Queensland Decor Aggregates P/L v Cadman

[1997] QSC 133

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane  No 1972 of 1994

Before the Hon Justice White

[Queensland Decor Aggregates P/L v Cadman & Ors]

BETWEEN:
  QUEENSLAND DECOR AGGREGATES PTY LTD
  ACN 011 069 284
  Plaintiff
AND:
  MELTON JOHN CADMAN
  First Defendant
AND:
  ROBERT ERIC TANEY
  Second Defendant
AND:
  JOHN ROSS SMITH
  Third Defendant
AND:
  TONY McGRADY, MINISTER FOR
  MINERALS & ENERGY
  Fourth Defendant
AND:
  PAUL BRESLIN, DIRECTOR-GENERAL,
  DEPARTMENT OF MINERALS & ENERGY
  Fifth Defendant

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 04/08/1997

CATCHWORDS:     MINING LEASE APPLICATION - whether invalid or nullity - Mineral Resources Act 1989 - whether furtherance of mining lease application should be restrained by injunction - misdescription of background land in prospecting permit - no notice to local authority of amended application - allegations of non-compliance with Mineral Resources Act by mining registrar - whether mining warden's recommendation to the Minister flawed - observations on special expertise of mining wardens courts - jurisdiction of Supreme Court.

Mineral Resources Act 1989 Parts 3 and 7

Counsel:Mr D Logan for plaintiff

Mr N Samios for the first, second and third defendants

Mr P Roney for the fourth and fifth defendants

Solicitors:Huddleston Solicitors for the plaintiff

Stephen Comino & Cominos Solicitors for the first, second and third defendants

Crown Solicitor for fourth and fifth defendants

Hearing Dates:  6, 7 8 December 1995

IN THE SUPREME COURT

OF QUEENSLAND

No 1972 of 1994

[Queensland Decor Aggregates P/L
v. Cadman & Ors]

BETWEEN:
  QUEENSLAND DECOR AGGREGATES PTY LTD
  ACN 011 069 284
  Plaintiff

AND:
  MELTON JOHN CADMAN
  First Defendant

AND:
  ROBERT ERIC TANEY
  Second Defendant

AND:
  JOHN ROSS SMITH
  Third Defendant

AND:
  TONY McGRADY, MINISTER FOR
  MINERALS & ENERGY
  Fourth Defendant

AND:
  PAUL BRESLIN, DIRECTOR-GENERAL,
  DEPARTMENT OF MINERALS & ENERGY
  Fifth Defendant

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 04/08/1997

The plaintiff ("QDA") seeks a declaration that a certain mining lease application held and being pursued by the first, second and third defendants to a mining lease is invalid or a nullity because it was not made in compliance with the provisions of the Mineral Resources Act 1989 ("the MR Act"). QDA further seeks injunctions restraining each of the first, second and third defendants from proceeding in furtherance of that mining lease application; restraining the fourth defendant ("the Minister") from recommending to the Governor in Council that a mining lease be granted to the first, second and third defendants in respect of the land the subject of the mining lease application; and restraining the fifth defendant (the Director-General of the Department of Minerals and Energy) ("the Director-General") and ("the Department") from advancing the mining lease application. Other orders are sought which affect the advancement of the mining lease application.
The Mineral Resources Act
           The form of the MR Act when the events the subject of these proceedings took place may be found in Reprint No 2 where the sections are linked numerically to the numerical Parts of the Act, for example, Part 7 concerns mining leases and the sections within that part are sequentially numbered 7.1 through to 7.70. The MR Act was reprinted with renumbering as Reprint No 4 as at 22 December 1995 wherein the sections proceed sequentially from s.1 through to s.418.  A table at the back of Reprint No 4 cross-references the earlier style.  Counsel used Reprint No 2 at the hearing with some cross-referencing to the system in Reprint No 4.  It was not thought that there were any material differences in the texts although the style of setting out the sections has changed.  In these reasons I have made reference to both numbering systems but have copied the style of Reprint No 4.
           It is convenient to make some reference to the scheme of the MR Act in so far as it provides for the grant of a mining lease to the holder of a prospecting permit.  The long title to the MR Act is

"An Act to provide for the assessment, development and utilisation of mineral resources to the maximum extent practicable consistent with sound economic and land use management."

The principal objectives of the Act, inter alia, are to encourage and facilitate prospecting and exploring for and mining of minerals and to minimise land use conflict with respect to prospecting, exploring and mining, s.2(a) and (c) (s.1.3).  A person may apply for a mining lease in respect of land comprised in a prospecting permit, an exploration permit or a mineral development licence in respect of minerals where the applicant is a holder of such permit or licence, s.232 (s.71.).
           The definition of "mineral" is inclusive.  Relevantly it includes clay if mined for use for its ceramic properties, kaolin and bentonite.  It specifically does not include soil, sand, gravel or rock (other than rock mined in block or slab form for building or monumental purposes) to be used or to be supplied for use as such, whether intact or in broken form, s.5(a) and (n) (s.1.8).
           The MR Act reserves to the Crown the exclusive right to grant permits, leases etc in respect of exploration, prospecting and mining of any mineral from all land within the State, ss.8 and 9 (ss.1.9, 1.10).  The scheme seeks to minimise conflict by giving priority to earlier registered claims over land.  The MR Act requires that a mining lease in respect of surface land may only be granted to a person who holds a current prospecting permit to enter in respect of that land.  Land is excluded from a prospecting permit if it is included, inter alia, in an existing mining lease or an application for a mining lease that has not been finally decided, s.16 (s.3.4).  A holder of a prospecting permit may enter the land, inter alia, to enable the holder to apply for a mining lease, s.18(1) (s.3.5A).
           An application for a prospecting permit for land must be made in the approved form and lodged with the relevant mining registrar accompanied by proof of the applicant's identity, the prescribed fee, a name and address for service and, if the application is for a parcel prospecting permit (as here), a sketch and description identifying the land over which the permit is sought and the land proposed to be used as access, the name and address of each owner of occupied land over which the permit is sought and to be used as access, s.21 (s.3.50).  A mining registrar who rejects an application for the grant of a prospecting permit must give written notice to the applicant stating the reasons for rejection, s.22 (s.3.6).
           A mining registrar may grant a prospecting permit for land if he is satisfied an eligible person has made a genuine application which complies with the MR Act, and has deposited the requisite security, s.24 (s.3.8).  The prospecting permit may be granted on conditions and for a period of three months, s.29.  Upon granting a prospecting permit the mining registrar advises the owner of the land specified in the permit, s.31 (s.3.13).  The permit holder must give the owner of the land covered by the permit 7 days' notice of entry before the intended entry or a shorter time acceptable to the owner and endorsed on the notice, s.32 (s.3.16).  The MR Act makes provision for an appeal to the Wardens Court by any person whose rights are adversely affected inter alia by a decision to refuse to grant or to cancel a prospecting permit, s.38 (s.3.22).
           A person who holds a prospecting permit may apply for a mining lease in respect of a mineral or minerals in the land comprised in the permit, s.232 (s.7.1).  Prior to applying for a mining lease the holder of the prospecting permit is required to mark out the boundary of the land proposed to be the subject of the application as specified, ss.240, 241 (ss.7.8, 7.9).  The application for a mining lease must be made within seven days of marking out.  It must be on the appropriate form; specifying the name of each applicant; accompanied by certain information including a description of all parcels of land the subject of the application identifying the boundaries of the land applied for, any access to the land; stating reasons why the mining lease should be granted; be accompanied by a sketch, map or other graphic representation setting out the boundaries of the land; identifying the mineral or minerals or purpose for the lease; and the term of the lease, s.243(s.7.11).  The mining lease application must be lodged by the applicant personally or by agent at the office of the mining registrar for the relevant mining district, s.245 (s.7.13).
           The mining registrar may reject an application for a mining lease in respect of all or part of the land and an appeal may be made to the Wardens Court, s.250 (s.7.16).  If there is more than one application for the grant of a mining lease for the same land priority is given according to the time at which they are lodged, s.251 (s.7.17).  The mining registrar prepares a certificate of application for a mining lease upon being satisfied that the applicant is eligible to apply and has complied with the requirements of the MR Act.  The person lodging the application must sign the certificate as settled by the mining registrar.  Within seven days a copy of the certificate must be posted on the datum post on the land the subject of the application.  A copy of the application (but not the statement detailing the applicant's financial and technical resources) and the endorsed certificate of application must be given to the owner of the land and the relevant local government authority.  The applicant is required to advertise a copy of the certificate in a local newspaper at least fourteen days prior to the last date for the receipt of objections to the issue of the mining lease, s.252 (s.7.18).  The applicant is required to lodge with the mining registrar a declaration as to the applicant's compliance with the relevant provisions as to notice and advertising.  If an applicant for a mining lease gives the mining registrar additional information about the application the applicant must also give a copy of that information to each of the persons required to be given a copy of the application, s.252(11) (s.7.18(7)).
           Objections to the grant of a mining lease may be lodged with the mining registrar in writing in the approved form stating the grounds of objection and the facts and circumstances relied on by the objector on or before the last day fixed for the receipt of objections, s.260 (s.7.20).  The mining registrar sets a date for hearing the application and any objections by the Wardens Court, s.265 (s.7.22).  The Wardens Court hearing an application for the grant of a mining lease may inform itself as it considers appropriate to determine the relative merits of the application and objections.  The Wardens Court is not bound by any rules of practice or evidence.  The Wardens Court may not entertain any objection if it was not contained in a duly lodged objection, s.268(4) (s.7.25).
           After a hearing for the grant of a mining lease the warden forwards to the Minister the objections, the evidence adduced at the hearing, the exhibits and the warden's recommendation whether the application should be granted or rejected in whole or in part and any conditions thought appropriate.  If the recommendation is to reject the application the warden must give the Minister reasons, s.269 (s.7.26).
           When making a recommendation to the Minister to grant a mining lease the warden is directed by s.269(4) to take into account and consider whether

