to the syntax of

it. It seems to - - -

MR JACKSON: It has its difficulties, Your Honour. It is

clear enough what it is intended to do, one would

think, and that is to allow the wardens court to
grant equitable remedies and to deal with

equitable claims and interests, but precisely

where the words, "both legal and equitable",
what they are intended to qualify, Your Honour,
I am not 100 per cent certain. Your Honour, why

I pass over the difficulty, if I may, is that

subsection (3) seems to perhaps cover at least much

of the same field, by saying that:

In relation to any matter within its jurisdiction or in relation to any matter which a Wardens
Court considers necessary to determine to
found its jurisdiction a Wardens Court may grant

such remedy and relief as it thinks just and

as is in accordance with law, including equitable

remedy and relief.

Your Honours will see the three paragraphs - I come

back to subsection (1) - of the enumerated paragraphs

have been repealed - I will come back to the effects

of that, if I may, in a moment.

(Continued on page 9)

C2T28/l/FK	8	14/11/89
O'Grady(2)

MR JACKSON (continuing):  Your Honours, could I go to the

circumstances of the present case? The present case was one. where the narties 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 and the

part which he was selling W8.S hehad an 85 per cent

interest and he was selling 60 per cent of the

85, leaving him with a 25 per cent interest in

the mining lease. The second part of the

agreement was that the appellant, the respondent

and a third party, whose name was Brian Crowley,

agreed to develop that mining lease by entering
into a joint venture.

Could I take Your Honours to the provisions

of the joint venture which are presently relevant
to indicate the nature of it and in particular

to indicate that the whole purpose of the joint

venture was that it was a joint venture to

exploit the mining lease in question. Your Honours,

exhibit 1 is the agreement and could I take

Your Honours to page 70 of the record. Your Honours

will see that it is there set out the recitals to

it and the recitals record, in paragraph A,

the ownership of the appellant and in paragraph B,

Crowley's ownership; paragraph C,the agreement

to sell the 60 per cent interest to the respondent;

paragraph D, an- agreement by the respondent-to

buy a 10 per cent interest from someone else;

and then 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 exploration and

mining operations on the mining lease.

(Continued on page 10)

C2T29/l/JM	9	14/11/89
O'Grady(2)

MR JACKSON (continuing): Now, Your Honours, that was the

purpose of the agreement relevantly. From there, one

goes to clause 3 which commences to effectuate that

purpose. Clause 3 is at page 73 and it says that:

The parties shall from the date that NQ

Company -

the respondent -

becomes the registered holder of the share

or interest in the mining lease acquired

by NQ Company from the first owner constitute

a joint venture for the purpose of conducting

exploration and mining operations on the

mining lease the parties having the following

participating interests -

which are then nominated.

In order to control the operations involved,

the parties agreed to set up a joint venture committee

and did so by clause 3. 1 at page 74.	Your Honours
will see that clause 3. 1 provided that:

As soon as practicable after NQ Company became

the registered holder of the share or interest

in the mining lease ..... a joint venture committee

shall be established which -

and it then says:

shall supervise the activities of NQ Company

in the conduct of exploration to be carried

out by the NQ Company and any mining operations

that may be established by NQ Company by and on behalf of the parties on the mining lease

and shall do all such other acts -

and so on. Now, Your Honours, that was the purpose

of the joint venture committee, to supervise the

operations on the lease. Could I take Your Honours, also, to clause 4. 1

at page 76. The respondent was appointed the operator

of the joint venture. Clause 4. 1. 1 - it was to prepare
the budget and the program for exploration and so on;

the parties - 4. 1.2 - were obliged to contribute to all

costs and so on.

C2T30/l/SH	10	14/11/89
O'Grady(2)

MR JACKSON (continuing):  Your Honours, clause 6.1 at page 80:

The parties -

were each to own their -

proportionate share of ore concentrates and

like products mined and produced ..... in the

same percentage as their respective participating

interest.

Clause 6.2: the costs -

of the joint venture -

were to be deducted from the products of mining.

If I could take Your Honours back to clause 5.1 at

page 78? The respondent was to:

direct, manage and supervise on behalf of the
parties and for the joint account, all work

on the mining lease and for -

that purpose was to -

have full and exclusive possession and control

of all property and assets and the mining

lease.

Economy was urged upon it by the next subparagraph and then clause 5.2 set out the items that were

to be performed - the things that were to be done by the respondent in order to conduct the various operations. That is at page 79, going over to the

top of page 80. Your Honours, page 81, clause 7.1

allowed each of the owners:

access to the mining operations.

Clause 7.2, on the same page, required the

respondent to:

supply the owners with a detailed report .....

each half year -

and clause 7.3 entitled the owners to:

examine and make copies of -

the various records and clause 7.4 required various
copies of other things to be supplied to the

other participants.

C2T31/1/DR	11	14/11/89
O'Grady(2)

MR JACKSON (continuing); Your Honours, if one goes from there

to the definition provisions of that agreement at

page 71, I would refer Your Honours to two definitions:

one is the definition of "exploration" and one is

the definition of "mining operations".

"exploration" shall mean the work of

searching for and delineating mineral

and ore deposits.

And, "mining operations", Your Honours will see

defined there, in a not very surprising way.

Your Honours, the point of all that is to demonstrate that the joint venture was a joint venture to exploit a particular mining lease which

is referred to in the schedule to that agreement -

is one lease of 30 acres. Your Honours, I will come to

the nature of the claims in the proceedings in just a

moment. May I say something about what the Full Court

held about them first, and that is this: the Full Court
held that the claims made by the appellant were within
the exclusive jurisdiction of the wardens court. It

held however that the claims made by the respondent,

on the respondent's counter-claim on the same

agreement were not within the exclusive jurisdiction

of the wardens court. Your Honours, in order to

demonstrate what is meant by that I need to go to the

nature of the proceedings for just a moment, if I may.

Could I take Your Honours to the statement of claim at page (x), and I wanted to refer Your Honours to the

claim for relief which appears in the bottom quarter

of the page. Your Honours will see that the claims

that were there made were five, in number.

(Continued on page 13)

C2T32/l/FK	12	14/11/89
O'Grady(2)

:MR JACKSON (continuing):  The claim in paragraph (a) was

a declaration that the agreement had been

determined; paragraph (b) a declaration that

the agreement had been rescinded; and thirdly,
relief that was consequential upon one or other

of paragraphs (a) or (b), that is:

An Order that the defendant do transfer back

to the Plaintiff all of its registered

ownership in -

that lease. Your Honours, those three claims

may in effect be bracketed together and the appellant failed on those claims before the

primary judge, Mr Justice Connolly. That appears,

Your Honours,at page 193, I do not need to go to it.

His Honour, however, in the first instance

held that the joint venture had never been
properly constituted in that the shares for the

participating interests originally provided for

had never come into existence and that in

consequence he made an order for sale of the

mining lease under the provisions of the

PROPERTY LAW ACT. Your Honours, that appears

at pages 196 to 201 and I do not need to- go to

the detail of that now. Your Honours, that was

the position in relation to - I should also

have said, Your Honours will have seen in paragraphs (d) and (e) on page (xi) that

declarations were sought that the joint venture agreement

had been determined and an order apDointing

statutory trustees for sale was also sought.

In relation to those claims the order was made

by the primary judge that the order appointing

statutory trustees be made.

(Continued on page 14)

C2T33/l/JM	13	14/11/89
O'Grady(2)

MR JACKSON (continuing):  The counter-claim, Your Honours,

appears at page (xvii) and the relevant claims in it

are half-way down the page. Your Honours will see

paragraphs (a) and (b) seek declarations that the

appellant's "purported rescission is invalid and of

force and effect" and a declaration in (b) that the

"purported rescission of the agreement is invalid

and of no force and effect".

Now, Your Honours, that appears clearly to have

the appellant. Your Honours, paragraph (c) was not
proceeded with. That appears at page (xvix) of the
record and paragraph (d) at page (xviii) sought an
order "that the Plaintiff and the Defendant by

been the obverse of the claim which was being made by representatives to the joint venture committee pursuant to clause 3.2 of the agreement."

Now, Your Honours, that was in effect a claim

for a specific performance of the agreement because
the appointment of a joint venture committee was
necessary before the rest of the agreement could

come into operation and the joint venture agreement

representatives had not been appointed.

Now, Your Honours, could I mention at this point

that no point was taken before the primary judge about

jurisdiction nor, in fact, was any point taken in the

Full Court on the hearing of the appeal but, as appears

from page 241, the issue of jurisdiction arose between

the hearing in the Full Court and the decision in the

Full Court because of the decision of that court in

another case. That appears at page 241 and

Your Honours will see in the first new paragraph on

that page, Mr Justice Demack sets out what occurred

in that regard.

(Continued on page 16)

C2T34/l/SH	14/15	14/11/89
O'Grady(2)

:MR JACKSON (continuing):  Now, Your Honours, what was held by

the Full Court,and the reasons for judgment are those

of Mr Justice Demack, was that the supreme court did

not have jurisdiction to entertain the appellant's

claim but that it did have jlJl'isdiction to entertain the counter-claim. Now, Your Honours, the relevant

part of the judgment on that point is at page 247.

If I could take Your Honours to the first new

paragraph on that page? His Honour said:

I have previously indicated the nature of this

action. I assume that from the point of view

of jurisdiction the essential starting point

is the pleadings, subject to the possible

abandonment of issues at the trial.

