United Plantations (Australia) Pty Ltd v Arco Coal Australia Inc

[1996] QSC 172

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane
  No. 1696 of 1996

[United Plantations (Australia) Pty Ltd v Arco Coal Australia Inc]

BETWEEN:

UNITED PLANTATIONS (AUSTRALIA) PTY LIMITED
  (ACN 010 267 820)
  Plaintiff
AND:
  ARCO COAL AUSTRALIA INC (ARBN 009 738 407)
  ARCO RESOURCES LIMITED (ACN 010 565 554)
               MITSUI GORDONSTONE INVESTMENT PTY LTD (ACN 002 429 763)
  MLC COAL INVESTMENT PTY LTD (ACN 060 305 044)
  Defendants

JUDGMENT  -  DERRINGTON J.

Delivered:20 September 1996

CATCHWORDS: Mines and Minerals - Mining - Plaintiff land-owner seeking to restrain Defendant mining group entering land - Mineral development licence granted to Defendants - Whether Plaintiff's land excluded from licence by virtue s.182(2) Mineral Resources Act 1989 - Whether s.182 expressed to have retrospective reference to past application for licence - Whether chief executive "accepted" lodgment of application.

Mineral Resources Act 1989, s. 182; Acts Interpretation Act 1954, s.20; Robertson v. City of Nunawading [1973] VR 819; Maxwell v. Murphy (1957) 96 CLR 261; Ku-Ring-Gai Municipal Council v. Attorney-General (NSW) (1957) 99 CLR 251; Director of Public Works v. Ho Po Sang (1961) AC 901; Purden Pty Ltd v. Registrar in Bankruptcy [1982] FLR 306; Angus Fire Armour Australia Pty Ltd v. Collector of Customs (NSW) (1988) 83 ALR 449.

Counsel:Mr P. Keane QC with him Mr D. Savage for the Plaintiff

Mr J. Muir QC with him Mr P. Ambrose for the Defendants

Solicitors:Nicol Robinson & Kidd as town agents for Magney & Rhodes for the Plaintiff

Clayton Utz for the Defendants

Hearing date :              5 September 1996

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane  No. 1696 of 1996

BETWEEN:
  UNITED PLANTATIONS (AUSTRALIA) PTY LIMITED
  (ACN 010 267 820)
  Plaintiff
AND:
  ARCO COAL AUSTRALIA INC (ARBN 009 738 407)
  ARCO RESOURCES LIMITED (ACN 010 565 554)
               MITSUI GORDONSTONE INVESTMENT PTY LTD (ACN 002 429 763)
  MLC COAL INVESTMENT PTY LTD (ACN 060 305 044)
  Defendants

REASONS FOR JUDGMENT  -  DERRINGTON J

Judgment delivered

The plaintiff is the owner of land in the Emerald coal basin and seeks to restrain the defendants from trespassing upon it.  They are a coal-mining group who claim that they are acting under the authority of a mineral development licence granted to them on 1 November 1995 and covering an area of which the relevant land is part.  On its face, the licence purports to apply to it.
In answer to this, the plaintiff pleads that by virtue of s.182(2) of the Mineral Resources Act 1989, as inserted by amendment on 1 May 1995, the land is taken to be excluded from the licence. Section 182 reads as follows:

"182.    (1)  This section applies if -

(a)the chief executive accepts lodgment of an application for a mineral development licence for particular land;  and

(b)all or some of the land covered by the accepted application is -

(i)covered by an existing mining claim or mining lease; or

(ii)included in an earlier application for a mining claim or mining lease.

(2)  Land mentioned in subsection (1)(b) that is within the boundaries of the accepted application, and its surface, ("excluded land"is taken to be excluded from the land covered by a mineral development licence granted for the land on the accepted application.

(3)However, the land is excluded land -

(a)if subsection (1)(b)(i) applies - only while it is covered by an existing mining claim or mining lease;  or

(b)if subsection (1)(b)(ii) applies -

(i)until the earlier application is abandoned or rejected;  or

(ii)while it is covered by a mining claim or mining lease granted on the earlier application.

(4)    If excluded land within the boundaries of the mineral development licence ceases to be excluded land, it is taken to be included in the mineral development licence."