(a)the provisions of this Act have been complied with; and

(b)the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate; and

(c)if the land applied for is mineralised there will be an acceptable level of development and utilisation of the mineral resources within the area applied for; and

(d)the land and the surface area of the land in respect of which the mining lease is sought is of an appropriate size and shape; and

(e)the term sought is appropriate; and

(f)the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease; and

(g)the past performance of the applicant has been satisfactory; and

(h)any disadvantage may result to the rights of -

(i)holders of existing exploration permits or mineral development licences; or

(ii)existing applicants for exploration permits or mineral development licences; and

(i)the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management; and

(j)there will be any adverse environmental impact caused by those operations and, if so, the extent thereof; and

(k)the public right and interest will be prejudiced; and

(l)any good reason has been shown for a refusal to grant the mining lease; and

(m)taking into consideration the current and prospective uses of that land, the proposed mining operation is an appropriate land use.

The Minister is required to consider every recommendation made by a warden in respect of an application for the grant of a mining lease and after taking into account the matters specified in s.269(4) may recommend to the Governor-in-Council that a mining lease be granted and an instrument of lease be issued to the applicant with respect to the whole or part of the land the subject of the application.  The Minister may reject the application or direct the Wardens Court to hold a hearing or further hearing into the application generally or limited to such matter as the Minister may specify.  Where the Minister rejects an application the Minister is required to give reasons to the applicant for the rejection, s.271 (s.7.28).
           Where the Minister has directed a further hearing of an application for the grant of a mining lease, at the conclusion of that hearing the warden is required to forward that evidence and any exhibits to the Minister and any recommendation the warden may make in relation to that additional evidence, s.272 (s.7.29).  Each mining lease granted is subject inter alia to a condition that the holder will use the land comprised in the mining lease bona fide for the purpose for which it was granted and in accordance with the Act and for no other purpose, s.276(1)(a) (s.7.33(1)(a)).
           By s.370 (s.10.27) the Supreme Court is empowered to hear and determine challenges to the validity of any grant made pursuant to the MR Act or any other Act related to mining.

Background

Geoffrey William Bradley was and is the registered proprietor of certain land near Stanthorpe including Portions 5V and 6V in the County of Bentinck Parish of Catterthun.  The land is timbered hilly country with a potential for sheep grazing not utilised it seems by the land owner.  The plaintiff and the first, second and third defendants are engaged in similar businesses, inter alia, of supplying rock materials for road base and driveways.

The first defendant and the others associated with him commenced removing gravel and other loose product from Portion 6V some time during 1989 with Mr Bradley's agreement in return for the payment of a royalty.  It is convenient to refer to Mr Cadman (the first defendant) when referring to the first, second and third defendants as he has been the constant protagonist on that side of the record and there is no dispute about standing or identity.  Similarly it is convenient on occasions to refer to Mr Raddatz, a director of QDA, who has similarly been closely involved in the company's operations in respect of the land under dispute when referring to the plaintiff.  There is no dispute about identity or standing with respect to the plaintiff and/or Mr Raddatz.
           In about August 1990 Mr Raddatz commenced negotiations with Mr Bradley to remove gravel and loose product from Portions 5V and 6V.  These discussions culminated in a deed between Mr Bradley and QDA executed on 20 December 1990 whereby QDA was granted an exclusive licence to enter onto Portions 5V and 6V to quarry, crush and remove rock aggregate from the land under certain conditions not presently relevant.  The licence was for three years and extended for a further three years by deed dated 2 October 1993.  A supplementary deed dated 15 January 1993 had dealt with some incidental matters not now relevant.
           Mr Raddatz applied for and was granted a prospecting permit pursuant to s.24 (s.3.7) of the MR Act in respect of Portion 6V, 5V, 61, 60 and 20 restricted to the shaded areas on the accompanying sketch to do all necessary acts to apply for a mining lease or for prospecting for minerals.  Prospecting Permit No 50020 was granted to him on 10 October 1990 and was due to expire on 9 January 1991.  QDA was granted an extractive industry permit by the Stanthorpe Shire Council to carry out rock quarrying operations on Portions 5V and 6V on 14 December 1990.
           Towards the end of December 1990 and early January 1991 Mr Cadman discussed with Mr Bradley obtaining a mining lease in respect of Portion 6V to enable him to tumble and polish the gravel.  Mr Cadman had discussed with officers of the Department and the Stanthorpe Shire Council what was required in terms of permits.
           Mr Raddatz allowed his prospecting permit over Portions 5V and 6V to lapse on 9 January 1991 without seeking a fresh permit.
           Mr Bradley did not give evidence at the trial.  Neither side asked for any inferences to be drawn in consequence.
Cadman's Application for Prospecting Permit
           Mr Cadman made an application for a prospecting permit pursuant to s.21 (s.3.5) of the MR Act in respect of "Lot 44 BNT 1271 Portion 6V County of Bentinck - Parish of Catterthun" in the ownership of GW Bradley.  The purpose was to peg a lease.  The application was accompanied by a map of the land specifying the land in respect of which the prospecting permit was sought.  This indicated a part of Portion 6V bounded by Foxbar Lane on the left, with Portion 4V below, part of Portion 5V to the lower right and the boundary of Lot 35 (owned by one Wren) to the upper right.  The balance of Portion 6V was marked as "This section not required".
           It is reasonable to conclude that Mr Cadman posted the application to the Department as it is dated 8 January 1991 and is stamped as having been received on 11 January 1991 at the Department.  It came to the mining registrar's (Mr Grundy) attention on 15 January 1991.  He wrote asking Mr Cadman  for some further information concerning the application on 18 January 1991 which was subsequently provided.  He again wrote to Mr Cadman on 29 January 1991 informing him that the application was in order and that a prospecting permit could be granted upon payment of the security deposit.  Mr Cadman was issued with prospecting permit No 50025 on 1 February 1991 when he attended at the Department and paid the security deposit.  The permit provided that he was permitted to "enter upon the land described hereunder but restricted to the area and access specified in the attached sketch".  The "background land" is described on the permit as "Freehold Por 6 Par Catterthun Co Bentinck".  The area is 200 hectares, the locality described as west of Stanthorpe and was issued

