Redland Shire Council v Stradbroke Rutile Pty Ltd [1974] HCA 4; (1974) 133 CLR 641 (13 February 1974)

HIGH COURT OF AUSTRALIA

REDLAND SHIRE COUNCIL v. STRADBROKE RUTILE PTY. LTD. [1974] HCA 4; (1974) 133 CLR 641

Local Government (Q.)

High Court of Australia
Menzies(1), Gibbs(2) and Stephen(3) JJ.

CATCHWORDS

Local Government (Q.) - Rating - Mineral lease - Special mineral lease - Application for special mineral lease - Whether land subject of application occupied by applicant - Occupation - Entitlement to possession - Crown lands - Person - Whether Crown person in occupation - Local Government Acts 1936 (Q.), as amended, ss. 3(1) "owner", 24* - Mining Act 1898 (Q.) as amended, ss. 30, 40* - Acts Interpretation Acts 1954 to 1962 (Q.), s. 32 (Q.) "occupier".

* The relevant sections of both Acts are set out in the judgment of Gibbs J., 133CLR641 at pp 649-654.

HEARING

Brisbane, 1973, May 23, 24;
Hobart, 1974, February 13. 13:2:1974
APPEAL from the Supreme Court of Queensland.

DECISION

1974, February 13.
The following written judgments were delivered:-
MENZIES J. This is an appeal and cross-appeal from a decision of W.B. for the financial year 1967-1968 by the appellant upon a number of mining tenements within its local authority area on Stradbroke Island which were held by the respondent. (at p644)

2. The tenements were of several different types:

A. Special mineral lease
S.M.L. 974-issued 25th March 1965.
B. Applications for a mineral lease and for special mineral mineral leases
M.L. 1000, S.M.L. 985, 986, 1001, 1025, 1026, 1028, 1029.
C. Applications for special mineral leases upon reserves
S.M.L. 973-wholly within water supply reserve no. 884.
S.M.L. 975-wholly within reserves; partly within quarry reserve 1671 and partly within recreation reserve no. 1362.
S.M.L. 1024-partly within water supply reserve no. 2134. (at p644)

3. Section 24(1) (i) of the Local Government Acts 1936-1968 (Q.) provides so far as is relevant that "All land is rateable for the purposes of this Act, with the following exceptions only, that is to say:

(a) Crown land which is unoccupied or is used for public purposes;
(b) Land in the occupation of the Crown, ..." (at p644)

4. Sections 24(3) and (4) deal with the calculation of the ratable value of any ratable land held from the Crown under a tenure other than fee-simple. Section 27 provides that a rate shall be levied upon the owner of any ratable land and shall be recoverable from him. (at p644)

5. It is necessary with respect to each of the different types of tenements to consider the following questions:

(1) Is the land ratable?
(2) If so, what is its ratable value?
(3) Who is the "owner" liable to pay any rate? (at p644)

A. Special mineral lease

6. It was common ground that the special mineral lease which had in fact been granted was ratable land. I have had the advantage of reading the judgment of Stephen J. and agree with his reasons for holding that the ratable value of this land should be determined in accordance with s. 24(4) (b) and that the respondent company is the "owner" of the land so as to be liable to pay rates in respect of it. (at p644)

B. Applications for a mineral lease and for special mineral leases

(i) Is the land ratable?

7. The respondent company claimed that these lands were not ratable because they fell within either exemption (a) or (b) of s. 24(1) (i) of the Local Government Acts. It was common ground that these lands were Crown lands which were vacant, i.e. they were not in the actual occupation of the Crown, the respondent or any third party. (at p645)

8. The respondent company contended that the lands fell within exception (a) - Crown land which is unoccupied - because the lands were vacant and the words "unoccupied" and "occupation" in s. 24(1) mean an actual occupation, rather than any kind of notional occupation. The definition of "occupier" in s. 3 of the Local Government Acts and s. 32 of the Acts Interpretation Acts 1954 to 1962 (Q.) is against such a contention. "Occupier" means "The person in actual occupation of any land, or if there is no person in actual occupation the person entitled to possession thereof..." It seems to me that, without any further statutory provision relating to the interpretation of words, this definition assists to determine what is meant in the statute by the words "occupied" and "unoccupied". Furthermore, however, s. 32 of the Acts Interpretation Acts provides that derivatives of any term to which a meaning is assigned by an Act shall have a corresponding meaning. Surely the object of this provision is to ensure consistency and I would be loathe to attribute different meanings to derivatives from one root - even if only one of the derivatives is actually defined. The process of word formation to which s. 32 refers is not, I think, inevitably confined to resort to the original root. My reluctance would be the greater when, as here, the defined meaning is itself one that is not in disconformity with common usage. (at p645)