That seems to relate to paragraph 19.

Without stating the issues in detail, I am

of the opinion that the facts asserted in the

statement of claim necessarily related both to mining and to a mining tenement. The alleged breaches included reference to g10und works and

testing on the mining site which seem clearly

enough to relate to mining.

And His Honour there is referring to the facts that we relied on to establish that we had been entitled

to accept-a repudiation of the agreement.

The relief sought included both a reconveyance

of the mining lease and an order for the
appointment of statutory trustees of the lease.

In my opinion the statement of claim could not

be heard by the Supreme Court.

His Honour then said:

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 the 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. Thus, in my

opinion, the counterclaim was within the

jurisdiction of the Court, and the orders that

follow from my reasons should be made.

His Honour said that he agreed:

with the orders proposed by the Chief Justice.

C2T35/l/DR	16	14/11/89
O'Grady(2)

And the orders that were made appear, Your Honours,

at page 249. About half-way down page 249, it

was ordered:

in relation to the counterclaim, that the

Respondents ..... perform the Joint Venture

Agreement by each designating ..... their

representative to the Joint Venture ConnnittPe.

Now, Your Honours, in our submission, there are some difficulties with the approach taken by

His Honour in the passage to which I have just

referred. Your Honours, the first difficulty, we

would submit, is that the claims made by the

plaintiff, namely, the appellant, included claims

that the agreement was at an end. The defendant,

on the other hand, the respondent, denied that the

agreement was at an end.	We sought a declaration
that it was at an end.	They sought declarations
that it was not.	Your Honours - and the facts

being the same - why, one would ask hypothetically,

should one of those claims be within,and the other

be without,jurisdiction?

Your Honours, the second aspect is this:

His Honour said, at page 247 about point 8, that:

both -

the -

asserted and ascertained facts -

included -

no reference to mining or to mining tenements.

(Continued on page 18)

C2T35/2/DR	17	14/11/89
O'Grady(2)

MR JACKSON (continuing): Might I take Your Honours back to

the facts relied on in support of the counter-claim

which appear at page (xv). Your Honours will see

that paragraph 11 asserts that the respondent gave notice that two representatives had been appointed

to the joint venture committee and called upon the

appellant and Crowley to do so, but we had not done

so. Your Honours, if I could pass over paragraphs 12

through to 16, one sees in paragraph 17, at page (xvii)

that:

Since the neglect or refusal of the Plaintiff

and Crowley to appoint two'representatives

to the joint venture committee, the

Defendant has incurred exploration costs in

relation to the lease.

And then, paragraph 18:

The Defendant intends to undertake mining

operations on the said lease and to incur

costs in relation thereto.

Well now, Your Honours, His Honour said, at page 24 7 point 8:

Both asserted and ascertained facts

related to matters that involved no

reference to mining or to mining

tenements.

Your Honours, with respect, the three paragraphs to

which I have referred, seem clearly to involve a

reference to activities which are mining and to activities

which involve mining on the mining tenements! Your Honours ,

the third fea~e, in our suomission, is that if one looks at the

provisions of the joint venture agreement, it is

clear, we would submit, that whether the precise

ambit of the expressions in the first paragraph of

section 80(1) and in paragraph G of the second

paragraph be treated as wide or somewhat narrower,

then the present case is one in which the counter-claim

fell directly within the three provisions to which

I have referred. (Continued on page 19)

C2T36/l/FK	18	14/11/89
O'Grady(2)

MR JACKSON (continuing):  Your Honours, in that regard

we would submit that it is right to say that

the counter-claim was one whicr. was a proceeding

arising in relation to mining as defin~d. It -

was a proceeding arising in relation to a

mining tenement and it was a proceeding with

respect to a matter arising between miners

in relation to mining on Crown land.

Your Honours, the operation to be given

to section 80 has been before the upreme

ourt in Queensland on a number of occasions

and I should refer Your Honours to the cases

which there have been. The first was a single

judge decision, It was that of Mr Justice Connolly

in GEORGE COMANOS & ASSOCIATES PTY LTD V

FINGOLD RESOURCES PTY LTD (NO 1), (1988) 2 Qd R 631.

Your Honours, in that case His Honour held that

an action to enforce an agreement to assign a

14 per cent interest in certain mining tenements

was an action which arose in relation to a

mining tenement in terms of section 80(1) and

he held that the wardens court thus had
exclusive jurisdiction by reason of section 80(4).

Your Honours, the relevant part of the reasons

for judgment is at page 633.

(Continued on page 20)

C2T37/1/JM 19 14/11/89

O'Grady(2)

MR JACKSON (continuing):  I am sorry, Your Honour, I do not

know if I have another copy of that.

BRENNAN J: No, Mr Jackson. It looks as though som:: of Their Honours

have got copies of the original judgment.

MR JACKSON:	Of the master?
McEUGH J:	Of the master, yes.
BRENNAN J: Of the master, yes.	That is not the one that

you are looking to?

MR JACKSON:  No, Your Honour, I think - I really do not know

whether it was overruled or not - yes, it was,

I think, Your Honour. Your Honours, could I just

say this, that - Your Honours, I do have one more

copy, if that is of any assistance.

BRENNAN J: That might be some help.

MR JACKSON:	At page 633, His Honour, after referring to the various provisions of section 80(1), went on to
say at about line 6:

It cannot be seriously disputed that an action

to enforce an agreement to assign an interest

in a mining tenement is an action which arises

in relation to a mining tenement. It follows

that, by virtue of s.80(4) the action is within

the exclusive jurisdiction of the Wardens

Gour t.

His Honour went on to say that

What is said to deprive the Mining Wardens

Court of jurisdiction ..... is the fact that

by Act No 49 of 1974 -

three of the subparagraphs of section 80(1) has

been deleted. Those paragraphs are set out on

page 632 and they are paragraphs (e), (f) and (h).

His Honour went on to say: 

It is argued that the repeal of para (h) in particular deprived the Wardens Court of

jurisdiction with respect to any matter pertaining

to an agreement relating to mining tenements.

(Continued on page 21)

C2T38/1 /ND	20	14/11/89
O'Grady(2)

MR JACKSON (continuing):  And he recorded the argument

the other way. And then said about line 24:

The proper approach to the construction of a

provision such as s.80(1) was considered by

the Full Court of a Supreme Court of New South

Wales in EX PARTE PROVERA ..... a regulation

making power was stated in broad and general

terms. Particular matters in relation to

which regulations might be made were then

specified, it being expressly stated that the

prescription of the particular matters was not

to affect the generality of the power previously

stated. It was held by the Full Court that a

regulation which was not authorised by the

general power, the equivalent of the first

paragraph of s.80(1) here, could not be

justified by reliance on the particular

provisions in the equivalent of the second

paragraph here.

And His Honour quotes from the judgment of

Chief Justice Street. Your Honours, one might doubt,

with respect, whether the view expressed by

Chief Justice Street is one that would be thought

to be of universal application today, and I will

come back to that in a moment, if I may.	And
His Honour then says, about line 49:

EX PARTE PROVERA does not decide the point

with which I am concerned but it provides

guidance as to the proper approach. The

particular point decided was that a regulation

could not be sustained by resort to a

particular instance if that particular instance

itself went beyond the general regulation-making

power. What it does for present purposes is to

emphasise the paramountcy of the general power
and the fact that the particular instances

are not to be regarded as extending the

general power.

If the matter was to be governed by strict

logic and proper construction that should be
the end of the matter. However, strict logic
may be an uncertain guide to the construction
of a provision such as s.80, which vests in a
not wholly suitable tribunal ..... the whole of the

jurisdiction exercised by Superior Courts of

law and equity in relation to any mining tenement.

He records some of the history of it.

C2T39/l/CM	21	14/11/89
O'Grady(2)

MR JACKSON (continuing):  Now, Your Honours, the result clearlv

is that His Honour took the view that the ambit of	·
the first paragraph was not affected by the
alterations to the succeeding paragraphs.

Your Honours, the second decision was a decision

of the Full Court in Queensland in GRAHAM V SUIMIN

CO (AUSTRALIA) PTY LIMITED, (1989) 1 Q:l R 291.

There it was once again held that a claim for specific performance of an agreement for the sale

of a mining lease was within the exclusive

jurisdiction of the warden's court. That appears,

Your Honours, at page 291 at the bottom of the page and going over to page 292 where the provision is

set out. Your Honours, Mr Justice Kneipp, who

. .	delivered the principal judgment~ his discussion of
the matter appears at line 4 on page 293.
Your Honours, it goes through to about line 44
and, about line 37, His Honour says:

The repeal of the three sub-paragraphs was a

repeal of surplasage, leaving the section with

its previous meaning. One naturally looks for

some explanation. An obvious explanation is

that it was intended to deprive the Wardens Court

of jurisdiction in relation to the matters

referred to in sub-paragraphs (e), (f) and (h)

but that the breadth of the opening provisions

of s.8O(1) was overlooked. If that was the

intention, then obviously the matter needs

further attention.

In my view this type of action is within the exclusive jurisdiction of the Wardens Court,

so that this Court lacks jurisdiction.