"For the purpose of doing all acts necessary to comply with the requirements of the aforementioned Act relating to an application for a Mining Claim or Mining Lease or Prospecting for the mineral stated hereunder."

The special circumstance imposed upon the permit was that it was "for the purposes of pegging a mining lease only".  It is dated 1 February 1991.
           The background land described in the permit is for Portion 6 and not for Portion 6V.  This was not noticed by anyone until the plaintiff commenced proceedings some years later and was mentioned in submissions made to the Minister on behalf of the plaintiff towards the end of December 1993.

           It was suggested to Mr Cadman in cross-examination that there was some doubt as to whether a plan was attached to prospecting permit 50025 when he was given it at the counter at Minerals House.  Although he was unable to say with certainty whether it was the map appearing at p.15 of exhibit 1 (agreed bundle of documents) which had his writing on it or at p.19A (a plan generated by computer, most likely within the Department) he was quite certain that the prospecting permit had a map attached when he and Mr Neilsen (then a co-owner in the business) left Minerals House with the prospecting permit on 1 February 1991.  He had not and has not applied for or held any other permits and so was unlikely to be confused about this matter.  Each of those plans delineates the part of Portion 6V sought in the application.  Mr Grundy gave evidence that he intended to grant a prospecting permit over the land delineated on the map accompanying the application form, namely, Portion 6V.  He said that he would not have approved the issue of a prospecting permit without a plan showing its location.  It was the invariable practice of the mining registrar to ensure that a sketch, usually a computer generated sketch, was stapled to the original prospecting permit.  He conceded that in the early days of the administration of the MR Act (which was the case here) the computer system was inoperable regularly and the practice was to photocopy the map attached to the application and to attach it to the prospecting permit.
           Mr Grundy was aware of Mr Raddatz's expired prospecting permit no 50025 when he approved Mr Cadman's prospecting permit on 25 January 1991 but could see no good reason why Mr Cadman's prospecting permit should not be approved.  More than one prospecting permit could extend over the same land.

Cadman's Mining Lease Application

Mr Cadman and Mr Neilsen had discussed with Mr Bradley obtaining a prospecting permit to peg for a mining lease over Portion 6V.  By the time Mr Cadman and Mr Neilsen gave evidence of these conversations some five years had elapsed and it is to be expected that their recollection of detail would not necessarily be the same.  Notwithstanding some slight difference in recollection I accept that prior to proceeding to Brisbane to collect the prospecting permit it was indicated to Mr Bradley that they proposed to peg the land if they got the permit if he agreed and that he expressed approval for that course.  When they returned to Mr Bradley's property on 1 February 1991 with the prospecting permit Mr Bradley endorsed the back of the permit with the words:

"I Geoff Bradley of ARALUEN give MJ CADMAN & BJ NEILSEN permission to enter block 6V to peg for Mining Lease

signed GW Bradley 1/2/91"

Messrs Cadman and Neilsen proceeded to peg in the late afternoon of 1 February.  Mr Neilsen said that Mr Bradley "wanted to come up and give us a hand" to peg (t/s p.104).  The significance of this is that the MR Act requires a permit holder to give at least 7 days' notice of an intention to enter the land to the owner of occupied land unless a shorter period is acceptable to the owner and such acceptance is endorsed on the prospecting permit, s.32 (s.3.16).
           QDA has pleaded that no such notice was given to Mr Bradley in accordance with the requirements of the MR Act.  That is one of the bases for arguing that the MR Act has not been complied with and that the mining registrar ought not to have issued the mining lease application and that the mining warden's recommendation was made without properly taking into account such breach pursuant to s.269(4) (s.7.26(3)) of the MR Act.
           Messrs Cadman and Neilsen made application for a mining lease pursuant to s.245 (s.7.13) of the MR Act on 4 February 1991 in Brisbane.  The mining registrar issued a certificate of application for mining lease No 50020 ("MLA 50020") dated 4 February 1991 to mine for Rhodonite in respect of the land the boundaries of which were identified in the application and on an annexed computer generated plan being part of Portion 6V.
           Mr Grundy said that he satisfied himself that the MR Act had been complied with in all necessary respects including that a prospecting permit was held in respect of the land the subject of the mining lease application and that the owner had been given 7 days' notice prior to pegging or had agreed to an abridgment of time.  The misdescription of Portion 6V as Portion 6 on the prospecting permit was not noticed when the prerequisite tenure, prospecting permit no 50025 was checked.  Mr Cadman was told of the requirement to fix the mining lease application certificate on the pegged land, to provide a copy to the local authority and to advertise it in a local newspaper.
           On the same day the mining registrar wrote to Mr Bradley concerning prospecting permit no 50025 describing the subject land as "Por 6V" and notifying him of his entitlement to make a claim for any damage arising from the pegging of a mining lease.
           The following occurred in respect of the application:  by letter undated but action noted by the mining registrar on 13 February 1991 Messrs Cadman and Neilsen sought to have added jasper and rhodochrosite to the mining lease application; by letter dated 8 October 1991 they sought to have manganese, rhodochrosite, jasper and quartz added.  The departmental notation on the letter records "Mn & Q added to Database.  Jasper already added.  Rhodochrosite not in mineral symbol list but is included with Manganese".  On 1 August 1992 Mr Cadman wrote that the holders of mining lease application 50020 wished to add clay to the list of minerals.
           On 21 April 1992 the mining registrar approved the assignment of Mr Neilsen's 50% interest in the mining lease application to Mr Cadman and the assignment of Cadman's 100% interest to Cadman, Smith and Taney (the second and third defendants) in equal shares.  Mr Cadman was advised to notify the landowner pursuant to s.7.55(8) (s.300(11)) before 19 May 1992.