9. The respondent submitted that if meanings were given to "unoccupied" and "occupation" corresponding to the definition of "occupier" in s. 3, the lands would fall within exemption (b) - Lands in the occupation of the Crown - because the Crown was "entitled to possession" even though no one was in actual occupation. I am of the opinion that the definition of "occupier" in s. 3 must be restricted to persons other than the Crown for, otherwise, exemption (a) - Crown land which is unoccupied - could never have any operation and would be meaningless. Accordingly these lands are not within exemption (b). (at p645)

10. Unlike s. 15(1) of the Mining Acts which expressly entitles the holder of a miner's right to take possession of certain land, s. 40, which deals with an applicant in respect of a mining lease, does not in terms give a right to possession, merely a right to exclude others. However it has long been established because an applicant for a mining lease is under an obligation under the Mining Regulations to enter upon the land and work it, he is entitled to possession; see Deep Creek Gold Dredging Co. v. Gympie Quartz Crushing Battery Co., per Griffith C.J. (1897) 8 QLJ 131, at p 134 . (at p646)

11. Accordingly, because the respondent is entitled to possession, these lands are not "unoccupied" and do not fall within exemption (a) of s. 24(1) (i). (at p646)

12. For the above reasons, I am of the opinion that these lands are ratable lands because they do not come within any of the excepted categories.

(ii) What is its ratable value?

13. It is clear that the ratable value of the land is to be calculated in accordance with s. 24(4) (a), i.e. "rateable lands ... held from the Crown under lease or license, other than a lease or license mentioned in subsection three of this section". The type of tenure that the lands are held under - they are lands held under applications for a mineral lease or for a special mineral lease - is not mentioned in s. 24(3). (at p646)

14. Applying s. 24(4) (a), the ratable value of the land is "ascertained by multiplying by twenty the annual rent payable under the lease or license at the time when the valuation is made". (at p646)

(iii) Is the respondent the "owner" of the ratable land so as to be liable for payment of rates?

15. Section 3 of the Local Government Acts defines "owner" as "The person other than Her Majesty who for the time being is entitled to receive the rent of any land, or who, if the same were let to a tenant at a rack-rent, would be entitled to receive the rent thereof: the term includes any lessee from the Crown, and any superintendent, overseer, or manager for such lessee residing on the holding, and in the case of a gold field or mineral field also includes the holder of a mining lease or miner's homestead lease and the lawful occupier of a business area or residence area under the laws for the time being in force relating to mining..." (at p646)

16. The respondent contended that an "owner" in respect of a mining lease was restricted to holders of mining leases "in the case of a gold field or mineral field" and that these tenements were not within a gold field or mineral field. This contention attempts to give the latter part of the definition of "owner" a restrictive meaning and ignores the width of the opening words of the definition and that the latter part is in form an extension of, not a restriction upon, those opening words. (at p647)

17. Because of s. 43 of the Mining Acts, which permits an application for a mining lease or any interest therein to be sublet, I am of the opinion that the respondent is "a person other than Her Majesty who, if the land were let to a tenant at a rack-rent, would be entitled to receive the rent thereof" and thus "the owner" of the land for the purposes of rating. (at p647)

C. Applications for special mineral leases upon reserves

(i) Is the land ratable?

18. The various reserves have been proclaimed pursuant to the Land Acts and have been set aside for public purposes. I am of the opinion that they are not ratable lands because they fall within exemption (a) of s. 24(1) (i) of the Local Government Acts - Crown land used for public purposes. (at p647)

19. It appears from Pt V of the Mining Acts - Mining on Reserves, Residence Areas and Business Areas - that mining cannot be carried out on reserves without the consent of the Governor in Council. Accordingly an applicant for a mining lease over a reserve does not have the same rights to work the land as an applicant for a mining lease over ordinary land. It may be that once a mining lease has been granted over a reserve, the land may cease to be "used for public purposes" within the meaning of exemption (a) but that question does not arise in this case. (at p647)

20. So much of S.M.L. 1024 as is outside water supply reserve no. 2134 is ratable land for reasons set out above in (B). (at p647)

(ii) What is its ratable value?