(Continued on page 23)

C2T4O/l/DR	22
O'Grady(2)

MR JACKSON (continuing):  Your Honours, the issue was again

before the Full Court in an unreported decision of

CENTRAL QUEENSLAND SPELIOLOGICAL SOCIETY INC V

CENTRAL QUEENSLAND CEMENT PTY LTD, a decision given

on 7 March 1989. If I could go to the judgment of

t1r Justice Thomas, first of all, at page 6 of his

reasons for judgment - it should be the first

judgment in the bundle Your Honours have - His Honour

took the view that proceedings t..ere rot pra::03Jin;s arisirg in relatim

to mining, unless they arose directly in relation

to mining as such, and at page 6, commencing

about point 2, His Honour, referring to the primary

judge in that case, said:

In the present case, Demack J. took

the view that the word "arising" ought to

be interpreted so that the fact of mining or

the existence and title to the mining
tenement needs to be essential or necessary

to the decision. His Honour did not consider

that proof of mining or of the existence of the tenement was necessary to the essential

issues of the present litigation.

Your Honours, I should say that the particular case

was a suit to restrain a company from destroying caves

by mining and it was held that that did not attract

the jurisdiction of the mining wardens court because

the claim essentially was one, as will appear later

down page 6, which was "to restrain an apprehended

breach under the FAUNA CONSERVATION ACT." The caves

contained fauna that those seeking the injunction

wished to preserve.

(Continued on page 24)

C2T41/l/SH	23	14/11/89
O'Grady(2)

MR JACKSON (continuing): His Honour went on to say,

at about point 4:

With respect, I agree. 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 ..... 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, in our submission, may go a

little too far. All one is seeking to do is to

paraphrase and thereby give the meaning of the

words in the onening pg.rt of subsection (1). But

the present case in our submission, is,whatever

the test, one falling within the terms of the

opening paragraph of subsection (1).

His Honour goes on to say:

The direct and innnediate object of this

suit is to restrain an apprehended breach

under the FAUNA CONSERVATION ACT. The

effect of the suit upon mining activity

is legally incidental. Similar considerations

apply in actions for damages for personal injuries suffered in the course of mining

activity.

Your Honours, in that regard one should perhaps

note in passing that if one looks at section 80,

and in partfcular at the second paragraph of it

which enumerates the various classes, it is,

with respect to His Honour, a little difficult to

see,unless one treats the word "damages" as meaning

property damage, that a claim by a miner in a	stope injured by a rock fall would not be, in
terms of paragraph (d) a demand for damages
arising out of the carrying out of mining.

(Continued on page 25)

C2T42/l/JM	24	14/11/89
O'Grady(2)

MR JACKSON (continuing):  Your Honours, one might ask, for

example, why would - as would seem to follow from

His Honour's observations, why would it be that

his claim for damage to his boot be within the

warden's jurisdiction but not his claim for the

injury to his leg.

Your Honours, His Honour then goes on to say,

at the bottom of the page:

Unfortunately greater difficulty exists in

restricting the ambit of proceedings arising

in relation to mining tenements and leases,

as GRAHAM V SUIMIN (above) illustrates.

And then His Honour goes on to say there is a need

for legislative remedy.

Mr Justice Derrington, at page 1 of his reasons for judgment - Your Honours they follow immediately

after Mr Justice Thomas whose judgment is, I think,

30 pages - and at the bottom of the first page

of Mr Justice Derrington's reasons for judgment

His Honour says:

there must be a real and direct

relationship between the subject matter of

this action and mining or a mining tenement -

His Honour went on to say, in the remainder of that

paragraph, that prima facie there did seem to

besuch a connection in that case and I would refer

Your Honours to the last sentence of that paragraph.

In the first sentence of the new paragraph on

page 2, he said:

The issue of relationship is a matter of degree of directness, and there will be

many cases where the effect on mining of the

action which is brought will be clearly

incidental.	A claim for damages for personal
injury said to have been caused by
negligence or breach of statutory duty in
relation to mining will not come within the
Mining Warden's exclusive jurisdiction because
it is incidental only that mining was involved
and the action which is brought would have
no direct effect upon that activity.

Your Honours, perhaps beauty is in the eye of the beholder, in a sense, but if one is the one under

the rock fall it would be difficulty, in our

submission, to say the action for damages did not

arise in relation to mining.

C2T43/l /ND	25	14/11/89
O'Grady(2)

MR JACKSON (continuing):  His Honour goes on to discuss

the point further at page 3 and at the end of

that paragraph about half-way down the page,

His Honour says:

This reasoning must lead to the result,

which I reach with some reluctance, that

in the present case the degree of

relationship between the subject matter

of the action and mining is not such as to bring the former within the terms of the MINING ACTS.

And, Mr Justice de Jersey, a third member of the

court, at page 2 of his reasons for judgment appears

also to adopt a kind of characterization test

where His Honour says in the second paragraph on

page 2:

that there is a clear relationship between

the proceedings and mining. But it is 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.

And, His Honour said that in a specific performance

case - this is about six lines from the bottom that:

the tenement is at the heart of the

proceedings, which must therefore be

regarded as "arising in relation to" the

tenement. Here, the threatened destruction

of the cave is at the heart of the

proceedings. That the destruction would

be the result of mining activity -

was essentially incidental.

Your Honours, I expect to be about another

15 minutes.	Would that be a convenient time,
Your Honour?

MASON CJ:  The Court will adjourn now until 2.15 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

C2T44/1/JH	26	14/11/89
O'Grady(2)
UPON RESUMING AT 2.17 PM:
BRENNAN J: Yes, Mr Jackson.

MR JACKSON:  Your Honours, before I proceed, may I deal a little

further with the question Your Honour Justice Toohey

asked me this morning about the last paragraph of

section 80(1) and, Your Honours, the somewhat

tortured language used in it does not easily result

in a solution, but may I endeavour to suggest one to

it. Could I start by saying, Your Honours, that if

one goes first to the first paragraph of section 80(1),

Your Honours will see that the way in which jurisdiction

is expressed is as being "jurisdiction to hear and

determine" all actions, and so on. Your Honours,

bearing that in mind, one then goes to the relevant

paragraph and, in our submission, it appears to say

this:

The jurisdiction of a Wardens Court -

one inserts parenthetically, •"that is the jurisdiction

to hear and determine" -

includes jurisdiction to take cognizance

of and determine -

which appears to be, in our submission, an expression

which is synonymous with, to "hear and determine", and

then, if one pauses there it goes on:

The jurisdiction of a Wardens Court includes

jurisdiction to take cognizance of and determine -

and then -

with respect to all claims and interests both

legal and equitable -

and so on. So it is really speaking about the

ambit of the expression "hear and determine".

Your Honours, I do not know that I -

TOOHEY J:  If you pretend that the words "with respect to" are not

there, you probably will reach the same conclusion

MR JACKSON:  Indeed, Your Honour, yes, I was just going to say that,

but the words are not easy, but that seems to be the result

that is intended, and the way in which I was suggesting was
the way one gets to it by looking at all the words.

Your Honours, could I return to the topic with which I
was dealing before lunch, and it was this: I was suggesting
that in, for example, the QUEENSI.AND SPELIOI.OGICAL SOCIEIY case,

meni,ers of the Full Court appear to have adopted a test of rerroteness

or characterization in relation to the application of the mrds

in section 80(1).

C2T45/l/FK	27	14/11/89
O'Grady(2)

MR JACKSON (continuing):  Your Honours, we would recognize,

of course, that the exp""."essior~s in that section,

for example, 'a.risin~ in relation to', do involve

some question of remoteness and some question of

characterization. For example, if a person were

injured by a truck carrying uranium ore on a
public road, the person's action for damages may

well not be regarded as arising in relation to

mining although there would be a connection with

mining. There are questions of fact and degree

involved. But the one observation one makes in

relation to the approach taken by the Full Court

in the SPELIOLOGICAL case is this, that, as is

apparent, Your Honours, in all characterization

matters sometimes particular sets of circumstances

do bear two faces and an action may arise in

relation to mining as well as being capable of

characterization as arising in relation to

something else.	The tests are not mutually
exclusive.

Your Honours, underlying what was said by the

Full Court is the notion that clear words are necessary to take away the jurisdiction of a

supreme court. Your Honours, the most commonly

cited observation in that regard is that of

Viscount Simonds in PYX GRANITE CO LTD V MINISTRY

OF HOUSING AND LOCAL GOVERNMENT, (1960) AC 260

and, Your Honours, in particular at page 286.

I just asked that Your Honours be supplied with

the particular page because the remainder of the

case does not matter but Your Honours will see,
about point 6, where His Lordship says the

principle is:

It is a principle not by any means to be

whittled down that the subject's recourse

to Her Majesty's courts for the determination

of his rights is not to be excluded except

by clear words.

And, Your Honours, in relation to that,

whilst that proposition is readily admitted, the

legislature is entitled to choose which of

Her Majesty's courts shall have jurisdiction in the

first instance.

McHUGH J:  But there is another rule, is there not and that

is that clear words are needed to cut down the

jurisdiction of a superior court?

MR JACKSON:  Your Honour, I was going to say that, that

indeed it is true and I would simply say two things

about it. Could I come to that second, Your Honour?

But the first is that if one looks at the particular

passage which is referred to and which Your Honours

will find in, say, - referred to in the

C2T46/l/DR	28	14/11/89
O'Grady(2)

CENTRAL QUEENSLAND SPELIOLOGICAL SOCIETY case.