Raddatz's Application for Prospecting Permit

Mr Raddatz was interested in obtaining a mining lease over part of the area over which he held an extractive industry permit from the Stanthorpe Shire Council.  On 30 January 1991 he applied for a new prospecting permit in person in Brisbane.  He discussed his requirements with Mr Grundy in the context of pegging a mining lease in the future.  After some discussion Mr Raddatz settled on part of Portions 5V and 6V and shaded the areas on the map attached to his application.  Prospecting permit no 50027 issued that day.  It described the land as "being reduced area under previous pp.21".  Initially in his evidence Mr Raddatz suggested that that permit should have been posted to him but was never received but agreed in cross-examination that he had received it in person at Minerals House in Brisbane.  That is contrary to the statement of claim which alleges in paragraph 12 that the mining registrar never forwarded the original prospecting permit 50027 to Raddatz.

On 7 February 1991 Mr Raddatz saw the advertised certificate for MLA 50020 in the local newspaper.  Until then, although he was aware of Mr Cadman's presence extracting gravel from Portion 6V, he was unaware that Mr Cadman had progressed towards a mining lease or indeed had a prospecting permit.  Mr Raddatz's evidence was that without further notice or discussion with the Department he received, possibly by post, an amended prospecting permit dated 12 February 1991 which deleted any reference to Portion 6V.  He denied that he had discussed an amendment to his prospecting permit with Mr Grundy or anyone else in Brisbane prior to its issue and after being made aware of Mr Cadman's mining lease application.  He maintains as part of his case that prospecting permit 50027 was cancelled and re-issued with amendments by the mining registrar so as to exclude Portion 6V and include all of Portion 5V and forwarded, presumably by post, to him.
           Mr Grundy gives quite different evidence as to how the amended prospecting permit 50027 came into existence.  I accept Mr Grundy's evidence for reasons which will become apparent.
           Mr Grundy recalled that Mr Raddatz and possibly his wife attended at Minerals House on 12 February very upset about Mr Cadman's mining lease application which had been seen in the local paper.  After considerable discussion about Mr Raddatz's options Mr Grundy indicated that he would be prepared to issue an amended prospecting permit which would delete the reference to Portion 6V since the part of Portion 6V the subject of Mr Raddatz's existing permit was the subject of Messrs Cadman and Neilsen's mining lease application and would, in lieu, include the whole of Portion 5V.  According to Mr Grundy, Mr Raddatz agreed with this course and indeed expressed some gratitude that some solution to the problem had been found.
           Mr Grundy wrote "CANCELLED" across the original prospecting permit 50027 issued on 30 January 1991 and endorsed the copy with the words "amended 12/2/91 see reprinted permit".  The reprinted permit is numbered 50027, the background land is Portion 5V and the prospecting permit is stated to have been granted on 30 January 1991.  The special circumstances are described as

"Permit amended 12-FEB-91 excluding Portion 6V and including all of Portion 5V being reduced area under previous pp21.  For prospecting purposes only including the pegging of mining leases & claims."

Mr Grundy conceded that writing "CANCELLED" over prospecting permit 50027 was not strictly correct.  It had in fact been amended and reissued.  This is borne out by it bearing the same number and original date of issue.  Had it been cancelled a fresh permit bearing a new number dating from 12 February would have issued.
           A mining lease application was lodged on Mr Raddatz's behalf on 12 February 1991 to mine jasper rhodonite and manganese and associated purposes.  The land delineated in red on the plan is the whole of Portion 5V.  A certificate issued in respect of this land.  I accept Mr Grundy's evidence that unless a prospecting permit was in existence covering the whole of Portion 5V a mining lease application certificate would not issue in respect of it.  The mining lease application was plainly made by Mr Raddatz or on his behalf following the amendment of prospecting permit 50027 on that day and with Mr Raddatz's or his agent's knowledge of that amendment.  On 14 February 1991 the mining registrar wrote to Mr Bradley informing him of the amendment to the area the subject of prospecting permit 50027 to cover the whole of Portion 5V and to delete that part of Portion 6V as was originally issued.  No complaint was received concerning the amended prospecting permit until the commencement of litigation.  QDA alleges that because no reasons were given by the mining registrar for cancelling prospecting permit 50027 as required by s.36 (s.3.20) there was non-compliance with the MR Act in respect of MLA 50020.  The necessary link between MLA 50020 and Mr Raddatz's prospecting permit is not made.  In any event the prospecting permit was not cancelled and giving reasons never arose because what occurred was reached by discussion between Mr Raddatz and Mr Grundy.  Further there is provision for a person whose interests are adversely affected by a decision to refuse to grant or to cancel a prospecting permit to appeal to the Wardens Court, ss.38, 39 (ss.3.22, 3.22A) which was not availed of by Mr Raddatz.  The question of Mr Raddatz's prospecting permit was not raised as an objection before the Wardens Court hearing MLA 50020 although to that hearing its relevance would have been doubtful.
           The circumstances of the issue of the amended prospecting permit occupied quite some part of the trial.  There was a suggestion by Mr Raddatz that he was the victim of some conspiracy between the Cadman/Neilsen interests and officers of the Department to deprive him of his rights.  There are no allegations in the pleadings to this effect and none was sought to be made by amendment in the course of the trial although there was mention of it.  Evidence of a chance remark made to Mr Thompson, formerly a director of QDA, by Mr Neilsen about advice received by Neilsen from an officer in the Department who was said to be a relative was the highest that this allegation went.  When that officer, Mr McKee, gave evidence it was not raised directly with him.  It may be disregarded.  The relevance of Mr Raddatz's mining lease application is that it is in respect of land adjacent to Portion 6V, concerns the minerals which Mr Raddatz contended before the mining warden did not demonstrate mineralisation on Portion 6V and in respect of which a mining lease has been recommended to the Minister and which the Minister has indicated he proposes to recommend to the Governor-in-Council be granted.
Mining Warden's Proceedings
           On 1 March 1991 QDA gave notice of its objection to the grant of mining lease 50020 on the grounds that it would deprive QDA of its entitlements under its extractive industry permit from the Stanthorpe Shire Council and that it would be impracticable for those operations to be conducted in respect of the same land as the contemplated mining lease operation.
           The Wardens Court was convened to hear the application and objections on 27 March 1991.  The mining warden had previously heard and made a recommendation to the Minister to issue a mining lease in respect of Portion 5V to QDA to which there had been no objection.  The mining warden heard the application of Messrs Cadman and Neilsen who appeared on their own behalf and the solicitor for QDA as objector.  The mining warden concluded that by virtue of s.319 (s.8.1) the MR Act overrode the licence or permit issued by the local authority to QDA and the agreement with Mr Bradley to the extent that it referred to Portion 6V and since agreement between the parties could not be reached were thereby inoperable.  He noted, having dealt with MLA 50021 (QDA's application), that the same access was not used by both parties and that the size of the areas being exploited at any given time by each party was such that he could conclude that there were no operating difficulties.  The mining warden indicated that he would recommend to the Minister that the lease be granted subject, inter alia, to proof of mineralisation and development.  After hearing submissions by the solicitor for QDA he indicated that he would receive submissions in writing concerning conditions to be imposed to protect, if appropriate, QDA's extractive licence.
           By letter dated 10 October 1991 the Department set out the conditions for the proposed mining lease to Cadman and Neilsen and asked for indications in writing by 28 November if they were acceptable.  Amongst those conditions were the following

"8.Unless otherwise approved, the holder shall remove from all areas to be disturbed (including areas for the deposition of overburden, waste rock and tailings), the surface material to a depth of 100 millimetres (100mm) plus any additional arable soil, and shall stockpile such surface material and arable soil separately in a manner such that it will not erode and will be available for the rehabilitation of the lease and for no other purpose.