21. The part of S.M.L. 1024 outside the water supply reserve has a ratable value calculated in accordance with s. 24(4) (a) of the Local Government Acts. (at p647)

(iii) Is the respondent the "owner" so as to be liable for rates?

22. For similar reasons to those above, the respondent is liable to pay the rates. (at p647)

23. W.B. Campbell J. found in favour of the appellant in respect of all the tenements, except the special mineral lease and the application for special mineral leases upon reserves. The appeal related only to these tenements. I am of the opinion that the appeal should be allowed in part, so far as it relates to the special mineral lease. The cross-appeal challenged the decision in relation to the remaining tenements. For the reasons already stated I consider that the cross-appeal should be dismissed. (at p648)

GIBBS J. Under the Local Government Act, 1936 (Q.) (as amended) a local authority is required in each year to make and levy a general rate equally upon the ratable value of land in the area (s. 21(1)). A rate once made is to be levied by the service of a rate notice on the owner of the land and the amount of a rate so levied is payable by the owner to the local authority (s. 27(1)). The appellant, a local authority within the Act, made a rate in the financial year 1967-1968 and served on the respondent rate notices for the purpose of levying the rate in respect of twelve areas of land on North Stradbroke Island, which comprised a special mineral lease held by the respondent under the Mining Act, 1898 (Q.), as amended, and land held by the respondent under ten applications for a special mineral lease and one application for a mineral lease. The respondent refused to pay the rates demanded and the appellant brought an action in the Supreme Court of Queensland, claiming declarations of entitlement and an order for payment. The learned trial judge held that the respondent was not liable for rates in respect of the special mineral lease, or in respect of land within three of the applications for special mineral leases which was reserved for water supply, quarry and recreation purposes, but he held that the respondent was liable in respect of the other land the subject of the applications, and made declarations accordingly. From this decision the appellant has appealed and the respondent has cross-appealed. (at p648)

2. In relation to the special mineral lease, two questions arose - whether the respondent was the owner within the meaning of the Local Government Act and whether the ratable value of the land was to be determined in accordance with sub-s. (3) or sub-s. (4) of s. 24 of that Act. The learned trial judge held that the respondent was the owner but that sub-s. (3) was applicable and that since, in accordance with that sub-section, the ratable value was the valuation made by the Valuer-General, and since in fact no valuation had been made, the claim for rates must fail. (at p648)

3. It is convenient, in dealing with the questions that fall for decision, to speak as though the statutory provisions in force during the relevant financial year are still in force. In fact, however, the provisions of the Local Government Act have since been materially amended by the Local Government Act and Another Act Amendment Act, 1970 (Q.), and the Mining Act, 1898 (Q.) has been repealed by the Mining Act, 1968 (Q.). (at p649)

4. By s. 3(1) of the Local Government Act, unless the context otherwise indicates or requires, "owner" is to have the following meaning:

"The person other than His Majesty who for the time
being is entitled to receive the rent of any land, or who, if the
same were let to a tenant at a rack-rent, would be entitled to
receive the rent thereof: the term includes any lessee from
the Crown, and any superintendent, overseer, or manager
for such lessee residing on the holding, and in the case of a
gold field or mineral field also includes the holder of a mining
lease or miner's homestead lease and the lawful occupier
of a business area or residence area under the laws for the
time being in force relating to mining..."

It was not disputed that the words "any lessee from the Crown", if they stood alone, would include the holder of a special mineral lease. However, the respondent's submission was that the definition, by going on to mention expressly the case of a gold field or mineral field, revealed an intention that the only holders of mineral leases who were intended to be brought within the definition were those who held leases in a gold field or mineral field. In my opinion, however, the use of the words "also includes" indicates that the words referring to the case of a gold field or mineral field were intended to add to the definition and not to restrict the operation of the preceding words. If the words referring to the case of a gold field or mineral field are understood in this way they are to a certain extent repetitious, but not entirely so, since the earlier words of the definition might not have included the lawful occupier of a business area or residence area. Moreover, the provisions of s. 24(3) and (4) , to which I am about to refer, show clearly that mining leases, whether or not within gold fields or mineral fields, were intended to be ratable, and if the definition of "owner" were given a construction that excluded the holders of mining leases (a term which as I shall shortly show includes mineral leases) other than those in gold fields and mineral fields, the provisions of s. 24(3) and (4) would to a certain extent be nugatory. For these reasons I concur with the conclusion of the learned trial judge that the word "owner" is not restricted in the manner submitted by the respondent. (at p649)