This is not a case where recourse to the courts

is taken away, the legislature is entitled to

choose which court shall be the one to hear

a matter in the first instance and to start,

if I could put it this way, at a lower, or a cheaper,

or a quicker level.

(Continued on page 30)

C2T46/2/DR	29	14/11/89
O'Grady(2)

MR JACKSON (continuing):  Your Honours, the second aspect of

it is that there is, as Your Honour Justice McHugh

has said, a general principle that clear words are
necessary to take away the jurisdiction of a superior

court but, of course, section 80(4) could not, with

respect, be clearer.

Your Honours, I said earlier and this is the

last topic with which I wish to deal, that I would

come back to the observati0ns whic~ r, 1nrc n11otnri

½y Mr Justice Connolly from EX PARTE PROVERA.

Your Honours, it will no doubt often be the case that

the words "without prejudice to the generality of
the foregoing" which appear prior to the statement

of a list of matters and after the statement of

a general proposition, it will often be the case

that those words are intended to ensure that the

fact of enumeration of the particular matters does

not have the consequence of restricting the ambit

of the preceding general words. But, Your Honours,

that will not always be the case. The words may,

in some cases, produce the ambit but, indeed, what
they may also do is to indicate that whatever be
the precise ambit of the general words, particular

cases are to be within the iurisdiction or whatever

be the proposition being advanced.

May I give Your Honours references to two cases in which expressions such as "without limiting the

generality of the foregoing" have been dealt with,

one a decision of the Court; the other is an

observation of Your Honour Justice McHugh in the
Court of Appeal in New South Wales. The first of

them is I.EON FINK HOLDINGS PTY LTD V AUSTRALIAN FILM

COMMISSION, (1979) 141 CLR 672. In the reasons for

judgment of Justice Mason with which the Chief Justice

agreed, His Honour dealt with the expression at

page 6 7 8 and going on.

(Continued on page 31)

C2T47/1/SH	30	14/11/89
O'Grady(2)

MR JACKSON (continuing): His Honour,having referred to the general principle that if there are words dealing with a specific case and also words which

generally might apply, then the	specific tend to
overrule relevantly the general ,	went on to
say at the bottom of the page:

the presence of the words "without limiting

the generality of the foregoing" is an

important distinguishing feature of s.21.

The critical question is whether there is

any implied restriction upon the general

power to be derived from the presence of par. (a),
when there is a clause which is designed to

preserve the generality of the unqualified

power according to its terms.

His Honour discusses the question generally. Going

down, if I could take Your Honours to the end of

the second new paragraph on page 679, His Honour

then says:

From time to time provisions will be inserted

for more abundant caution to guard against
the possibility that the general might be

read as not including the particular.

And His Honour goes on to say:

There are strong grounds for thinking that the

specific power given by par.(a) of s.21 was

conferred in order to dispel any doubt -

about a particular matter and so on. And His Honour's

reasons continue through that paragraph and go on

to the next page and virtually to the end of

His Honour's judgment and His Honour concludes the

third last paragraph his reasons for judgment by

saying:

To my mind this is not a sufficiently solid

basis for restricting the general power or

denying its availability, when it is followed

by a clause whose purpose is to ensure that

the presence of the particular powers does not
erode the generality of the initial grant of power.

Your Honours, which is really in a sense, the other

side of what was put in EX PARTE PROVERA.

C2T48/l/CM	31	14/11/89
O'Grady(2)

MR JACKSON (continuing): Your Honours, the other case to

which I wish to refer was COO:t1A-MONARO SHIRE COUNCIL

V :t1ANNERING, (1986) 7 NSWLR 258 an~ Your Honours,

one does not need to go to the detail of the case
but the relevant passage is in the judgment of

Your Honour at page 262 between letters C and E and Your Honour goes on to say, at letter D:

The object of inserting particular powers

or purposes after a general power is to ensure

that the general power covers the particulars.

It is not to cut down the general power.

And then Your Honour referred to the observations

of Justice Mason in LEON FINK HOLDINGS.

Your Honours, what emerges, in our submission,

is really that expressions such as "without limiting

the generality of the foregoing" cannot be ultimately

decisive in determining the effect of the succeeding

words. One must look at all of the words together

and when one looks in the particular case - looks
in this case, one sees, in our submission, that

in some respects the provisions which were excised

from the Act in 1974 did appear to go beyond what

might otherwise be thought to have been the ambit

of the opening paragraph of subsection (1).

Your Honours, those provisions are set out in the judgment of Mr Justice Demack at page 241.

Your Honours, could I just say that what one -

if one is looking at the amendment to the Act,

the consideration of the provisions that are removed

really leads one to no greater conclusion, in our

submission. than that what should be done is to
read the Act in its amended form without any
preconception about the legislative purpose behind
the amendment because, Your Honours, it is

difficult to extract a uniform purpose -

Your Honours, I hope to be able to demonstrate

that fairly quickly.

(Continued on page 33)

C2T49/ 1 /ND 32 14/11/89

O'Grady(2)

MR JACKSON (continuing): Could I take Your Honours to

the bottom of oage 241? Your Honours, the

three provisions-which were omitted were

paragraphs (e), (f) and (h). Paragraph (e)

referred to:

any question relating to the formation
or dissoultion of a partnership for the

purpose of mining or prospecting.

Your Honours, if I could pause there, it may be

a question whether that issue, or those matters or actions with respect to those matters, do or do not still fall within the first paragraph

of section 80(1). But leaving that aside,

paragraph (e) went on to say:

and any other matter pertaining to such

a partnership -

that being a partnership for the purpose of mining

or prospecting.

Now, Your Honours, the words "actions, suits

and proceedings" with respect to "any other

matter pertaining to such a partnership", without

there being a requirement in respect of that

part of (e), that it be limited to proceedings

between the parties to the partnership, conferred

a power or jurisdiction which was prima facie

very wide, in our submission, would go beyond

in some respects that conferred by the opening

paragraph of section 80(1).

If I could pass over paragraph (f) for a moment, paragraph (h) would also, Your Honours,

have the same effect in this regard that it would

confer jurisdiction on the wardens court to hear

and determine actions, suits and proceedings

with respect to:

any matter pertaining to a trust, agreement,

tort, or dispute of any kind relating to

mining tenements, mining or prospecting -

and, Your Honours, that in some respects might well,

in our submission, go beyond the first paragraph.

(Continued on oage 34)

C2T50/l/JM	33	14/11/89
O'Grady(2)

McHUGH J:	But you have to say that an action for damages
in tort arising out of a mine disaster is caught
by section 80(1), do you not?

MR JACKSON: Your Honour, I do not have to say it, with respect.

McHUGH J: No, I know, but, I mean, it would have to be - - -

MR JACKSON:  Your Honour, we have some difficulty in, with

respect, submitting that it is not.

McHUGH J:	Yes.
MR JACKSON:	And it is caught either by subsection (1) or

by paragraph (d). Your Honour, why is it not an

action for damages arising out of the carrying

on of mining? In a case like that, Your Honours,

the relationship is of the clearest kind. A person,

who is, for example, blown up by - killed by an

explosion where he is working, unless one adopts

what must, with respect, be a somewhat artificial

limitation - a somewhat arbitrary, I should say,

limitation upon the concept, that would seem to

be at the heart of it.

TOOHEY J: Unless you somehow link debt or damages together,

because they are followed by the words "arising
out of "or" made in respect of" and in the sequence
in which they appear they read rather curiously,

"debt arising out of'or"damages made in respect

of". Whether they have been juxtaposed - - -

MR JACKSON:  Your Honour, there is no reason, with respect,

though, why one would treat the words "made in
respect of" as applying only to the damages with

the words "arising out of" not applying to damages.

One could have any demand for debt arising out,
any demand for debt made in respect of, any demand
for damages arising out of~ or any demand for damages

made in respect of.

T00HEY J: It might not be difficult though to read that down

to damages relating to the carrying out of the

mining activity as opposed to some personal injury

suffered by a person happening to be working in

the mine or not working in the mine at the time.

(Continued on page 35)

C2T5 l /1 /ND	34	14/11/89
O'Grady(2)

MR JACKSON:  Your Honou~ it is possible to do that if one

draws a line between personal injury and

property damage but ,Your Honour,that is a line

which has some difficulty in being drawn. If,

for example, what happened was that in the mining

operations being carried on, an explosion in the

mine caused a building nearby or a building which
might indeed be on top of the mining tenement, if

the mining tenement did not go to the surface, then

if it caused the building to collapse one would

think that would be an action for damages arising

out of the mining.

TOOHEY J:  And yet one would be surprised to find that

within the exclusive jurisdiction of the wardens

court, would it not?

MR JACKSON:  Your Honour, with respect, no. The jurisdiction

of the wardens court is really that which - Your Honour,

I do not mean to give a facetious answer in saying this,but the jurisdiction of the wardens court is

really that which section 80(1) sets out and - - -

TOOHEY J: Undoubtedly, but as a matter of observation, it

might be surprising to find it within the

exclusive jurisdiction of the wardens court.