...

10.Unless otherwise approved, the holder shall dispose of all overburden, tailings, or other waste resulting from mining on the lease, within the boundaries of the lease."

Messrs Cadman and Neilsen accepted the conditions on 7 November 1991.  The surveyed Plan of mining lease 50020 issued on 30 April 1992.
           An internal memorandum from a senior geologist and a senior mineral resources officer within the Department was prepared on 13 May 1992.  Issues canvassed were whether a mining lease was necessary for jasper to be taken from Portion 6V or alternatively whether QDA should also be required to apply for a mining lease in respect of its quarrying operations.  The officers concluded that rhodonite was a mineral for the purposes of the MR Act and its extraction would require a mining lease.  They advised that if jasper was to be produced in a block or slab form a mining lease would be required but if it was to be quarried for aggregate an extractive industry permit would be necessary.  They recommended that before the mining lease was granted the nature of the mineral be determined by expert examination if necessary; the mining lease be allowed to proceed only if true rhodonite was to be produced in its own right or jasper in block or slab form; that jasper be not added to the list of minerals unless it was to be produced in block or slab form; if crushed jasper was to be produced then an extractive industry permit was required.
           QDA's solicitors sent an extensive submission to the Minister dated 20 May 1992 as to why he should not grant a mining lease in respect of MLA 50020.  It is unnecessary to examine those submissions.  On 1 July 1992 the Minister informed QDA's solicitors that he was referring MLAs 50020 and 50021 to the Wardens Court to investigate

•the presence of the minerals rhodonite, manganese and quartz, the method of mining and the level of development and utilisation of those minerals;

•proof of how jasper was to be mined and the utilisation of the jasper; and

•to investigate evidence of authority to extract topsoil and red deco from the area of the mining lease in respect of MLA 50020.

On 4 August 1992 QDA issued a plaint out of the District Court at Stanthorpe against Mr Cadman for damages for conversion of rock materials or alternatively for damages for trespass to those rock materials or in the further alternative for damages for wrongful detention of the rock materials on Portion 6V and an injunction restraining the continued occupation of the land or from quarrying or removing the rock material.  An interlocutory injunction was granted on 20 August 1992.
           On 6 August 1992 the mining warden made orders applying to both mining lease applications that the parties were permitted to enter the respective lands to do such things as drilling, testing and analysis as was required to pursue the application for a mining lease.  A dispute arose about access to Portion 6V due to Mr Gow a director of QDA locking the access gate onto 6V so as to exclude Mr Cadman.  The injunction obtained from the District Court had permitted access for the purposes permitted by the mining registrar.  The mining registrar made certain orders preventing interference with access by each party.
           On 30 September 1993 QDA's solicitors were informed by the Wardens Court that it had no standing as an objector in respect of the matters raised by the Minister concerning MLA 50020 and that its right of appearance was strictly limited.
           On 10 October 1993 Mr Cadman filed an affidavit in the Wardens Court directed to showing mineralisation.  That affidavit exhibited a number of geological reports.  Mr Logan for QDA wished to call expert geological evidence at this trial to contradict the expert evidence which was before the Wardens Court.  It was not directed at showing that the mining warden had misunderstood some essential technical term or expression within the reports or anything of a like kind but to produce a body of opposing evidence.  The expert evidence was not permitted to be led.  The mining warden received samples from Mr Cadman including a sample of a polished slab of jasper (exhibit 17) on 26 November 1993.
           The mining warden heard further evidence in respect of MLA 50020 on 14 October 1993.
Mining Warden's Further Proceedings 14 October 1993
           The Wardens Court was reconvened to hear evidence concerning the Minister's requisitions.  The solicitors for QDA argued for an adjournment on the basis that the Wardens Court should not proceed until the action commenced by it in the District Court and the further action commenced in the Supreme Court (not these proceedings) had been dealt with.  It was apparent that the action in the District Court was proceeding extremely slowly.  It had commenced in 1992 with the issue of the plaint, to which I have referred.  In October 1993 QDA was engaged in disputes about discovery.  It had had the benefit of an injunction restraining Mr Cadman from removing loose product from Portion 6V since August 1992.  The Supreme Court action, similar to the present, was for restraining orders against the defendants from proceeding with the mining lease application pending the determination of the District Court action and other relief.  That writ dated 14 October 1992 and had only been served on Mr Cadman on 12 October 1993 immediately before the further hearing in the Wardens Court.  The mining warden refused the application for adjournment on the grounds that he was answering a requisition from the Minister and that in the twelve months since QDA had obtained its injunction from the District Court it had not prosecuted its action with any vigour.  He held that since the District Court injunction precluded any consideration of the removal of loose product from Portion 6V by the Cadman interests he would not proceed to hear any evidence in respect of it.  The remaining requisitions concerned only the Cadman interests and since QDA had not objected on the question of mineralisation or exploitation he held that it had no standing.

           On 22 October 1993 Mr Bradley and QDA agreed to extend its extractive licence in respect of Portions 5V and 6V.
           The mining warden received further evidence on behalf of the Cadman interests on 26 November  1993.
           On 1 December 1993 the solicitors for QDA wrote to the Minister requesting that MLA 50020 not proceed to grant pending receipt of detailed submissions on behalf of QDA and a possible meeting with the Minister.  A detailed (undated) submission to the Minister followed setting out QDA's understanding of the history of the matter, raising various aspects of non-compliance with the MR Act and criticising the mining warden for proceeding to hear evidence in respect of matters the subject of District and Supreme Court proceedings.

The Mining Warden's Report and Recommendations to Minister

The mining warden reported and made recommendations to the Minister pursuant to ss.269 and 272 (ss.7.26 and 7.29) of the MR Act on 23 March 1994.  He recommended that the Minister grant a mining lease over the whole of the applicant area for a term of 21 years for the purpose of mining jasper in block or slab form and clay.

The mining warden dealt with each of the matters which s.269(4) (s.7.26(3)) of the MR Act directed that he take into account.  QDA have challenged his findings only in respect of a limited number of those criteria and it is therefore unnecessary to set out his findings with respect to the balance.  The mining warden was satisfied that the applicant was the holder of prospecting permit 50025 in respect of the land when marking out and making the application.  The description of the land on the prospecting permit as Portion 6 rather than Portion 6V had not been drawn to his attention.  He expressed himself as satisfied that the provisions of the MR Act had been complied with "or substantially complied with (s.11.6)", at p.3 of his report.  The mining warden noted that the Cadman interests had concluded that rhodonite and manganese did not appear in sufficient quantities to mine in their own right.  He deleted rhodonite (and) manganese from the application.  The Cadman interests had indicated that it was proposed to mine jasper in block or slab form for use as decorative panels in the building industry after polishing.  Results of tests on a sample of clay were provided to the Wardens Court.  The mining warden concluded that

"... it appeared that this clay consists of 90% smectite clay which is the major component in some products described as 'bentonite' and 'fullers earth'.  It appears that there is some market potential for this clay."

He concluded at p.6

"I accept the Applicant's advice and I am satisfied on the detailed information given by them that the purpose for which the lease is sought is appropriate.  The economic viability of the project is a matter for the applicant's commercial assessment, and not a matter for this Court."