Essentially the plaintiff's claim is that at the time of the chief executive's acceptance of the lodgment of the application for the mineral development licence, the relevant area was included in an earlier application by the defendants for a mining lease.  Alternatively it alleges that the application was deficient in that it did not comply with the requirements of the Act relating to the contents of such an application.  In particular, it is said that the material lodged did not describe an easement in respect of one of the parcels of land described in the application, and that the easement was not delineated on the map that was required to accompany the application.  There was another suggested deficiency but it has no substance.
           The defendant responds with the argument that although the section came into existence as an amendment before the licence was granted, and the acceptance of the lodgment of the application for it took place before the amendment;  and that consequently according to its own terms the section has no application to it.  In the alternative, they argue that the acceptance by the chief executive of the lodgment of the application for the mineral development licence occurred before they made their application for the mining lease, so that even if the section did apply, again by its own terms it would not exclude the relevant land from the licence.  As for the deficiencies in the application, the defendant submits that they were cured before the amendment came into force, which is correct;  but that in any case they did not detract from the status of the application as such for all relevant purposes.
           As many of the arguments turn on the order of events and upon the time when the lodgment of the application for the licence was accepted, a brief calendar of events showing their significant features is desirable:

21.12.94Delivery to office of chief executive of application for mineral development licence after telephone call to department of its imminent despatch.  Application received by department and placed on desk of departmental officer.  File opened by the department in relation to the application.

22.12.94Application for mining lease .

5.1.95Recording of lodgment of application on department's computer Register of Applications (MERLIN).  (Date of lodgment according to this record was later amended from 5.1.1995 to 21.12.1994.)

17.2.95"Action Initiated" in respect of the decision by the department on the application.

21.2.95Cheque for application fee accompanying the application formally received and banked by the department.

2.3.95Letter from department to defendants acknowledging receipt of the application.

1.5.95Amendment of Act introducing s.182.

1.11.95Grant of licence.

It will be noted that the application for the licence was delivered into and received by the office of the chief executive on 21 December 1995, and that this preceded by one day the filing of the application for the relevant mining lease. The issue relevant to these matters is the identification of what was necessary to constitute the "acceptance" by the chief executive, through his officers, of the "lodgment" of the application within the meaning of s.182(1). This will then determine the date of that acceptance, which will then reveal whether the application for the mining lease was "an earlier application" within the meaning of that subsection.
Although it is not revealed directly by the above catalogue of events, it is agreed by the parties that in any case the acceptance by the chief executive of the lodgment of the application took place before the introduction of s.182 on 1 May 1995. That is of significance in respect of the primary issue, that is, whether the section is expressed so as to have reference to the application at all. That is logically the first issue and, if it is resolved in favour of the defendants, it is decisive. Consequently it should be considered at once.

Does s.182 refer to this application?
A considerable part of the argument relating to this topic was directed to a discussion of the authorities concerning the attitude of the law against a construction of an ambiguous or equivocal statute that would give it retrospective application. Other time was spent in discussion of s.20 of the Acts Interpretation Act (1954), which preserves accrued rights and interests of parties or provides for the continuation of proceedings on amendment of statutory provisions upon which they were founded, where the amendment would otherwise operate to defeat them. 
           Both of these issues are predicated upon the proposition that the amendment might or does apply to effect a change to the defendants's earlier position.  However, that position is never reached if sub-s.(1), which controls the operation of the section, applies only to cases where the chief executive's acceptance of the lodgment takes place after the date of the amendment.  Because it is common ground that the acceptance in this case took place before the amendment, it would not come within the description of the circumstances referred to in sub-s.(1)(a) and so by its own definition the section would have no application.
           It is difficult to understand why in the context in which they appear, the words of the subjection, "This section applies if - . . the chief executive accepts lodgment of an application . . .", do not simply have a prospective meaning, consistently with their future-present tense in the conditional mood, without the introduction of any retrospective element:  cf. "This section applies if after the commencement of this amendment the chief executive accepts lodgment . . .(etc)".
           The primary reason then for this conclusion is that this is the ordinary and reasonable meaning of the words used.  If a statute provides that if an official does something, then certain consequences will follow, it does not pretend to say that those consequences will follow if the official did it before the statute began.  If it were to intend to have such an effect in the present case, the passage should have read:

"This section applies if . . . the chief executive accepts or has accepted lodgment (etc.)"

It is possible to introduce an element of the past to a present situation by reference to a present state of affairs that had its origin in a past action.  An example of this appears in the same section where there is reference to " . . . all or some of the land covered by the accepted application is . . covered by an existing mining claim or mining lease;  or . . (is) included in an earlier application for a mining claim or mining lease."  Note that although this speaks in the present tense, it refers to the past in respect of an existing claim that must have been obtained in the past, and to an earlier application that must have been made in the past.
           Because of this mode of expression in the section, it is possible that those past things may have occurred prior to the date of the amendment.  This is what is meant by the following passage from Robertson v. City of Nunawading [1973] V.R. 819 at 824:

"The other statement, that of Dixon J (in Maxwell v. Murphy (1957) 96 CLR 261 AT 267), is as follows:-

'The general rule of the common law is that the statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events.'

It is to be observed that this principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that:  Maxwell on Interpretation of Statutes, 12th ed., pp 216-7."