MR JACKSON: Your Honour, can I just say this. If one looks

at the succeeding provisions of section 80 and one

looks, for example, at section 89, the warden has

got a power to deal with a plaint summarily, if the

parties agree, so that it might well be thought

that the warden is in a position, if the parties

agree, to deal with matters like that quickly. I

mean they do not all have to be substantial cases,

but they may be. So too, Your Honour, section 87,

a warden can order a survey of a mining tenement and Your Honour if one looks at section 81(2)(3) one sees a predilection towards having cases - - -

TOOHEY J: I am sorry, which - - -

MR JACKSON: 81(2)(c),I am sorry,Your Honour, I said (2)(3).

81(2)(c) one sees a predilection towards cases

being heard in effect where they occur, if I can
put it loosely, in particular classes of case and

so too, Your Honour, in section 81(2)(b) - - -

TOOHEY J:  Mr Jackson, could I just ask you two questions. One

is, what is the right of appeal from the wardens court?

MR JACKSON:  Your Honour, it is to the district court with

a right, either in the judge of the district court
of his own motion or at the request of a party to
reserve the opinion of the supreme court a question

of law arising on the appeal.

C2T52/l/01	35	14/11/89
O'Grady ( 2)

TOOHEY J:	Could you just give us the section.
:MR. JACKSON:	Yes I will, Your Honour. Section 90(1) gives

an appeal as of right to the district court.

TOOHEY J:  And open-ended in the sense it is not restricted

to questions of law?

:MR. JACKSON:  N0, Your Honour, it is open-ended and indeed,

Your Honour, the nature of the appeal is section 92(1) which is to be by way:

of rehearing and upon consideration of the

record of proceedings before the Wardens Court

and, if the District Court thinks fit, any

further evidence admitted by it -

and Your Honour, there is some limitation upon the power to admit further evidence which is contained

in the last paragraph of section 92(1).

TOOHEY J:  Thank you.

:MR. JACKSON:  Your Honour, where one goes from the district court

is provided for by section- 94, which is that the

judge may, as I have said:

of his own motion or at the request of any

party to the appeal, reserve for the opinion

of the Supreme Court any question of law

arising on the appeal.

(Continued on page 37)

C2T52/2/CM	36	14/11/89
O'Grady(2)

TOOHEY J:  Mr Jackson, the other question was, can you tell

us what led to the introduction of section 80A?

MR JACKSON:	Your Honour, generally speaking, there had been a number of cases in which there had been a question
whether the supreme court or the wardens court had
jurisdiction to deal with the subject-matter referred
to in paragraphs(a), (b), (c) and (d) of section 80A(l),
and whether the Crown had to be a party to such
proceedings.  Now, prima facie, the law had been that
an attack upon the validity of a Crown grant would
only bind in terms of the decision the parties to it other than the Crown unless the Crown were a party, and that aspect of it is provided for by subsections (2) and (4).

TOOHEY J: Yes, thank you.

MR JACKSON:  Your Honour, I am sorry I cannot give the detail

of it at the moment in more than that anecdotal

fashion, but I could provide Your Honour with the

information a little more precisely if Your Honour

wished it.

TOOHEY J: That is probably enough, thank you.

MR JACKSON:  Your Honours, what I was going to say in relation

to paragraph (h) was that it went rather beyond

what one might have thought prima facie was covered

by the first paragraph of section 80(1), and the

third - I had passed over paragraph (f), and the reason

for passing over paragraph (f), Your Honours, was that

on any view one would think paragraph (f) was something

that was covered by the opening words of the first

paragraph of section 80(1). Now, Your Honours,

although paragraph (f) has been repealed, the provision

to which I referred a moment ago, section 81(2)(c)

remains in the Act, framed on the assumption that the

wardens court will still have the jurisdiction that
was otherwise specifically referred to in paragraph (f),

and in that regard, Your Honours, Your Honours will

see 81(2)(c) says: 

Where the plaintconcerns the right to any mining tenement or share therein or the right to mine -

and so on, and then, Your Honours, about in the fifth

line, where the plaint concerns:

any money claimed in respect of .....

contributions or calls made or apportioned

by or between any persons for the purpose

of conducting the business of mining or

prospecting -

which appears to reflect part of the former paragraph (f).

C2T53/l/FK	37	14/11/89
O'Grady(2)

Your Honours, the point of referring to that

is that it seems difficult to ascribe to the

legislature the intention by repealing paragraphs (e),

(f) and (h), taking those matters completely out of
the jurisdiction of the wardens court when

section 81(2)(c) remains and contemplates that some of

them will be in, and, Your Honours, all one can say, in

our submission, is that the effect of the amendments really is that one should look at the Act as amended

to determine what the jurisdiction is and, Your Honours,

we would submit finally, that it may be that in respect

of particular cases, perhaps cases for damages for

personal injuries, perhaps others, that one draws a

line and says that particular cases cannot have been

intended by the legislature to be within the

jurisdiction of the wardens court in the first

instance.

(Continued on page 39)

C2T53/2/FK	38	14/11/89
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MR JACKSON (continuing): But, Your Honours, a case such

as the present where what was sought by the

counter-claim was first of all to say that
the agreement to mine in combination the one

lease had not been rescinded on the one hand;

on the other hand, seeking an order that we
do take the step necessary to bring about

mining of one lease in common is not an action

in respect of mining or in respect of t~e mining

tenement. Your Honours, those are our submissions.

BRENJ'lAN J:  Thank you, Mr Jackson. Mr Harrison.

MR HARRISON:  May it please the Court, may I pass up

our outline of submissions?

·BRENNAN J: Yes, Mr Harrison.

MR HARRISON:  As the Court pleases. The Court will have

seen from the outline of submissions that it

is our submission that the wide general words
in the first parag~aph of section 80(1) are
to be limited in the way we have outlined, that

is, limited in a way that relates them to

matters having a direct and, we would say, some
type of physical relationship with the land in

towards that conclusion from examining the origins of this particular section because there

respect of which the mining lease is granted.

has been some slight changes as the sections

have gone through the two previous versions in
the way it has been constructed and we would seek

to refer Your Honours, to that end, to section 31

of the GOLD FIELDS ACT 1874 and section 103

of the MINING ACT	1898.	They were mentioned
on our list, but I am not certain that Your Honours would have had them conied, so we have copies here.	.	-

BRENNAN J:  Thank you.

MR HARRISON: 

Your Honours, the first provision dealing

with jurisdiction of the mining wardens court
was section 31 of the Act of 1874 which replaced

New South Wales legislation that had been repealed

by that. Your Honours will see in the last three

lines of section 31 after the court is established,

the section continues:

and shall have -

that is referring to the court -

jurisdictionto hear.and determine all actions

suits claims demands disputes and questions

which may arise in relation to mining.

Jumping forward, the expression which may arise

C2T54/l/JM	39	14/11/89
O'Grady(2)

was in fact repeated in the 1898 Act and has

been converted to "arising in relation to" in

the current legislation which led

Mr Justice Demack, and we would support that,

to indicate a requirement of a closer

connection to the mining tenement than one would

otherwise have required if the words simply

"may arise" or if the words "in relation to mining"

had been used. The 1874 Act made no reference,

however, to mining tenements.

In the 1898 Act in section 103 the expression

"which may arise in relation to mining" is repeated,

but then the section goes on, in the fourth line:

or in any way relating to any mining tenement.

(Continued on page 41)

C2T54/2/JM	40	14/11/89
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MR HARRISON (continuing):  We would submit that there is an

intentional departure there in the absence of a

repetition "may arise in relation to". In other

words, we would submit that the first part of

the expression which may arise in relation to

mining requires a relatively close connection

between the actual cause. It is a cause which

may arise in relation to the mining and matters
coming within the second part of the provision

giving the jurisdiction.

May we pause here to deal with the

expression "mining tenement" which in both the

1898 Act and in the current Act is defined - it

is in section 3 of the 1898 Act - to refer not

to the leasehold interest that we are concerned

with but to the land comprised in the leasehold

interest. In section 3 of the 1898 Act:

"Mining tenement:' - Any land held under a

mining lease or application therefor -

which, in our submission, is some indication of

a focus :ing on a physical connection with the

land rather than on the legal relations between

parties that may be affected. Then, when one comes

to the current Act, one finds a somewhat similar

expression. The words "which may arise" have

been transposed to "arising in relation to".

arising in relation to mining or to any

mining tenement.

The change there being that the word "arising"

now qualifies "mining tenement" which, if our

thesis is correct, would result somewhat in a

narrowing of the scope of the jurisdiction which, we would submit, is then dealt with,

at least in part, by the second paragraph of the

subsection.

TOOHEY J: Well, just before you leave that, Mr Harrison,

you say it leads to a narrowing but that, perhaps,

is only if you leap over the word "mining"?

MR HARRISON:  The submission is based on the use of the

word "arising" which we are proposing to develop

a little later on. That is, that a matter - when

the legislation refers to a matter "arising in

relation to a mining tenement" it really requires

that the subject-matter of the dispute - I am

sorry, I should go back to mining. When a matter

arises in relation to mining, it is some aspect

of mining that is required to be the subject-matter

of the dispute and that the expression does not

C2T55/l/DR	41	14/11/89
O'Grady(2)

cover litigation which in some way relates to

mining. In other words, we would submit that that

is the legislature's purpose in employing that

phrase in contradistinction to the reference in

the earlier Act, simply to a matter relating to

something. In other words, it is our submission

that a closer connection is required where the

legislation specifies that it be a matter arising

in relation to the question, whether it be mining

or the mining tenement meaning land comprised in the

mining lease.