The mining warden set out the basis for his satisfaction as to the other criteria in s.269(4) (s.7.26(3)).  He noted that the objects of the Act would be attained if a mining lease were granted for the term recommended because he found

"1.A small scale operation is planned.

2.It is unlikely that the land applied for is of any interest to a large scale miner.

3.The location of the proposed mining operation and the method of mining is unlikely to cause environmental or public interest concerns.

4.A realistic security deposit, subject to EMOS discounts if appropriate, will be imposed to guard against financial failure of the miner to ensure rehabilitation is completed.

5.The applicant appears to have sufficient experience in the industry to accurately assess the potential of the project.

6.There is a market for the product and the product will provide employment."  (pp.10,11 of  the report)

He noted at p.13 that the objectors had sought to make representations to the Minister about the application outside the forum of the Wardens Court and on matters on which they did not lodge any formal objection.  The mining warden did not deal with paragraph (c) of the Minister's requisitions noting that the objectors (QDA) had obtained an injunction which prevented the applicants (the Cadman interests) from utilising any topsoil or red deco from the lease area.  He noted that until the injunction was removed the applicant would not be able to utilise that product but that on granting the lease the applicant was entitled to remove and store the topsoil for rehabilitation purposes and any red deco not used for rehabilitation or its mineral properties became the property of the landowner (at p.14).
Subsequent Chronology
           On 2 November 1994 the Department wrote to the parties indicating that it would take action to progress MLAs 50020 and 50021 towards a grant in terms of the MR Act 1989 to commence no later than 21 November 1994.  Further correspondence from the Crown Solicitor indicated that the mining lease applications were to proceed to grant and the expected date was 15 December 1994.
           QDA issued the present writ on 8 December 1994 together with a notice of motion seeking interlocutory injunctive relief against the defendants.  The notice of motion came on before Byrne J on 16 December 1994 when undertakings and orders were made by consent including that no steps would be taken to forward MLA 50020 to the Governor-in-Council for grant.
           By letter dated 21 December 1994 Mr Bradley revoked Mr Cadman's entitlement to remove product from part of Portion 6V pursuant to their agreement of 20 May 1992.  He made reference to an earlier oral agreement between himself and Mr Cadman to remove rock materials from Portion 6V prior to entering into a written agreement.
QDA's Case
           QDA seeks declarations that MLA 50020 is invalid or a nullity because it was not made in compliance with the provisions of the MR Act.  The circumstances of non-compliance alleged against the first, second and third defendants are

•that Cadman entered Portion 6V purportedly in pursuance of rights granted under Prospecting Permit 50025 when it gave no right to enter Portion 6V;

•that Cadman entered Portion 6V to mark a mining lease area without giving the landowner the requisite notice of entry pursuant to s.32 (s.3.16) of the MR Act;

•that information concerning the changes to the minerals covered by mining lease application 50020 were not notified to the Stanthorpe Shire Council as required by s.252(11) (s.7.18(7)) of the MR Act;

•that the marking out of the land and bearings as identified in mining lease application 50020 was not correct for the purposes of ss.240 and 241 (ss.7.8 and 7.9) of the MR Act because the wrong land had been marked out (the Portion 6V argument).

In the alternative QDA pleads that the first, second and third defendants are ineligible to apply for MLA 50020 in respect of Portion 6V because they were not the holders of a prospecting permit in respect of that land (but of some other land).  In the further alternative QDA pleads that MLA 50020 has not been made bona fide for the purpose of securing rights to extract minerals pursuant to the MR Act but for the collateral purpose of obtaining access to non-mineral materials the subject of QDA's extractive permit.
           Neither the mining warden nor mining registrar is a party to these proceedings.  QDA pleads that the recommendation to the Minister was flawed on a number of bases because the mining warden had not taken into account that which s.269 (s.7.26(3)) of the MR Act required him to and impliedly, the recommendation ought not to have been acted upon by the Minister or the director-general.  QDA alleges that

•the mining warden could not have been satisfied that the MR Act had been complied with because of the breaches of the Act by the Cadman interests as set out above;

•the evidence did not establish mineralisation in respect of rhodonite manganese quartz or clay;

•there was no evidence of  an acceptable level of development and utilisation of the minerals applied for;

•the evidence did not establish that the Cadman interests had the necessary financial and technical capabilities to carry on mining operations;

•appropriate conditions to protect QDA's rights under the deed with Mr Bradley were not properly considered and addressed by the mining warden.

QDA alleges that the Cadman interests are not entitled to a grant of a mining lease in circumstances where the grant would prevent QDA from enjoying the benefits of its extractive licence.
           Injunctions are sought

•restraining the first, second and third defendants from proceeding with MLA 50020;

•restraining the Minister from recommending to the Governor-in-Council that a mining lease be granted to the applicants in pursuance of MLA 50020;

•restraining the Minister from recording in writing the Minister's satisfaction that in respect of MLA 50020 there has been substantial compliance by the applicants with the provisions of the MR Act;

•restraining the director-general from recommending or advising the Minister that he take any steps towards a grant of MLA 50020.

Jurisdiction

The Wardens Court has jurisdiction to hear and determine actions, suits and proceedings arising in relation to prospecting, exploration or mining or in respect of any permit, claim, licence or lease granted or issued pursuant to any Act relating to mining, s.363 (s.10.20).  Section 363(2) specifically refers to the warden's jurisdiction to hear and determine actions relating to the complete range of matters which might be encountered in respect of mining including entitlement to minerals, encroachment or trespass matters arising between applicants in respect of mining, compensation, assessment of damage for injury or loss carried out under the authority of a mining Act and includes the power to grant equitable remedies.
           If proceedings are pending in the Supreme Court or a District Court which might have been brought in a Wardens Court and the parties have not consented to the proceedings being heard in the Supreme or District Court a party may apply to the Supreme Court to remit the proceedings to a Wardens Court or the Supreme Court may order the party that brought the proceedings to show cause why the proceeding should not be so remitted, s.365 (s.10.22).
           If proceedings are pending in a Wardens Court which might have been brought in the Supreme or a District Court similarly an application may be made to the Supreme Court to remit the proceedings to that Court or a District Court.
           By s.370 (s.10.27)

"(1)The Supreme Court has jurisdiction to hear and determine any proceeding challenging or otherwise relating to the validity of any grant that has been made pursuant to this Act or any Act repealed by this Act or any other Act relating to mining and, notwithstanding any other Act or law, that proceeding shall be heard and determined in that court only."

Appeals may be brought to the District Court from a determination of a Wardens Court in the absence of any other provision relating to the manner of an appeal, s.383 (s.10.40).  An appeal shall not lie from a determination of a Wardens Court where that determination consists of a recommendation upon an application or a finding upon which the Governor-in-Council or the Minister may exercise a discretion to do or refrain from doing any act or thing s.383(8) (s.10.40(6)).
QDA submits that this Court has jurisdiction pursuant to s.320 since "grant" has not been defined within the MR Act and can refer to a variety of permits, licences, certifications or leases. When the scheme of the Act is considered together with the relief sought and that the mining warden made a recommendation to the Minister who has not yet recommended to the Governor-in-Council that a grant of a mining lease be made, still less has a grant issued, in my view the court does not have a general jurisdiction. No relevant grant has been made or, at this stage, challenged.  Counsel referred to Re Savage Exploration Pty Ltd OS No 241 of 1993 unreported decision of Byrne J of 2 April 1993 (SC 93/451) where his Honour, in a different context relating to the cross-vesting jurisdiction, referred to the second reading speech of the Minister at the time the precursor to s.370 was introduced in December 1991.  His Honour said at p.5

"In introducing the Bill, the minister said in relation to the intended ramifications of s.80A:

'It is considered that any challenge to the validity of a mining claim, mining lease, authority to prospect or other crown grant under the Mining Act or any other Act relating to mining should be removed from the Warden's Court and should be decided by the Supreme Court. The amendments so provide."