5. The question then is how the ratable value of the land comprised in the special mineral lease (which it was conceded was ratable land) is to be determined. Section 24(3) of the Local Government Act provides that the ratable value of any ratable lands held from the Crown under any of the tenures described in the sub-section shall be the valuation of the unimproved value of the land, as if such land were granted by the Crown in fee simple, made by the Valuer-General. The tenures specified in the sub-section which are material for present purposes are the following:

"(i) Coal-mining lease;
(j) Special coal-mining lease;
(p) Miner's homestead lease or miner's homestead perpetual
lease;
(q) Business area or residence area within the meaning of
the Mining Acts;
(r) Gold-mining lease or mineral lease;
(s) Mining dredging claim or dredging lease."

(at p650)

6. The sub-section contains a further provision dealing with the value of a portion of a mining lease occupied for residence or business purposes; it is unnecessary for present purposes to consider the meaning of this provision, which may possibly be a redundant survival of the section in its earlier form. Section 24(4), so far as it is material, provides:

"The rateable value of any rateable lands -
...
(b) Held from the Crown under mining lease or mining
tenure other than a mining lease or mining tenure
mentioned in subsection (3) of this section
shall be deemed to be the valuation ascertained by multiplying
by twenty the annual rent payable under the lease or
license at the time when the valuation is made."

Sub-section (3) refers to a "mineral lease" and sub-s. (4) to a "mining lease". Neither of these expressions is defined in the Local Government Act, but by the Mining Act, 1898 (Q.) (as amended), "mineral lease" is defined to mean "a lease for the purpose of mining for any mineral other than gold, or for purposes connected with such mining", and "mining lease" means "a gold-mining lease or a special gold-mining lease or a mineral lease or a special mineral lease or a dredging lease". Provision for the grant of mineral leases is made by s. 30 of the Mining Act. As amended, that section contains the following provision:

"In cases where the Minister is satisfied that by reason of
the nature of the occurrence of any mineral or minerals
other than gold, coal, mineral oil or petroleum, the mining
operations on the land will be difficult and costly, a lease to
be called 'a special mineral lease' may be granted under this
section; and all the provisions of this Act relating to mineral
leases shall apply to special mineral leases except where
otherwise expressly provided."

It is, I think, clear that the definition of "mineral lease" in the Mining Act would include a special mineral lease, which is merely a particular kind of mineral lease in respect of which the Legislature has seen fit to make special legislative provision. Further, the words "mineral lease" in their ordinary sense would, in my opinion, describe a special mineral lease. If the words of s. 24 (3) (r) are given their plain and natural meaning they will, in my opinion, apply to a special mineral lease. (at p651)

7. However, the appellant submits that there are a number of indications in the Local Government Act that it was not intended that the words "mineral lease" in s. 24(3) (r) should include a special mineral lease and that the history of the legislation supports this conclusion. The appellant submits that if the words "gold-mining lease or mineral lease" in s. 24(3) (r) are construed as including a special gold-mining lease and a special mineral lease, s. 24(3) will then contain mention of all five forms of mining lease that are embraced by the definition of that term contained in the Mining Act, and that the reference to "mining lease" in s. 24(4) (b) will then be otiose; there may, it is said, be other mining tenures under the Mining Act but no other forms of mining lease under that Act. Moreover, it is submitted that the fact that the Legislature deemed it necessary expressly to mention special coal-mining leases as well as coal-mining leases in s. 24(3) suggests that the view was taken that the expression "coal-mining lease" would not have included "special coal-mining lease". (at p651)

8. Section 24(3) (r) was inserted in the Local Government Act in its present form in 1944 (Valuation of Land Act of 1944, Sch. 1, s. (1) (2)). By the same Act, s. 24(4) was inserted in the Local Government Act, but par. (b) of that sub-section then read:

"(b) Held from the Crown under mining lease other than
a miner's homestead lease or miner's homestead perpetual
lease and other than a business area or a residence area
within the meaning of the Mining Act and other than a goldmining
lease or mineral lease."