Now, the subsection then goes on to depart

from the limitation that we would infer from"arising'

in the second paragraph and simply gives the

jurisdiction here with respect to a number of

. . enumerated matters.

(Continued on page 43)

C2T55/2/DR	42	14/11/89
O'Grady(2)

MR HARRISON (continuing): It is our submission that the

form of that provision is not to be understood to be an explanation of the phrase "arising in relation to mining or to any mining tenement" but

is drafted as an independent conferring of jurisdiction

in respect of those matters, enumerated in the use of
the words, "such a court shall have jurisdiction to

hear and determine actions with respect to the

following matters" which we, as I have said, say

is somewhat wider than "arising in relation to"
and then it lists the various matters there, some
of which may well, of course, fall within the first
paragraph but some of which, in our submission,

obviously do not, including in particular the

repealed paragraph (h) which refers to "any matter

pertaining to an agreement" - I am sorry - "relating

to mining tenements, mining or prospecting' and

so on.

That, in any event, is the course that the

legislature took in constructing the present provision,
the final sep in relation to jurisdiction being the
enactment of section 80A which, as Your Honours have
heard, was introduced to dispose of some doubts as

to the proper court in relation to the disputes of

a kind mentioned there, being types of dispute which,

it may well have been argued, came within the exclusive

jurisdiction of the mining wardens court. In some

cases, for example, under section 80(l)(a), there

could well have been a dispute between, for example,

owners of different mining tenements who, perhaps,
claimed some overlapping of the areas of their

interest in which a challenge arose as to the

validity of the grant of one or another. There may

well have been disputes of other kinds that involved

the question of the actual validity of the dispute

but which may have come within a paragraph such as

section 80(l)(a).

TOOHEY J: Well, the way you put it and you may well be right

is that any question of title to a mining claim or

one of the other forms of interest that are mentioned

in section 80A would fall within the exclusive

jurisdiction of the supreme court.

MR HARRISON: 

Yes, notwithstanding that it arose in the course

of a disoute that otherwise would have fallen within
one of the lettered paragraphs of 80(l)(a).

BRENNAN J: 

Why is it that the word "arising" in the first

paragraph of section 80 does not mean "occurring in

the future" or "in future eventuating"?

MR HARRISON:  It is the context in which it occurs because

it is in the context of a present dispute. One would

not, in the nature of things, be conferring jurisdiction

C2T56/1/SH	43	14/11/89
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except in respect of a dispute that had already

arisen and, in that sense, we would submit, it does

not refer to a possible future dispute.

BRENNAN J: Well, then, given that, what is the precise

limitation, if it is susceptible to articulation,which

it introduces?

MR HARRISON:  There have been a number of attempts, none of

which are definitive. I do not think one can really

say anybody has attempted to express it in a definitive

manner. In the early decisions under the GOLD FIELDS

ACT, in SOUTH NEW ZEALAND GOLD MINING CO V BULLEN,

(1881) 1 QLJ 50, there are some referencesthat do

not take us very far but they show some limitation.

That was an action in which the plaintiff was

challenging the validity of a purported forfeiture

of shares in a gold mining company.

(Continued on page 45)

C2T56/2/SH	44	14/11/89
O'Grady(2)

MR HARRISON (continuing):  The action was commenced in the

district court which depended on section 82 of

the GOLD FIELDS ACT which conferred the mining

warden's jurisdiction on a district court that

was held in a gold field. So the district court

had jurisdiction only if it was a matter that came

within the jurisdiction of the mining warden.

The references are principally in the course of

argument. On page 51, in the bottom right-hand

corner,	the Chief Justice:
The question is this - Does the

jurisdiction of the Warden extend to anything more than the physical dealing with the land?

which, we must concede, is not expressed to be

definitive.

On page 53, in the left-hand column, two-thirds of the way down, the Chief Justice says:

This Act deals with mining. THE COMPANIES

ACT deals with the members of a company and

their rights as members. The corporation

is merely an artificial body, its existence

..... is regulated by THE COMPANIES ACT .....

In relation to the physical possession of
the mine THE GOLD FIELDS ACT of 1874 has given

equitable jurisdiction to the District Court -

and then, finally, just below half-way down the right-
hand column, the Chief Justice says:

They are two distinct branches of the

law - THE COMPANIES ACT and THE GOLD FIELDS

ACT, and the question in this case was one

which ought to have been dealt with by the

proper tribunal which has jurisdiction for

settling the rights of members of companies

amongst themselves, for adjudicating upon

the constitution and existence of companies,

and that statute is THE COMPANIES ACT of 1863,

and it was under that statute that the complainant

in this case should have taken his proceedings.

It seems to me THE GOLD FIELDS ACT merely

gives to the District Court judge the limited

jurisdiction the Warden has under the statute -

That is the extent of dealing with the problem there.

In ELMSLIE V MACKAY, the Brisbane Courier Reports

of 5 March 1890 - perhaps again not terribly
enlightening but the action concerned a call on shares
in a mining company. Perhaps one can go to the

second-last paragraph in the left-hand column:

C2T5 7 /1 /ND	45	14/11/89
O'Grady(2)

Sir S.W. Griffith said that the appellant

contended that a mining court had no

jurisdiction in civil actions except in matters

relating to mining, and that a dispute between members of a company was not a matter relating

to mining. This had already been decided

by the -

I am sorry, I cannot read it.	In any event, in
BULLER's case.

BRENNAN J:	between members of a company was not a matter
relating to mining. This had already been
decided by the court in BULLER's case.
MR HARRISON:	We have not been able to find a BULLER's case

but think that that is a reference to BULLEN's

case which is the last case I mentioned. And the

only	other passages are a little below half-way
down	the right-hand column, again in argument:

Sir S.W. Griffith, in reply, said it

was quite clear that this was not an action

in respect to any matter relating to mining.

That was decided in the case of BULLER.

[The Chief Justice:	"No, it does not relate
to mining."]

(Continued on page 47)

C2T57/2/ND	46	14/11/89
O'Grady(2)

TOOHEY J:  Mr Harrison, would it make any difference to the

operation of section 80 if, instead of the words

"arising in relation to" the section read "relating

to"?

MR HARRISON:  It is our submission that it would, in that, it is

our submission that the words "arising" do result

in requiring, in effect, that the mining matter be the
subject-matter of the dispute, and not merely that

the matter, in some way, have some mining consequences.

Your Honour Mr Justice Brennan asked, in effect

whether there had been any torrnulations of this:

My learned friend, Mr Jackson, read to Your Honours

passages from CENTRAL QUEENSLAND SPELIOLOGICAL SOCIETY

in which each of Their Honours was really grappling

with the particular problem. Their Honours certainly

were not relying on the word "arising" as I have relied

on it, but they were attempting to define the required

closeness of relationship.	I have been using the
expression·	"subject-matter" which I have taken,

in fact, from the judgment of the High Court in

1 NC	INDUSTRIES LIMITED V BMW (AUSTRALIA) LIMITED
(1983) 151 CLR 575 at 581.	The legislation certainly

is not in pari materia other than the use of the

word "arising". The question there was whether the

matter arose under a law of the Commonwealth.

The litigation concerned entitlement to a quota allowed
to persons under the CUSTOMS ACT, and trust was sought
to be established in relation to a particular quota.

The question was whether the appeal to the Privy Council

was excluded by reason of section 39(2) which excluded

the appeal in respect of matters arising under a law

of the Commonwealth, and the Court at page 581 said

this:

It is true to say that a matter does not

arise under a law made by the Paliament merely

because the interpretation of the law is

involved. On the other hand, a matter may

arise under a law of the Parliament although

the interpretation of validity of the law is

not involved.	The conclusion reached by
Latham C.J. in -

BARRETT's case -

and stated in a passage that has often

be cited with approval, is "that a matter

may properly be said to arise under a

federal law if the right or duty in
question in the matter owes its existence
to federal law or depends upon federal law

for its enforcement -

and so on. A little further down:

C2T58/l/FK	47	14/11/89
O'Grady(2)

if the contract of trust is in respect
of a right or property which is the

creation of federal law, the claim

arises under federal law. The subject

matter of the contract or trust in such

a case exists as a result of the federal

law.

(Continued on page 49)

C2T58/2/FK	48	14/11/89
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MR HARRISON (continuing): It is our submission that some

such limitation as a reference to the

subject-matter of the litigation is to be taken

to be inferred from the particular exrression

that we have been referring to.

Your Honours, Mr Justice Demack, at oage 246,

also drew an inference of the limitation from the change in terminology from "may arise" to

"arising". His Honour says, about half-way down

the page:

Clearly the critical words are "arising

in relation to mining or to any mining tenement".
It will be recalled that the GOLD FIELDS ACT

1874 spoke only of matters "which may arise

in relation to mining". The MINING ACT of

1898 spoke of matters "which may arise in

relation to mining, or in any way relating

to any mining tenement". In my opinion,
the change must have been intentional.

As Isaacs J. observed in AUSTRALIAN COMMONWEALTH

SHIPPING BOARD V FEDERATED SEAMEN's UNION OF

AUSTRALIA (1925) 36 CLR 442, at p. 450,

"To say that it may arise is not

the same as saying that it does arise,

which is the meaning of 'arising'."