To apply this reasoning to the critical passage, "accepts lodgment", would mean that it could apply to the circumstance where the lodgment preceded the amendment;  but the same does not apply to the acceptance, for its usage in this context carries no such element of the past.  If that had been intended, it may arguably have been achieved by drafting such as:  "This section applies if -

(a)there is an accepted lodgment of an application for a mineral development lease (etc.)"

However, the position here is quite different.  Where as here the expression refers not to the present effect of a past act but to the conditional performance of the act itself, then it cannot reasonably have reference to retrospective activity. 
           The second reason for the above construction is that it is reasonable.  The section effected a dramatic change in the potential position of concerned parties, who could adjust their actions in future dealings according to the Act;  but such an adjustment could not be effected to past conduct or events.  It was reasonable for the legislature to respect the position of those who had arranged their affairs in the past on the faith of the law as it then stood by ensuring that the change should operate only from the date of the amendment.  The purpose of the amendment was not such as to prompt interference with their justifiable expectations.
           The third reason is that if the words of the section applied to the past acceptance of lodgment of applications, there is no reason why they should not extend to those applications that had been granted prior to the amendment.  In a practical sense, an intention to produce such a result is very unlikely.  If it were unintended, then it would require a major feat of constructive surgery on the words used to achieve one result without the other.  And if it be suggested that there should be an implied exception in respect of applications granted before the amendment, it could be asked how that could be rationally distinguished from applications the lodgment and acceptance of which had also taken place before the amendment.
           Together and even separately, these are powerful reasons why the expression should be found to apply only to those cases where the acceptance by the chief executive takes place on or after the date of the amendment.  There was very little, and certainly no acceptable, argument explaining how the section did not have this meaning or why it should not have it.
           If necessary, the defendants could also have enjoyed some indirect comfort from the trend of authorities relating to retrospectivity, where the language of the legislation "is fairly capable of either interpretation" (Maxwell v. Murphy (supra) per Dixon J at 267).  While the statement of the principle in that case referred to the effect of retrospectivity on the rights and obligations of parties, the principle extends to its effect on the legal character on the legal consequences of past events and transactions.  Fullagar J said in Ku-Ring-Gai Municipal Council v. Attorney-General (NSW) (1957) 99 CLR 251 at 269:

"What the rule really means is that prima facie a statute must not be construed so as to change the legal character or the legal consequences of past events and transactions."

While there may be argument as to whether the defendants had any relevant rights at the time of the enactment of the amendment, and the better view is probably that they did not, any retrospective operation of the section in relation to these matters would certainly have changed the legal character or the legal consequences of the past events and transactions.  There is no reason why these features, with their very serious consequences to the defendants, should not be afforded the same protection as acquired legal rights in the event of ambiguity.  In principle they are analogous.
           The legal character or legal consequences of past events and transactions in the present case are of a different order of quality from the benefits which the complaining parties sought unsuccessfully to protect under this principle in Director of Public Works v. Ho Po Sang (1961) A.C. 901 and associated cases. They are of no assistance.
In the circumstances it is unnecessary to discuss the effect of s.20 of the Acts Interpretation Act.

What Amounts to Acceptance of Lodgment of the Application
           The above determination makes it unnecessary to consider this point but, lest that be wrong, and out of respect for the valuable argument of learned counsel on both sides, it is desirable to discuss this point.
           The meaning to be given to the concept of acceptance of the lodgment of the application must take into account certain features of the Act.  The first is that it has legal consequences that affect the rights of indeterminate other parties whose opportunity to pursue benefits relating to mining exploration and to obtain rights in respect of the subject land may be circumscribed by it, with quite serious consequences.  The second feature is that other provisions of the Act make it clear that acceptance has a different meaning from lodgment and may not necessarily be contemporaneous.
           Unfortunately, the Court was not favoured with direct evidence of the procedures followed by the department of the chief executive as to the receipt and acceptance of applications lodged with it.  This makes it necessary to rely upon such inferences as may be available from the fairly scant evidence provided, and in the event of deficiency, the onus of proof will have importance.  Because the defendants have a licence prima facie entitling them to enter the subject lands, the onus will fall upon the plaintiff, as the party alleging trespass, to prove that the defendants are not so entitled.  Consequently, any deficit in the evidence on this issue will work against the plaintiff's case.
           Where, as with an application of this kind, serious consequences follow on its lodgment, and where the requirements of an application, as prescribed by the section, are moderately complex, it is to be expected that the process of acceptance should be somewhat meticulous and take some time.
           There are authorities which show that a lodgment does not occur merely upon presentation of the material at the place of lodgment, and there must be some form of acceptance by the party with whom the lodgment is made.  These authorities however are directed to the issue as to whether or not a presentation of the material that may not have been accepted amounts to a lodgment or not, rather than to investigate the circumstances that might amount to an acceptance.  Their effect is that there is no lodgment without acceptance:  Purden Pty Ltd v. Registrar in Bankruptcy [1982] 64 FLR 306; Re Kiss and Repatriation Commission (1995) 38 ALD 443.
           It is argued that the section's specific reference to acceptance, when acceptance is already an essential element of lodgment, predicates an intention that some formal type of acceptance is required.  This does not follow, for the process, of which lodgment and acceptance though different are complementary, can be a protracted one from the time of presentation to the time of acceptance. As the time of acceptance may well not take place until a significant time after the commencement of the lodgment, and as the section requires the identification of a particular moment within that process, it is justifiable to specify the acceptance of the lodgment as the relevant moment.  Accordingly, it was necessary to mention acceptance even though its existence was implied by the reference to lodgment.  This means that its mention does not imply any special form or quality about it.
           In general, the authorities do not say that the mere physical receipt of documents presented for lodgment amounts to acceptance of their lodgment.  The recipient must have the opportunity to give appropriate consideration to acceptance of the lodgment, for it will often be necessary to accept receipt of the material for examination as to its fitness before its lodgment can be accepted.  As it has been explained, depending upon the nature of the documents, the degree of complexity involved in the decision to accept them for lodgment and the importance of the lodgment will have an influence on what is meant by lodgment and the acceptance of it.  In those cases where the circumstances predicate that the recipient should have an opportunity for inspection before accepting the lodgment of material, the difference between mere receipt and acceptance of lodgment is emphasised when the material is delivered by post or courier, rather than presented by the lodging party in person.