Those words were not aptly chosen, since a business area or a residence area would not have come within the expression "mining lease" from which the Legislature proceeded to exclude them. However, it is clear that at that time s. 24(4) (b) did not provide for the determination of the ratable value of the only two forms of mining lease then expressly defined as such by the Mining Act, which at that time made no provision for the grant of special gold-mining leases, special mineral leases or dredging leases. By amendments made to the Mining Act in 1948 provision was made for three new forms of lease - dredging leases (Mining Acts Amendment Act of 1948, s. 6), special gold-mining leases (Mining Acts Amendment Act of 1948 (No. 2), s. 3) and special mineral leases (Mining Acts Amendment Act of 1948 (No. 2), s. 6) - and the present definition of "mining lease" was then inserted (Mining Acts Amendment Act of 1948 (No. 2), s. 2). After the amendments made to the Mining Act in 1948 the question whether s. 24(4) (b) referred to a special gold-mining lease and a special mineral lease depended, as it does now, on whether those leases were comprised within the description of "gold-mining lease" and "mineral lease" as used in s. 24. Dredging leases, however, which were not expressly mentioned in s. 24, might well have fallen within the scope of s. 24(4) (b); however, subsequently (by s. 2 of the Local Government Acts Amendment Act of 1962) dredging leases were brought within s. 24(5) of the Local Government Act (which had previously made provision for ascertaining the value of a mining dredging claim), but in 1965 sub-s. (5) was omitted from s. 24 and par. (s) of s. 24(3) was inserted in its present form (by s. 3 of the Local Government Acts Amendment Act of 1965). In the meantime, the Coal Mining Act, 1925 (Q.), as amended, was in 1964 amended (by s. 6 of the Coal Mining Acts Amendment Act of 1964) to make provision for the grant of special coal-mining leases. At that date neither special coal-mining leases nor coal-mining leases were mentioned in s. 24(3) of the Local Government Act. Finally, in 1966 pars (i) and (j) were inserted in s. 24(3) and s. 24(4) (b) was put into its present form (s. 6 of the Local Government Acts Amendment Act of 1966). (at p652)

9. In my opinion a consideration of the history of this legislation does not assist the appellant's contentions. In 1944, when s. 24(4) was first enacted, the provisions of s. 24(4) (b) would have been nugatory if the words "mining lease" had been understood as referring only to a mining lease as defined in the Mining Act, because as then so defined that expression referred only to gold-mining leases and mineral leases, which were expressly excluded from s. 24(4) (b). However, the paragraph would have had room for application if it had extended to mining leases other than those under the Mining Act, of which coal-mining leases provided an obvious example. The words of s. 24(4) (b) in their original form therefore themselves provided a strong indication that a "mining lease" in that sub-section was not intended to be restricted to a gold-mining lease and a mineral lease. Similarly today it is only if the words "mining lease" in s. 24(4)(b) are confined to mining leases under the Mining Act that it can necessarily be predicated that those words in par. (b) would be nugatory. I can see nothing in par. (b) in its present form to suggest that the object of its amendment in 1966 was to confine the meaning of the words "mining lease" in the paragraph to a mining lease under the Mining Act. If those words are not so limited, par. (b) has a general residual operation, and would be applicable to any sort of mining lease that might be granted under the Mining Act or any other legislation in force in Queensland. The express mention of special coal-mining leases would have been more significant if the section had already referred to coal-mining leases, but since pars (i) and (j) were inserted in the sub-section at the same time, the fact that the Legislature included a "special coal-mining lease" as well as a "coal-mining lease" may be put down to an abundance of caution. At any rate the presence of pars (i) and (j) does not provide enough reason for departing from the ordinary meaning of the words "mineral lease" in par. (r), which, when the amendments were made in 1966, had remained unchanged in the Act for many years. (at p653)

10. Although the provisions of sub-ss. (3) and (4) present obvious difficulties of construction, I have finally reached the conclusion that there is no sufficient justification for construing the words of par. (r) of sub-s. (3) in other than their natural meaning which, as I have said, would include a special mineral lease. I am therefore in agreement with the learned trial judge that the ratable value of the land comprised in the special mineral lease is to be determined in accordance with s. 24(3) of the Local Government Act. It follows that I would dismiss the appeal on that point. (at p653)