Having referred to a number of earlier

decisions under s. 40A of the JUDICIARY ACT,

he said, at p.451,

"These decisions then establish that

'arising' means necessary for the

decision on the ascertained or asserted

facts of the case."

Here, where the section is ousting the

Supreme Courts' jurisdiction in matters of

private rights, it is appropriate to use this

ascertained or asserted facts mustnecessarily same definition. In other words, the relate to mining or to a mining tenement.

We would, with respect, adopt His Honour's inference from the change in terminology.

McHUGH J:  But what does he mean by "facts"? After all,

the section says it is the "action which must arise

in relation to mining".

MR IT.ARRISON: 

We would read His Honour as referring to

the facts which are the foundation of the cause
of action.

McHUGH J: 

He does not seem to give any weight to the words

"in relation to" which are words always used to

C2T59/l/JM	49
O'Grady(2)

denote the widest possible connection between

two subject-matters.

MR HARRISON:  Yes, but when one couples them with

"arising in relation to" that, in our submission,

narrows the tunnel of vision down to, as it were,

spotlight the particular matter out of which they

are said to arise. There is not really an

appropriate narrow word, in our submission, to

couple with "arising" and the combination of the
words, in our submission, does result in that
narrowed sense that certainly does not exist, we

would concede, in relation to "relating" when it

is used by itself.

McHUGH J: Is "in relation to" narrower than "out of"?

MR HARRISON:  I am not sure that I can answer that,

Your Honour. In this context we would submit

that both expressions, if one had "arising out

of" or "arising in relation to", both expressions

would have much the same meaning in any event,

particularly when one then has a later part of

the subsection which is not qualified by the

word "arising".

(Continued on page 51)

C2T59/2/JM	50	14/11/89
O'Grady(2)

MR F..ARRISON (continuing):  We make the further submission,

Your Honours, that the legislature in repealing

the three paragraphs that have been mentioned

already did show an intention to exclude the

matters dealt with in them from the jurisdiction

of the warden. My learned friend referred

Your Honours to the passage in the judgment in

GRAHAM V SUIMIN,(1989) 1 Qd R 291, dealing with

that, at page 293, in which His Honour Mr Justice Nygh says at about line 39:

One naturally looks for some explanation.

An obvious explanation is that it was intended

to deprive the Wardens Court of jurisdiction

in relation to the matters referred to in

sub-paragraphs (e), (f) and (h) but that the breadth of the opening provisions of s.80(1)

was overlooked. If that was the intention,

then obviously the matter needs further attention.

It is our submission that if the Court does see that

that was the intention of the legislature, that it
should give effect to that intention, notwithstanding

that it may think that the draftsman who drafted

the legislation may not have expressed himself

perfectly and that when one looks at the legislation

by itself, if may well have a different effect. In

other words the Court should not treat the act of

amending as of no effect. And in support of

that proposition we would rely on a passage in

the judgment of Sir Owen Dixon in GRAIN ELEVATORS BOARD

V DUNMUNKLE CORPORATION,(1946) 73 CLR 70 and

especially at pages 85 to 86. The question there was

whether certain land held by the Grain Elevators

Board, which was a statutory corporation, was land

the property of His Majesty, so as to bring the matter
within a rate exemption and most of the judgments
are simply concerned with a matter of construction

of the Act establishing the Grain Elevators Board.

However, as appears from Sir Owen Dixon's judgment

at page 85, there had after the time of the relevant

events been amendments to the INCOME TAX ACT of

Victoria, which had introduced certain exemptions,

but which limited them in certain ways, and

His Honours says:

In a case in pari materia, viz. COMMISSIONER

OF THE GOVERNMI:.:NT SAVINGS BANK V TEMORA.

MUNICIPAL COUNCIL, an example will be

seen of an express provision that the
corporation should hold property vested in it

for and on behalf of the government. This,

it was held, created property in the Crown.

No such provision is contained in the GRAIN

ELEVATORS ACTS, nor do they imply any such consequence. On the contrary, they appear

to intend to constitute a body for the conduct

C2T60/l/CM	51	14/11/89
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of what may be regarded as a public utility,

as a separate responsible entity, owning its

own undertaking both in law and in equity.

The draftsman of the legislation recognized

that this was so when he considered it necessary

by s.44 to add the Board to the list of agencies

protected from income tax by s.21 of the

INCOME TAX ACT 1928 (Viet.). Whether, at the

time, the legislature overlooked liability

for municipal rates or decided against exempting

the Board cannot, of course, be known.	But in
1942 a specific exemption was conferred.

And His Honour goes on to outline that exemption

and then over the page:

Although the provision was passed too late

to apply to the present case, I think that it

may be considered on the question of

interpretation. It would be a strange result

if we were to interpret the prior legislation

as giving a wider exemption than that conferred

by the provision so that the express exemption

it makes would prove unnecessary and the

qualifications it places upon that exemption

would be futile.

So that it is in our submission a legitimate approach

to the matter of construction of this provision to

consider that the legislature intended, in our

submission, to take cases such as the present,

outside the jurisdiction of the wardens court.

(Continued on page 52)

C2T60/2/CM	52	14/11/89
O'Grady(2)

MR HARRISON (continuing):  Your Honour Mr Justice Dawson, in

fact, applied the DUNMUNKLE decision in

HUNTER RESOURCES V MELVILLE, (1988) 164 CLR 234.

That was concerned with whether, in relation to the marking out of a mining tenement prior to the making

of an application, there was any scope for the

application of the doctrine of substantial compliance

such as to enable a valid application to be made

when the tenement marked out was larger than the

maximum permitted by law. Your Honour Mr Justice Dawson,

h construing the relevant legislation, had regard

to a report that resulted in amending legislation.

The report, itself, having referred to the question

that the Court was considering and reconnnending

against any variation of the existing legislation

and Your Honour regarded that as proper to be taken

into account in construing the legislation, that is,

the original legislation. At page 254 the judgment

reads:

In GRAIN ELEVATORS BOARD V DUNMUNKLE CORPORATION

Dixon J. expressed the view that an amending

Act might be taken into account in the

interpretation of the prior legislation, at

least to avoid a result that would render the

amending legislation unnecessary or futile.

Then the judgment goes on to deal with the

slightly different point under consideration there.

But, we would submit that the Court here should not ignore what, we submit, was the obvious intention

of the legislature in repealing the particular
provisions of section 80(1), that is, to take those
matters out of the jurisdiction of the mining wardens

court and restore them to the jurisdiction of the

supreme court.

My learned friend referred to the matter of the reluctance of the courts to treat legislation

as depriving the superior courts of jurisdiction.

This is certainly a case, we would have to concede,

where the jurisdiction of the courts have not been

entirely excluded. What has been done here with the

mining warden is, in effect, to set up what may

possibly be regarded as a specialist tribunal and

confer certain specialist matters on that tribunal
but the same reasoning, in our submission, would

apply to lead a court to construe, if possible,

legislation which might be taken to confer non-specialist

matters on that court so as not to deprive the

ordinary superior courts of jurisdiction.

In other words, it is one thing to confer

specialist jurisdiction in relation to strictly

mining matters on a wardens court; it is another

thing altogether, in our submission, to take away

C2T61/l/DR	53	14/11/89
O'Grady(2)

the jurisdiction of the supreme court in respect of

matters in which it could not be suggested the

mining warden had any particular expertise at

all and, in fact, would appear to be unsuited to deal with in many of the cases which would go to

a warden if our friend's submissions are upheld.

BRENNAN J:  Would there not be many cases in which ministerial

consent to the transfer of mining interests would be
conditioned on the structure of the transferee's

arrangements, inter se?

(Continued on page 55)

C2T61/2/DR	54	14/11/89
O'Grady(2)

MR I-TARRISON:  Yes, I am not sure t:hat I can give evidence to that effect,

but it is certainly tr.e sort of tring t]:1at one ·would tf'ink

the legislation allows the rrrinister to consider in dealin? with

transfers of mining leases.

BID.1NAN J:	And the mining wardens court has a ftmction to perform in
relation to a~~rovals of transfers?
MR HA.JzyJSON: To the best of my knowledge, no, Your Honour.	It is concerned

with the auestion of the recorrrnendation of original grm1ts of

leases. I think I am correct in sayin~ tJ-,.qt, Your. Honour.

BRENNAN J:	But not in relation to transfers.
MR HARRISON:	Your Honours, my learned friend sug~ested

that the counter-claim in tbe present case had,

let me put it in general terms, a significant
connection with mining matters and he referred
to paragraphs 17 and 18 at page (xvii) of the

record. Paragraph 17 reads:

Since the neglect or refusal of the

Plaintiff and Crowley to appoint two

representatives to the joint venture
c0Im11ittee, the Defendant has incurred
exploration costs in relation to the
lease.

18.      The Defendant intends to undertake

mining operations on the said lease and

to incur costs in relation thereto.

It is our submission that those two paragraphs

in fact do not bear on the relief which the

respondent obtained in the Full Court, that

is specific performance of the promise "to

appoint representatives to the joint venture

committee". Those paragraphs, in our submission,

are directed to the relief in paragraph (c)

which was abandoned and that was a declaration

that under certain other provisions of the joint

venture agreement the interest of the appellant

had fallen as a result of the expenditure of

moneys by the respondent. So that really the

only paragraph of the three that my learned

friend relied on that remains is paragraph 11

which, in our submission, relates purely to the

giving of notice to appoint representatives and
contains no direct reference to or involvement

of any mining matter.

