Ulan Coal Mines v Minister for Mineral Resources (No. 2)

[2008] NSWCA 251

New South Wales

Court of Appeal

CITATION:	Ulan Coal Mines v Minister for Mineral Resources & Anor (No. 2) [2008] NSWCA 251
HEARING DATE(S):	Written Submissions
JUDGMENT DATE:	30 October 2008
JUDGMENT OF:	Hodgson JA at 1; Tobias JA at 2; Bell JA at 3
DECISION:	1. Allow the appeal and quash the order made by the primary judge with respect to the costs of the hearing; 2. Otherwise dismiss the appeal; 3. The appellant and the second respondent are to bear their own costs of the hearing before the primary judge; 4. The second respondent is to pay 75 percent of the appellant’s costs of the appeal as agreed or assessed.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 (NSW) Mining Act 1992 (NSW) Mining Amendment (Improvements to Land) Act 2008 Mining Amendments (Improvements to Land) Bill 2008
CATEGORY:	Consequential orders
CASES CITED:	Ulan Coal Mines v Minister for Mineral Resources [2008] NSWCA 174 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 Waters v PC Henderson (unreported) NSWCA 6 July 1994
PARTIES:	Ulan Coal Mines ACN 000 189 248 (Appellant) Minister for Mineral Resources (First Respondent) Moolarben Coal Mines Pty Limited ACN 108 601 672 (Second Respondent)
FILE NUMBER(S):	CA 40811/07
COUNSEL:	B Walker SC / R Beazley (Appellant) T Hale SC / H Younan (First Respondent) M Leeming SC / C H Withers (Second Respondent)
SOLICITORS:	Minter Ellison (Appellant) I V Knight (First Respondent) John Harold Davis (Second Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	30025/07
LOWER COURT JUDICIAL OFFICER:	Smart AJ

CA 40811/07
SC 30025/07

HODGSON JA
TOBIAS JA
BELL JA

Thursday 30 October 2008

Ulan Coal Mines Pty Ltd v Minister for Mineral Resources (No 2)

Judgment

1 HODGSON JA: I agree with Bell JA.

2 TOBIAS JA: I agree with Bell JA.

3 BELL JA: The Court published its reasons for the determination of this appeal on 8 August 2008: Ulan Coal Mines v Minister for Mineral Resources [2008] NSWCA 174. The Court deferred the making of formal orders in order to give the parties an opportunity to address the form of the declaration and any consequential orders. The parties were directed to file written submissions within 21 days of 8 August 2008.

4 Written submissions were received from each of the parties in accordance with the Court’s direction. The appellant, Ulan Coal Mines (Ulan), filed submissions in reply on 5 September 2008. On 10 September 2008, the second respondent, Moolarben Coal Mines Pty Ltd (Moolarben), filed further submissions and sought leave to rely on them in the event that the Court was minded to give leave to Ulan to rely on its submissions filed on 5 September. In the event, it is not necessary to consider Moolarben’s application for leave in this respect. On 25 September it filed further submissions consequent upon the Mining Amendments (Improvements to Land) Bill 2008 being passed in both Houses of the Parliament. In light of the passage of the amending legislation, Moolarben’s further submissions were stated to substantially replace those which had earlier been served.

5 By letter dated 30 September 2008, the Crown Solicitor’s Office notified the Registrar of this Court that the Mining Amendment (Improvements on Land) Act 2008 (the Amending Act) received the Royal Assent on 30 September 2008. Subsequently, by letter dated 2 October 2008, the Crown Solicitor’s Office corrected its earlier advice, stating that the assent was given to the Amending Act on 25 September 2008.

6 The Amending Act, relevantly, amends s 62 of the Mining Act 1992 (NSW) (the Act) by the omission of subs (1)(c) and the insertion instead of subs (1)(c) in these terms:

“on which is situated anything that is taken to be a significant improvement under clause 23A of Schedule 1”,

7 The Amending Act inserts Part 11 in Schedule 6 to the Act. Part 11 contains the following provisions:

“(1) If, in relation to an application for a mining lease that was lodged before the commencement of this clause:
(a) the owner of any improvement situated on the land to which the application relates was notified of the application in accordance with clause 21(3) and (4) of Schedule 1, and
(b) the 28-day period (as referred to in clause 21(4)(c) of that Schedule) ended on or at any time before 7 August 2008, and
(c) the owner did not, within that 28-day period, make a claim under clause 23A of that Schedule in relation to the improvement,
the owner of the improvement is, to the extent that the owner’s consent to the granting of the lease was required because of section 62(1)(c) of this Act (as in force immediately before the commencement of this clause), taken to have given that consent.
(2) Subclause (1) applies regardless of whether the mining lease the subject of the application was granted before the commencement of this clause.
(3) Any mining lease granted before the commencement of this clause that would have been validly granted if subclause (1) had been in force when it was granted is validated. To remove doubt, this subclause extends to any mining lease that may otherwise be invalid because of the decision of the New South Wales Court of Appeal in Ulan Coal Mines v Minister for Mineral Resources & Anor [2008] NSWCA 174 or any order resulting from that decision.”

8 In light of the provisions of the Amending Act, Moolarben submits that there is no utility in making the declaration sought by Ulan. It submitted that the appeal should be dismissed, since the conclusion of the primary judge with respect to the construction of s 62(1)(c) has been confirmed by retrospective legislation. As the appeal was by way of re-hearing, it is to be determined on the law in force at the time of determination: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 107.