That observation and quotation does not assist here.  There are no applications to review any of the decisions of the mining registrar or the mining warden by way of judicial review before the court.  Challenges to those decisions are steps on the way to the relief sought which is to prevent the grant of a mining lease.  That is not encompassed by s.370.  The extent of this Court's jurisdiction in this matter is to ascertain if there has been some manifest error of law which would warrant the intervention of the Court.
Misdescription of Portion 6V
           A critical aspect of QDA's case is the error in describing the background land as Portion 6 rather than Portion 6V in prospecting permit 50027.  There is no argument that anything other than a typographical error occurred when the "V" was omitted in the mining registrar's office.  The prospecting permit application, the application plan, the description of the land in the mining lease application certificate, the plan accompanying the mining lease application certificate, the contemporaneous letters to the landowner from the Department all refer to or depict part of Portion 6V as the land the subject of the prospecting permit and subsequent mining lease application certificate.  At no relevant time was QDA, Mr Raddatz, the owner or any other person misled as to the area of land covered by the prospecting permit and subsequent mining lease application.  Indeed as I have found QDA adjusted its mining lease application to take account of prospecting permit 50027 by deleting any reference to Portion 6V.
           QDA points to an absolute requirement in the Act for a prerequisite tenure before a mining lease application certificate can issue.  It submits that the failure to hold such a tenure over the subject land has infected every subsequent administrative step towards the grant of a mining lease.  Mr Logan has referred to Bromley v. Muswellbrook Coal Company Pty Ltd (1973) 129 CLR 342 and Hunter Resources Limited v. Melville (1987-88) 164 CLR 234 in support of QDA's contention that on a proper construction of the MR Act the failure to identify the land correctly on the face of the prospecting permit rendered subsequent acts in respect of different land invalid or a nullity.  Those cases are distinguishable.  Bromley concerned a failure to obtain a permit to mark out private land to be the subject of a mining lease pursuant to the Mining Act 1906 (NSW) when the Act, as the High Court held, required such a prior permit. In Hunter the Mining Regulations 1981 (WA) made pursuant to the Mining Act 1978 (WA) required an applicant for a prospecting licence prior to making such application to mark out the land in the manner prescribed. The applicant had marked out the tenement not in compliance with the Regulations. The relevant section in the Act was mandatory in its terms and, as the High Court found, required strict compliance where there was a competing claim. In the absence of a competing claim substantial compliance, even with the mandatory language of the section, could, per Mason CJ and Gaudron J at p.244, be sufficient.
           A mining registrar may grant a prospecting permit for land if he is satisfied that the eligible person has made a genuine application which complies with the Act and deposited the amount of security required.  A prospecting permit shall, inter alia, specify the description of land in respect of which the permit is granted.  Prospecting permit 50027 did not contain a description of the land in respect of which the permit was granted.  All the evidence supports the conclusion that the permit was granted in respect of part of Portion 6V notwithstanding the error in description.  Section 393(1) (s.11.7) provides that where the holder of or an applicant for the grant of a prospecting permit or other permit covered by the MR Act is required to do anything to comply with a provision of the Act and proves to the satisfaction of the Minister that he or she had been unable to do that thing by reason of the neglect or default of, inter alia, the mining registrar or of circumstances over which he or she did not have any control and has done all to comply with the provisions of the Act, the Minister may determine in writing that the holder or applicant has complied with that provision and shall be deemed to have complied with that provision accordingly.  That section is sufficient answer to QDA's contention that the Cadman interests were not the holders of a prerequisite tenure in respect of Portion 6V.  It is wide enough to cover a mere typographical slip or error.  The Minister received submissions from QDA which drew his attention to this error.  His direction to the mining warden to consider further matters relating to mineralisation and development of the land impliedly indicates that he has determined that the Cadman interests have complied with all other necessary provisions of the MR Act.  The section requires that the Minister determine in writing compliance with the requirement in the MR Act for a pre-existing tenure.  That has not yet occurred so far as the evidence reveals.  The Minister has been bound until trial not to do so by undertakings.  If it be thought that the error in description is not covered by s.393, the Cadman interests seek rectification of the prospecting permit to have the land correctly described and to direct the mining registrar to amend all relevant records.  No submission was directed against this relief.  In my view the Minister may determine in writing that there has been substantial compliance and make any other consequential adjustments.  I will permit further enabling submissions to be made in respect of this matter after the delivery of judgment if thought necessary.
Notice to the Landowner
           QDA has submitted that significant non-compliance with the MR Act has been the failure by the Cadman interests to give the owner of the land the requisite seven days' notice of entry pursuant to s.32 (s.3.16).  This notice as the mining registrar observed in his evidence allows a landowner to seek to have conditions not appearing on the prospecting permit imposed.  I have concluded that the endorsement on the prospecting permit indicated the owner's acceptance of a shorter time than seven days namely no further notice than the instant notice and accordingly there was compliance with the MR Act.
Notice to Local Authority
Section 252(11) (s.7.18(7)) requires an applicant for a mining lease who gives the mining registrar additional information about the application to give a copy of the information to each person required to be given a copy of the application pursuant to subsection (7)(c). Section 245 (s.7.18) sets out what must be contained in an application for the grant of a mining lease. Inter alia it requires the application to identify the mineral or minerals or purpose in respect of which the mineral lease is sought. Mr Samios for the Cadman interests has submitted that the changes to the mining lease application by the inclusion of further minerals is not "additional information" within the meaning of s.252(11). That argument is not well founded. Amendments to the application varying or adding minerals or use of the land initially set out in the application constitute in my view additional information about the application within the meaning of s.252(11). The question is whether failure to give a copy of that information to the local authority invalidates subsequent conduct in respect of the mining lease application. The local government authority has an interest in all relevant activities that are conducted within its shire but its need to be informed will vary with the nature of the activity. Part 8 of the MR Act deals with the overriding effect of the mining legislation in respect of local government planning.  Section 319 (s.8.1) requires the mining registrar to notify the local authority of the grant, inter alia, of a mining lease and its particulars.  The mining warden who entertained the initial application and the subsequent further hearings on the Minister's direction was conscious of the variation to the application in respect of the minerals.  He brought expertise and experience when exercising his jurisdiction.  He demonstrated a clear understanding of the proposed activities and was empowered to impose a range of conditions.  A failure to notify the local authority of these changes in my view could not be fatal to subsequent decisions in respect of the grant of the mining lease once the point was taken.  The warden ruled that there has been substantial compliance with the MR Act.  There is no manifest error in doing so.  Further the Minister is empowered to determine that there has been substantial compliance with the provisions of the Act.  The Minister may impose conditions.  No manifest error has been revealed.

Incorrect Marking Out of the Land

QDA contends that because the land described as background land in the prospecting permit has not been marked out then s.241(s.7.9) has not been complied with.  This is the same argument as relates to the misdescription of Portion 6V.  There is otherwise no evidence that the land and bearings have not been marked out as required by s.241.