11. I now turn to the applications for a mineral lease and for the special mineral leases. In relation to these lands the first question that arises is whether the lands held under the applications were ratable lands. By s. 24(1)(i) of the Local Government Act all land is ratable for the purpose of that Act with the exceptions enumerated in that sub-section. The exceptions relevant for present purposes are the following:

"(a) Crown land which is unoccupied or is used for public
purposes;
(b) Land in the occupation of the Crown ...;
(c) Land in the occupation of any person or corporation
which is used for public purposes, also land vested in or
for the time being placed under the management or
control of any person or corporation under or in pursuance
of any Statute ... for public recreation ...;
(d) Land vested in, or in the occupation of, or held in trust
for, a Local Authority ..."

The lands the subject of the applications were all Crown lands. The learned trial judge said that he was persuaded on the evidence that the respondent was not in the relevant financial year in actual occupation of any of the lands the subject of the applications. He went on to say that "if there is no person in actual occupation the lands would be occupied by the" (respondent) "if the latter was 'entitled to possession thereof'". In saying this his Honour indicated that he considered that the word "unoccupied" in s. 24 (1)(i)(a) took its meaning from the definition of "occupier" contained in s. 3(1) of the Local Government Act, which reads:

"The person in actual occupation of any land, or if there
is no person in actual occupation the person entitled to possession
thereof ..."

His conclusion, that the respondent, as the applicant for the leases, was entitled to possession under the Mining Act, and was therefore the "occupier" of them, shows that he held that no one else was in actual occupation of them. His finding of fact that the land was not in actual occupation was not the subject of any challenge. (at p654)

12. Whereas the grant of a lease itself gives the lessee a right of possession, it is obvious that "apart from statutory enactment, the mere application for a lease can give no title to or rights over the land applied for": Hamp v. Meredith; Ex parte Meredith (1913) St R Qd 180, at p 185 . It is therefore necessary to turn to the provisions of the Mining Act and regulations thereunder, to see whether they confer upon an applicant for a mineral lease or special mineral lease any right to possession of the land the subject of the application. By s. 3, "mining tenement" is defined to mean (inter alia) "any land held under a mining lease or application therefor". Each piece of land subject to the applications therefore constituted a mining tenement and might rightly have been regarded as held on a form of mining tenure, but that does not mean that the holder was necessarily entitled to possession. No section of the Mining Act expressly gives an applicant any right to possession, although there are some sections - particularly ss. 34A, 43, 45B, 48A and 115 - that may be regarded as consistent with the view that an applicant may in certain circumstances be entitled to possession. The section most strongly relied on, as recognizing a right to possession, is s. 40 which provides (inter alia) as follows:

"The entry upon, occupation of, or interference with, any
ground of which a mining lease has been applied for by any
person who shall not prior to such application have been
in the lawful occupation of such ground, shall at any time
after the lodging of such application, and until and unless
such application shall be refused, or such entry, occupation,
or interference shall have been authorised by the Governor,
be deemed to be a trespass or encroachment. And the applicant
for the said ground may proceed for such trespass or
encroachment, and for any damages in respect thereof, and
for the recovery of any gold or other mineral taken by such
first-mentioned person from the said ground, or for the value
thereof before any warden's court."

A proviso to the section makes the applicant's right conditional upon his having complied with the regulations. Normally, of course, trespass is a remedy available to a person in possession of land, but the fact that by s. 40 an entry upon land of which a mineral lease has been applied for is deemed to be a trespass does not necessarily mean that the applicant is entitled to possession. Although in Hunter Douglas Australia Pty. Ltd. v. Perma Blinds (1970) 122 CLR 49, at pp 65-67 , Windeyer J. pointed out that the word "deemed" does not necessarily import artificiality or fiction, it is clear that in many contexts it does so. In St. Aubyn v. Attorney-General, Lord Radcliffe said [1951] UKHL 3; (1952) AC 15, at p 53 :

"The word 'deemed' is used a great deal in modern legislation.
Sometimes it is used to impose for the purposes of a
statute an artificial construction of a word or phrase that
would not otherwise prevail. Sometimes it is used to put
beyond doubt a particular construction that might otherwise
be uncertain. Sometimes it is used to give a comprehensive
description that includes what is obvious, what is uncertain
and what is, in the ordinary sense, impossible."