It would seem, with respect, in our submission,

that when Mr Justice Demack, at page 247, said

of the respondent's counter-claim:

It was simply a claim about personal obligations

under a contract.

C2T62/l/JM	55	14/11/89
O'Grady(2)

His Honour was not referring to the claims for

declarations to the effect that the contract

remained on foot, but was directing his attention,

in our submission, to the claim for an order that

the representatives be designated. That is the

first two claims in the defence and counter-claim

at page (xvii), that is:

A declaration that the Plaintiff's purported

rescission of the agreement is invalid -

and -

A declaration that ..... Crowley's purported

rescission of the agreement is invalid -

were not what His Honour was directing his mind

to. They were really the obverse side of the

claims that the plaintiff had made and failed on

and that His Honour was, in our submission,

referring to the counter-claim on which an order

was made. Those are our submissions, if the

Court pleases.

(Continued on page 57)

C2T62/2/JM	56	14/11/89
O'Grady(2)
BRENNAN J:	Thank you, Mr Harrison.	Mr Jackson.

MR JACKSON:  Your Honours, dealing first with our learned

friend's submissions in relation to the manner

in which section 80 should be construed, and in

particular to the use of the expression "arising",

the first thing is that one notes in relation to
the second paragraph that the word "arising" does

not appear at all in any relevant sense because

what it says is that the:

Court shall have jurisdiction to hear and

determine all actions, suits and proceedings -

with respect to and then:

(g) any matter arising between miners -

and, Your Honours, it is speaking of there the matter

arising between miners as distinct from the action,

suit or proceeding.

Your Honours, our learned friends did not,

as we understood it, address any particular

submissions to that paragraph of section 80(1)

and, in our submission, it has a clear application

to the present case.

Your Honours, coming back to the first

paragraph of section 80(1), an action, suit or
proceeding one would think arises at the time when

the action, suit or proceeding is commenced.

Your Honours, one then looks to see whether that

action, suit or proceeding is one which can be

regarded as being in relation to mining or to a

mining tenement.

The change in wording between the 1898 Act and the 1968 Act, Your Honours, may simply have

been to make the expressions overall more harmonious,

as it were, because the 1898 Act had not used the

expression "all actions, suits and proceedings

which may arise" it had used a rather larger expression

"all actions, suits, claims, demands, disputes

and questions which may arise in relation to mining"

and, Your Honours, we would submit that

section 103 and we would submit that the inferences

sought to be drawn by Mr Justice Demack and by

our learned friends simply is not open in the light

of the particular change.

(Continued on page 58)

C2T63/1 /ND	57	14/1 /89
O'Grady(2)

MR JACKSON (continuing): Your Honours, so far as the amending

Act of 1974 is concerned, that has had some effect.

What it has done has been to limit the jurisdiction of the wardens court by excluding those cases which otherwise would have fallen within parts of (e) and (h)

which went beyond the opening paragraph.

In answer to Your Honour Justice Toohey earlier,

I perhaps should have said one other thing in relation

to why particular jurisdictions would be given to the

wardens court. It may well have been thought that

they were simply, in some respects, not just a

question of it being a specialized jurisdiction but

a jurisdiction that was cheaper and quicker.

Your Honours, finally, in relation to a question

asked by Your Honour ·J1,.1.stice· Brennan, section 37

is now the provision which deals with the approval

of transfers and it does not seem to involve the

warden and there is a regulation 31 which does give

the warden's office some function but it simply is
that a transfer of a mining lease can be lodged for

registration at the warden's office.

BRENNAN J: Is there anything which empowers the minister to

refer questions to the warden~ court?

MR JACKSON:  Your Honour, I think the answer to that is not in any relevant sense, if I can put it in that way.

BRENNAN J:  Yes. What I was wondering was whether or not

the wardens court is the quasi-curial arm of the

administrative process for ensuring ministerial
control of those who have interests in mining

leases on Crown land.

MR JACKSON:  Yes. Your Honour, the answer, I think, is no.

A mining warden has two capacities, if I can put it

that way; one is of an administrative capacity and

the other is a judicial capacity.	The difference
between the two in relation to the MINING ACT was

dealt with in the Full Court of the Supreme Court

of Queensland in a decision which is, I think,

REG V THE MINING WARDEN OF HERBERTON EX PARTE LA GRANDE,

and I think Your Honours will find it in about (1971)

QWN.

(Continued on page 59)

C2T64/1/SH	58	14/11/89
O'Grady(2)

MR JACKSON (continuing):  What the case was was one where

the application for a mining lease had been lodged

with the mining warden and the mining warden was

proposing to conduct the hearing which would result

in his recormnendation to the minister whether the

mining lease should or should not be granted.

Proceedings were started in the wardens court for

declarations that the applications for leases

did not comply in various respects ie the PEGGING

case did not comply with the requirements of the

Act and regulations, and the Full Court in that

case held that the mining warden, his decision upon

the application for a lease L1 his administrative

role, of course, had no binding effect upon the

wardens court in its judicial function, and,

Your Honour, the point about that is simply that

the case draws a clear distinction between the

two functions of the warden.

BRENNAN J: That seems to be reflected; is it~ in the appeal

provisions in section 91?

MR JACKSON:  Yes, Your Honour, yes indeed. Now, Your Honour,

there -are some provisions of the Act, Your Honours,

I think, that allow them, in addition to the

provision that allows the warden to recommend upon
ap~lications for a mining lease, to have some other
functions which are administrative. Your Honour,

I am afraid I could not give references to them quickly, but, Your Honour, ~egulation 115 has been referred t:a and what it says is that, "an owner or manager of a mine, a mine works, battery or other

apparatus comprised in a mining tenement shall,
whenever required to do so by the warden, furnish

the Director-General of the Department of Mines,

through the warden, with a report particularizing

operations carried out or treated, together with

such other information as the warden may require",

and there is provision, Your Honou½ in

regulation 110 for a warden to determine

applications for variation of rights of access

conferred in relation to section 58A which deals

with access to a mining tenement over land which is

not part of the mining tenement and there are

matters of that kind. The warden has a number of

administrative functions, Your Honour, it would

take - I would have to rsive Your. Honours a list.

(Continued on page 60)

C2T65/1/FK	59	14/11/89
O'Grady(2)
BRENNAN J:	Yes.	No doubt various and perhaps not very

logical but is there anything to which the mining

warden's jurisdiction whether administrative or judicial

might relate in relation to the arrangements

inter se of those who have interests in mining

tenements?

MR JACKSON:  Your Honour, save insofar as section 80 deals

with it - - -

BRENNAN J:	Yes, I appreciate that.
MR JACKSON:	- - - I think the answer is "no", Your Honour.

Of course, section 80 does, in its specific

provisions, contemplate that matters of that kind

will be within its jurisdiction. Your Honour,

could I give - I have given already a particular

reference to paragraph (g) which says specifically:

any matter arising between miners in relation

to mining on Crown land -

and such matters, one would think, would at least

include matters that were questions of agreement

or whether there had or had not been an agreement,

what its terms were, whether one party was or was
not performing the terms of that agreement. And

that is prefaced, Your Honour, by the expression

"with respect to" that matter.

BRENNAN J: Just one further question, Mr Jackson, in relation

to mining on Crown land as distinct from mining

on private land, is it a provision of the MINING

ACTS that transfers of interests of a proprietary

kind are required to be subject to the minister's

consent in the case of Crown land but not in the

case of private land?

MR JACKSON:  No, Your Honour. I must say I thought it was

in respect of both.

BRENNAN J:  Both?

MR JACKSON:  The landowner's functions in relation to private

land are, shall we say, limited, Your Honour, by

the mining on private land provisions to, in effect,

a right to compensation and, of course, a right

to object to the grant of the lease in the first

place. Your Honour, section 37, I have referred

to before, as being the provision that required

the approval of the minister. The mining on private

land provisions, Your Honour, commence at

section 108 and section 108 is a definition section.

One then goes to section 109 which says that:

C2T66/1/ND	60	14/11/89
O'Grady(2)

Save where a contrary intention appears

in this Part, the provisions of this Act .....
apply in respect of private land, and mining
tenements situated in private land as if such

land were Crown land and such titles and

tenements were granted or issued or were

situated in Crown land but subject always

to all modifications prescribed by this Part.

The parts, Your Honour, that are excepted do not

appear to include the provision which to which

I have just referred and section 110 makes all

minerals for practical purposes, whether situated

in or under private land or Crown land, the property

of the Crown. Your Honours, I do not think there

is any provision that would prevent section 37

applying to it because the overall provision of
the Act in relation to private land is to make
it, in effect, Crown land but give a right to
compensation for disturbance not for the minerals

themselves.

Your Honours, the last thing I want to say

is this: in relation to our learned friend's

submissions concerning the pleading, the whole

nature of clause 3. 1 of the agreement, if one

reduces it to its narrowest part, is that it is the agreement between miners about how they are going to mine.

BRENNAN J:  Thank you, Mr Jackson. The Court will consider

its decision in this matter.

AT 3.40 PM THE MATTER WAS ADJOURNED SINE DIE

C2T66/2/ND	61	14/11/89
O'Grady(2)