9 The only order sought by Ulan on the hearing of the appeal (apart from costs) was a declaration that mining leases 1605 and 1606, granted by the first respondent, the Minister, are void. In light of the retrospective operation of the Amending Act, that declaration cannot now be made, and there would be no utility in making a declaration as to voidness as at some earlier time.

10 It remains to deal with the costs both of the proceedings before the primary judge and of the appeal.

11 The primary judge ordered that Ulan should pay Moolarben’s costs (subject to Ulan submitting to the contrary within seven days). Moolarben submitted that this Court should not interfere with his Honour’s order since Ulan failed on most of the factual issues, which it was said had occupied the hearing time at trial. The proceedings were before the primary judge on 18, 20-21, 24-28 September, and 3 and 11 October 2007. A number of issues were litigated. These included the three construction issues that were the subject of the appeal and in respect of which Ulan was successful concerning s 62(1)(c) of the Act and s 75V of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act). Issues that were litigated before the primary judge but not on appeal included whether the notice caused to be published by the Minister on 5 August 2005 complied with cl 24(4) of Schedule 1 of the Act; whether Moolarben’s notices of 3 and 5 August 2005 complied with s 51 of the Act and cl 21(4)(b) of Schedule 1 of the Act and whether Moolarben’s notice of 1 November 2006 as to MLA290 complied with the requirements of each of these provisions. His Honour described “as a principal complaint” made by Ulan that cll 16 & 9 of the Mining Regulation required that a topographical/cadastral map published by nominated government bodies be submitted to, and served on, the Department with the mining lease application. Ulan failed on each of these issues.

12 Ulan contended that each of the 49 structures particularised in schedule A to its Further Amended Summons was a substantial and valuable improvement within the meaning of s 62(1)(c) of the Act. Moolarben did not accept that any of the improvements were substantial and valuable improvements for the purposes of the Mining Act. The parties were agreed that his Honour should determine which, if any, of the structures identified in schedule A were improvements within s 62(1)(c). At the hearing, Moolarben did not press its claim in relation to the improvements listed as stations 14, 15, 16, 23, 29, 34, 44 (as to the fence), 45, 46, and 49 (part). His Honour found that, of the claimed improvements that were pressed, some were substantial and valuable improvements for the purposes of the provision and others were not.

13 Ulan submitted that while it did not succeed at the hearing before the primary judge on matters which were not the subject of appeal and it failed at first instance and on appeal on the service issue, nonetheless, it should have succeeded on the “dominant issues of the hearing at first instance” and, accordingly Moolarben should pay its costs both of the hearing before the primary judge and on appeal: Waters v PC Henderson (unreported) NSWCA 6 July 1994.

14 Ulan also contended that Moolarben should pay its costs of the hearing before the primary judge and on appeal on the basis that the entire litigation could have been avoided if Moolarben had advised the Minister that there were substantial and valuable improvements on Ulan’s land. The history is set out in the principal judgment at paragraphs [102] – [120]. In my opinion, it would not be appropriate to determine the costs of the proceedings before the primary judge on the basis that these had been occasioned by Moolarben’s conduct in remaining silent.

15 Contrary to Moolarben’s submission, I do not consider that the Amending Act confirms retrospectively that the primary judge’s conclusion as to the construction of s 62(1)(c) was correct. Ulan should have succeeded before the primary judge on the law as it then stood with respect to the construction of s 62(1)(c) of the Act and s 75V of the EPA Act. This would have entitled it to declaratory relief. It lost on a number of issues that it agitated at the hearing and each party had a measure of success with respect to the determination of the factual issue concerning which structures constituted substantial and valuable improvements. In my opinion, in the circumstances, the appropriate order is that each party bear its own costs of the proceedings before the primary judge.

16 Moolarben submitted that the costs of the appeal should reflect the parties’ success on the arguments that were litigated, with the result that it should pay Ulan’s costs of the appeal with respect to the first and second of the grounds identified in the principal judgment in [34] and Ulan should pay its costs of the appeal with respect to ground 3 and those grounds of appeal abandoned by Ulan prior to the hearing. Ground 3 occupied very little time on the hearing of the appeal. However, there were a large number of grounds that were addressed in the written submissions filed in support of the appeal, which were abandoned before or at the hearing. In the circumstances it is appropriate that Moolarben pay 75 percent of Ulan’s costs of the appeal.

17 Ulan also sought an order that the Minister pay its costs of the appeal.

18 On the appeal, the Minister chose to take an active role, briefing Senior Counsel to make submissions concerning the construction of s 75V of the EPA Act. The Minister submitted that he ought not to be required to pay Ulan’s costs since Ulan had not demonstrated that its costs were increased to any material extent by reason of the Minister’s participation in the proceedings. In support of this submission, Mr TF Hale SC, who, with Ms Younan, appeared on the Minister’s behalf, noted that written submissions had been filed on the Minister’s behalf five days before the hearing and that there was no written reply. The submissions both written and oral made on the Minister’s behalf were “relatively brief”.

19 Moolarben adopted the submissions that were made by Mr Hale on the Minister’s behalf and, in my opinion, in these circumstances, it is correct to say that the Minister’s participation did not involve material increase in the length of the appeal. The Minister should not be required to pay Ulan’s costs of the appeal.

20 For these reasons, the orders that I propose are:

ORDERS

1. Allow the appeal and quash the order made by the primary judge with respect to the costs of the hearing;

2. Otherwise dismiss the appeal;

3. The appellant and the second respondent are to bear their own costs of the hearing before the primary judge;

4. The second respondent is to pay 75 percent of the appellant’s costs of the appeal as agreed or assessed.
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