Peregrine Mineral Sands Pty Ltd v Wentworth Shire Council

[2012] NSWLEC 237

Land and Environment Court

New South Wales

Medium Neutral Citation:

Peregrine Mineral Sands Pty Ltd v Wentworth Shire Council [2012] NSWLEC 237

Hearing dates:

19 October 2012

Decision date:

19 October 2012

Jurisdiction:

Class 3

Before:

Sheahan J

Decision:

1. Pursuant to s 149B of the Civil Procedure Act 2005, matter no 30881 of 2012 in this court is ordered to be transferred to the Supreme Court of New South Wales for disposition in conjunction with matter number 2012/299456 currently before the Equity Division of that court.

2. Each party is to pay its own costs of the applicants' Notice of Motion filed 11 October 2012 and heard today.

3. Directions 2 and 3, made by Biscoe J on 28 September 2012, and the listing of the matter on 2 November 2012, are vacated.

4. Exhibit A1 is returned to the applicants.

5. The copies of Ms Keady's affidavit of 18 October 2012, and of its annexures, are to be returned, and the respondent is directed to file in this court the original of that affidavit, and to ensure that its Statement of Facts and Contentions dated 15 October 2012 is filed and associated with this court's file, before the transfer is effected.

6. This court's file is remitted to the Registrar to effect the transfer of the matter to the Supreme Court.

Catchwords:

PRACTICE AND PROCEDURE: transfer of proceedings to the Supreme Court

Legislation Cited:

Civil Procedure Act 2005
Local Government Act 1993
Western Lands Act 1901

Cases Cited:

Lend Lease GPT (Rouse Hill) Pty Ltd v The Hills Shire Council [2010] NSWLEC 130; (2010) 175 LGERA 169

363 Military Road Mosman Pty Ltd v Owners Strata Plan 72814 [2012] NSWSC 263

Pierce v Minister Administering the Water Management Act 2000 [2012] NSWLEC 33

Transport Construction Authority v Parramatta City Council [2010] NSWSC 1168

Category:

Procedural and other rulings

Parties:

Peregrine Mineral Sands Pty Ltd (1st Applicant)
Imperial Mining (Aust) Pty Ltd (2nd Applicant)
Probo Mining Pty Ltd (3rd Applicant)
Wentworth Shire Council (Respondent)

Representation:

Mr A Galasso, SC
with Mr R Carruthers, barrister (Applicants)
Mr D Robertson, barrister
with Ms P M Blackadder, barrister (Respondent)
Baker & McKenzie (Applicants)
Buckworth Keady Lawyers Pty Ltd (Respondent)

File Number(s):

30881 of 2012

Judgment

1. These are Class 3 proceedings brought by three companies engaged in mining operations on Western Lands Act 1901 perpetual leases near Pooncarie in North Western New South Wales. The companies are Peregrine Mineral Sands Pty Ltd, Imperial Mining (Aust) Pty Ltd, and Probo Mining Pty Ltd.

1. Their Class 3 application was filed on 29 August 2012, and, on its face, appeals against seven rate notices issued on 31 July 2012. Such appeals are brought pursuant to s 574 of the Local Government Act 1993, but the applicants specifically plead that the section does not apply to "the circumstances which have occurred" in the matter. Those circumstances are outlined in their Statement of Facts and Contentions, filed on 26 September.

1. The Class 3 application was returnable before the List Judge on 28 September, on which occasion Biscoe J made directions, one of which foreshadowed the filing and listing of the applicants' motion for an order transferring these proceedings to the Supreme Court pursuant to s 149B(2) of the Civil Procedure Act 2005.

1. That motion is the subject of this judgment, and, clearly, both sides are anxious for this question to be resolved quickly. Accordingly, I have dealt with the motion as a matter of urgency.

1. There are in fact two relevant Supreme Court matters currently on foot, one in the Common Law division and one in the Equity Division. It is the equity matter (2012/299456) which involves all the same parties as these Class 3 proceedings, and it seems to be common ground that if I order the transfer it will be to that matter that this one will be attached. If I decline the transfer, the applicants ask for these Class 3 proceedings to be stayed until the equity matter is determined, or until further order.

1. The respondent's position is that the two matters should come together and proceed together, but in this court - which would require a transfer order from the Supreme Court - rather than in the Supreme Court. The Council has put before me a draft Notice of Motion and supporting affidavit for an application to be made to the Supreme Court for such a transfer, and I have also been shown its draft pleadings in defence of the equity matter. A cross claim for rates in that matter is also before the court in draft.