Non-Compliance by the Mining Registrar
           QDA contends that because of the marking out of Portion 6V rather than Portion 6 and because the owner was not given seven days' notice, the mining registrar could not have been satisfied that the applicant for the grant of the mining lease had complied with the requirements of the MR Act and therefore ought not to have prepared a certificate of application for a mining lease.  This is not an application for judicial review of the decision of the mining registrar to issue the certificate in respect of mining lease application 50020.  I have already dealt with the complaints of non-compliance with the MR Act in respect of these matters.  The mining registrar applies his own understanding and expertise in respect of such applications.  The application must be made in person or by agent.  It is clear from the evidence that the mining registrar discussed the application with Mr Cadman.  No manifest error has been revealed.
Mining Warden's Recommendation
           QDA submits that the mining warden could not have been satisfied that the provisions of the MR Act had been complied with, that the area of land applied for was mineralised s.269(4)(b) or, if it was, that there would be an acceptable level of development and utilisation of the mineral resources s.269(4)(c).  As I have mentioned QDA sought to introduce evidence about the mineralisation of the land for the first time in this action.  No objection had been taken before the mining warden that the land was not mineralised nor that there would not be an acceptable level of development and utilisation of those mineral resources.  I declined to allow expert evidence to be given in respect of mineralisation of the land.  There was no suggestion that this evidence would reveal some "egregious blunder" by the warden.  QDA's submission was that the evidence of mineralisation was poor in respect of both jasper and clay.  The mining warden had received a number of reports from experts which were annexed to an affidavit of Mr Cadman.  Samples of materials were tendered and an inspection of the land by the mining warden took place.  The mining warden had reference to the tests and reports submitted to him.  He was satisfied that the applicant had sufficient resources to develop the land to an acceptable level.  In reaching this conclusion the mining warden had recourse to the extensive material provided by Messrs Cadman and Neilsen in their original application.
           It is well recognised that the person exercising the office of mining warden has particular expertise.  This is not an appeal from a decision of the Wardens Court nor is it an application for judicial review.  This Court may not substitute its opinion as to whether on the evidence the mining warden ought to have been satisfied of the matters to which I have referred.  QDA argues that the recommendation from the warden to the Minister was flawed and ought not to have been relied upon by the Minister in the exercise of his discretion.  This is notwithstanding that the MR Act requires the Minister independently to consider the matters required to be taken into account by the Wardens Court and has regard to the whole of the evidence before the Wardens Court.
           The special expertise of a mining wardens court has been recognised.  In Pacminex (Operations) Pty Ltd v. Australian (Nephrite) Jade Mines Pty Ltd (1974) 7 SASR 401 Wells J observed at p.415

"It would be absurd to profess ignorance of the character, function and work of Wardens and their Courts, who have been exercising their important jurisdictions, and doing valuable work for many years.  They perform for the mining community, to the members of which vociferous quarrels and violent disputes are not unknown, a service not dissimilar to that performed by the old courts of Piedpouldre.  A mining Warden, too, is expected to know mining and miners, and the customs, expectations, practices and attitudes of those over whom they may be called to exercise their jurisdiction much as Lord Mansfield's special juries understood the customs and practices of the bankers and merchants of old London.  He should be able to deal, decisively, authoritatively, and promptly, with disputes that arise in the field.  Unless it is demonstrated on appeal that the Warden whose judgment is called in question has committed some egregious blunder in his findings of fact, or has misdirected himself on the law, I should, I think, be slow to interfere with those parts of his judgment that emanate principally from his knowledge, understanding and assessment of the esoteric world of miners and mining tenements."

The Full Court of the Supreme Court of South Australia approved those observations in Carr v. Simnovec (1980) 26 SASR 263. King CJ said at p.268

"The Warden's Court is a special jurisdiction created by the Mining Act to resolve disputes in the mining industry.  The purpose is to have such disputes decided by Mining Wardens who are familiar with the industry.  The nature and purpose of this tribunal was considered by Wells J in Pacminex Operations Pty Ltd v. Australian (Nephrite) Jade Mines Pty Ltd, and I agree with what his Honour there said.  A Mining Warden is, in my opinion, entitled to bring to his task his knowledge of the industry generally, including what is generally known in the industry concerning its personalities and their relationships, associations and conflicts."

There is in my view no evidence of any manifest error of law or fact made by the mining warden to warrant this Court's intervention to declare his recommendation so flawed that the Minister could not have regard to it.
Failure to take into account the licence to extract
           QDA submits that the mining warden did not take into account or give sufficient weight to the QDA's entitlement under its deed with Mr Bradley and its extractive permit from the Stanthorpe Shire Council.  QDA's position is that the mining warden ought to have recommended that a mining lease not be granted to the Cadman interests because of these prior rights.  The mining warden considered arguments relating to the rights of QDA to extract the sand, gravel and rock from Portion 6V at the hearing on 21 March 1991.  This was the only ground of objection lodged by QDA.  The mining warden had inspected the land and understood the level of extraction by QDA and where that was occurring in relation to the mining proposed by the Cadman interests.  In his view there was sufficient land to be worked on Portion 5V by QDA which in his view did not make conflict likely.  He was prepared to insert any conditions that might be agreed between the parties with respect to access but noted that there was no present conflict.  In the absence of that agreement it cannot be said that his failure to give priority to QDA's entitlements under the deed made his recommendation to the Minister flawed or made that decision reviewable.  The scheme of the MR Act is to encourage mining and to give it priority.
           Counsel raised issues of some apparent conflict between provisions of the MR Act relating to access to land the subject of a mining lease, see s.40.31 (s.11.18(1)) and s.274(1)(f) (s.7.33(1)(f)) but there is no need to deal with that matter further on this hearing.

Bona Fides

QDA has pleaded that the mining lease application is colourable and has not been made bona fide.  The argument is that Mr Cadman has had a longstanding interest in the gravel on Portion 6V and indeed has extracted that material for many years with Mr Bradley's permission.  He runs a gravel business servicing the same market as QDA and would obtain some financial benefit in getting the gravel and other surface product locally.  There was a suggestion in Mr Raddatz's evidence that there was collusion between some officer(s) of the Department and Mr Cadman and/or Mr Neilsen.  This was not the subject of amendment and was not ultimately pursued.  The evidence did not persuade me that the application was not made bona fide for the purposes of the MR Act.  If the Cadman interests were under any illusions as to what could be removed from the part of Portion 6V for which they have sought a mining lease, the proposed conditions in the lease notified in 1992, the communication from Mr Bradley of December 1992 and the provisions of the MR Act particularly s.296 (s.7.5(1)), made clear their entitlements.  If they are to deal with the loose product other than as provided for in the MR Act they must negotiate with Mr Bradley and/or Mr Raddatz and/or QDA.

Conclusion
           There is no merit in any of QDA's allegations.  It was and is a straightforward matter of commercial competition.  The Cadman interests acquired rights under the MR Act before QDA was able to do so.  QDA has sought every avenue to reverse this including political means by direct recourse to the Minister without notice to the other parties and outside the scheme of the MR Act.  Had the personalities of the parties been different, as the mining warden observed, there was no necessary conflict.
           I decline to make the orders or grant the injunctions sought by the plaintiff and give judgment for the defendants.
           I will hear submissions as to costs.