           The position may be different in circumstances where the context affects the matter.  For example, in the context of an appeal process with time limitations, the acceptance may complete the lodgment by the mere physical acceptance of proffered documents:  Angus Fire Armour Australia Pty Ltd v. Collector of Customs (NSW) (1988) 83 ALR 449.
In a different context such as this where other considerations apply and the lodgment relates to a different order of business, it is fitting that physical acceptance is not enough without a mental willingness to accept the physical transference as a lodgment. Because of the legal consequences to others, it might be thought that the chief executive should have the opportunity to refuse to accept the lodgment, and this may need the opportunity to peruse the material that can be taken only with physical possession. It may be because of this contextual factor that it was seen fit to refer to the acceptance rather than the lodgment of the application, a mark of emphasis, in s.182. In those circumstances, mere physical acceptance does not answer the description of acceptance of lodgment within the meaning of the section.
           In the present circumstances, the preliminary telephone advice given to the officer of the department that the application was being sent has no relevance.  The receipt of delivery of the application and its being placed on an examining officer's desk, associated with the opening of a departmental file, means no more than that the documents were received for consideration of their acceptance.  In this, it is significant that the accompanying cheque was not immediately accepted and banked, which would have been expected according to normal audit requirements if the lodgment had been accepted.
           As the calendar above shows, the lodgment of the application was not noted on the department's computer register, Merlin, until 5 January 1995, at which time the date of lodgment was described as that same day, but it has since been amended to show it as 21 December 1994.  This inscription in cyberspace does not determine the issue for the department's view of the meaning of lodgment does not influence the result, which must depend on the construction of the section;  and in any case, the issue is when the lodgment was accepted.
           However, the department's omission to enrol the lodgment on Merlin before 5 January 1995 is fairly significant.  Because it is the register of such applications which is used to inform the public of important matters, the acceptance of a lodgment should be placed on the register as soon as possible.  If that happened, it might mean that the consideration of the matter and the acceptance of lodgment had not been completed until at least on or about 5 January.  This is not to say that even the insertion of this information into the Register necessarily meant that the lodgment had been accepted.  It may have been the department's view of the presentation of the application for lodgment that it constituted a lodgment that should be placed on the Register, even though it may not have yet been accepted;  or even that the mere fact of presentation was also important information that should be registered.
           This delay of entry on the Register fortified by the delay in banking the cheque for the lodgment fee until even later, makes it probable on the evidence provided that the acceptance and the acceptance did not take place until at least after 22 December 1994, which is the critical date, though it is not possible to say with greater precision when it did occur.

The Validity of the Application
When the lodgment was accepted, although there may have been some minor defects, the application complied so substantially with the requirements of the section that it was a valid application at the time, that is, at a time before the amendment that introduced s.182. Alternatively it was perfected by the answers to the department's requisitions before that time. Consequently the section did not apply to it. However, if that section did apply to it, its validity would not have affected the exclusive consequences of the application for a mining lease that antedated its lodgment and acceptance, and the land would have been excluded from the application and from the grant that was subsequently made in response to it.

Order
           The action is dismissed with costs, including reserved costs, if any, to be taxed.