1. It appears that Council has already filed a Statement of Facts and Contentions in these present proceedings, which is consistent with the pleadings filed or proposed in the Supreme Court, but the original has not yet reached the court file.

1. The Council wishes to rely on this court's specialist expertise and quicker listing record. If I make no transfer order, the respondent opposes the stay application .

1. There is also a dispute about the directions which remain in effect in this matter, namely those requiring the applicants to file and serve all their evidence by 26 October, and for the matter to have a further directions hearing on 2 November. If I make the transfer order, directions will become a matter for the Supreme Court.

1. The other Supreme Court matter involved (2011/259950) is a Common Law claim by the Council, brought in August 2011, for rates it says are owed by a fourth company, Bemax Resources Ltd. Bemax is now known (since September 2012) as Cristal Mining Australia Ltd, and the three applicant companies are wholly owned subsidiaries of Cristal.

1. Relevantly the three applicants also formed and own a joint venture company called Pooncarie Operations Pty Ltd (in the proportions Peregrine 50%, Imperial 25%, and Probo 25%). The three Class 3 applicants and Pooncarie are the plaintiffs in the equity proceedings.

1. The companies claim across the pleadings in all three proceedings that they do not owe the Council the rates assessed and claimed, as Pooncarie, as agent for the other three companies, entered into an agreement with Council in April 2005, under which, they contend, the rates payable were to be capped, basically until the mining operations were concluded, until 30 June 2026, unless terminated earlier in accordance with the terms of the agreement.

1. Capped amounts have been paid on account of rates. I was asked to note also that the agreement obliged the companies to construct a haul road which would be dedicated to Council eventually, for public use. Council argues that the capped amount was payable only until the affected lands were officially valued. Resolving that issue will require the construction of the agreement.

1. The companies assert that their liability is governed by the terms of the road agreement, and its underpinning representations, and that s 574, therefore, does not apply. They have sought a declaration to such effect in the equity matter. Allegations of misleading or deceptive conduct contrary to trade practices/fair trading legislation, and claims of estoppel are involved, as well as the construction issues, and some constitutional claims.

1. As Council relies on s 574, the applicants commenced the Class 3 proceedings to protect its position in case its stand on the section does not prevail. The attitude of the applicants in this respect was made clear to the Council by letter at the time of filing the Class 3 application.

1. I discussed s 574 in my judgment in Lend Lease GPT (Rouse Hill) Pty Ltd v The Hills Shire Council [2010] NSWLEC 130; (2010) 175 LGERA 169.

1. The equity and Land and Environment court proceedings are clearly "related" in the sense of the term as used in s 149B, which is designed to avoid multiplicity of proceedings.

1. Within the Supreme Court it could also be argued that the two matters brought in that court are "related" as well. That factor speaks in favour of the transfer of this "precautionary" third proceeding to the Supreme Court, as sought by the applicants.

1. The specialist aspects of this court do not weigh strongly against the transfer in the prevailing circumstances of the litigation as a whole, and I am fortified in my conclusion to order the transfer by the reasoning of Pepper J in Pierce v Minister Administering the Water Management Act 2000 [2012] NSWLEC 33, of Gzell J in Transport Construction Authority v Parramatta City Council [2010] NSWSC 1168, and of Ward J in 363 Military Road Mosman Pty Ltd v Owners Strata Plan 72814 [2012] NSWSC 263, to all of which cases counsel referred me during argument.

1. I, therefore, make the following orders:

1. Pursuant to s 149B of the Civil Procedure Act 2005, matter no 30881 of 2012 in this court is ordered to be transferred to the Supreme Court of New South Wales for disposition in conjunction with matter number 2012/299456 currently before the Equity Division of that court.

2.   Each party is to pay its own costs of the applicants' Notice of Motion filed 11 October 2012 and heard today.

3.   Directions 2 and 3, made by Biscoe J on 28 September 2012, and the listing of the matter on 2 November 2012, are vacated.

4.   Exhibit A1 is returned to the applicants.

5.   The copies of Ms Keady's affidavit of 18 October 2012, and of its annexures, are to be returned, and the respondent is directed to file in this court the original of that affidavit, and to ensure that its Statement of Facts and Contentions dated 15 October 2012 is filed and associated with this court's file, before the transfer is effected.

6.   This court's file is remitted to the Registrar to effect the transfer of the matter to the Supreme Court.

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Decision last updated: 19 October 2012