The word "deemed" in s. 40 is in my opinion intended to introduce a consequence that might in some cases have been in doubt and that might in other cases have been impossible. The section gives to an applicant for a mining lease, whether or not he is entitled to possession, rights of a defensive kind - to prevent others from entering and mining the land. It does not, however, give the applicant any right to possession which he does not already have. In Plant v. Rollston (1894) 6 QLJ 98, at p 99 , Griffith C.J., speaking of a statutory provision similar to s.40, said:

"The applicant acquires in effect by his mere application a
provisional license from the State to mine for gold in the
land for a lease of which he applies."

With respect, this dictum, which is true in some cases, cannot be taken as stating the effect of s. 40, as I think Griffith C.J. himself recognized in a later case, when he based the applicant's right to possession on the existence of an obligation, created by a regulation, to enter and work the land. In Deep Creek Gold Dredging Co. v. Gympie Quartz Crushing Battery Co., Griffith C.J., speaking for the Full Court of Queensland, said (1897) 8 QLJ 131, at p 134 :

"It is further provided by reg. 84 that, when no objections
have been lodged against the grant of a lease within thirty
days from the date of the application being lodged with the
Warden, the ground applied for shall be worked until the
decision of the Government is made known. The applicant,
therefore, is under an obligation, as soon as he has made an
application in compliance with the regulations to enter upon
the land and work it. I think it necessarily follows that, being
bound to enter upon the land and work it, he is also entitled
to possession of the land, and is entitled to damages for any
injury done to him by a person who is not entitled to interfere
with his possession. But that right depends upon the
circumstance that he is required by law to enter into possession ..."

A regulation to the same effect is still in force - reg. 100 of the regulations under the Mining Act, which reads as follows:

"(1) The labour conditions of land held under application
for a mining lease shall be the same as those prescribed by
the Act with respect to land held under mining lease.
When no objection is lodged against an application for a
lease, work shall commence at a date not later than seven
days after the hearing of the application; in all other cases
work shall commence at a date not later than seven days
after notice has been given to the applicant that a lease will
be granted.
(2) Failure to comply with the labour conditions in
respect of an application for a lease shall render the holder
liable to the same consequences as are consequent upon the
breach by the lessee of a mining lease of any of the covenants
contained in the lease."

(at p656)

13. There are other regulations which suggest that, in some circumstances at least, an applicant will be entitled to possession: regs. 97, 106, 109 and 154 provide examples. The equivocal indications which these regulations provide may be compared with the provisions of s. 15 (1) and s. 23A (2) of the Mining Act which expressly confer a right to possession on the holder of a miner's right and the holder of an authority to prospect respectively. Indeed it might be argued that the express grant of a right to possession which is made by these provisions should lead to the conclusion that no similar grant should be implied in construing reg. 100. However, it seems to me that when reg. 100 continued in force provisions similar to those which had been considered in Deep Creek Gold Dredging Co. v. Gympie Quartz Crushing Battery Co. (1897) 8 QLJ 131 it was intended that the regulation should continue to have the same effect as the earlier provision, and that an applicant for a mining lease, who is required to enter upon the land and work it, should have a right to possession of the land. In my opinion the Act and regulations proceed on the basis that an applicant's right to possession, when it exists, is derived by inference from the obligation to commence work under reg. 100. However, under that regulation, when an objection has been lodged, the duty to work which gives rise to the corresponding right to possession does not arise until seven days after notice has been given that a lease will be granted. There are obvious reasons for denying possession to an applicant where an objection has been lodged, and the postponement of the obligation to commence work in such a case entails the conclusion that it was not intended that, once an objection had been made, an applicant should have a right to possession until after he had been notified that the lease had been granted. (at p657)

14. In the present case it appears from the pleadings, and from admissions made to this Court, that objections were in fact made to all of the applications and that in no case, except application no. 975, was the respondent given notice, at any time before 30th June 1968, that a licence would be granted. It follows, in my opinion, that the respondent was not obliged by reg. 100 to commence work on any of the land the subject of the applications other than that comprised in application no. 975 at any time during the year in which the rate was made. (at p657)

15. For these reasons, I hold that the respondent was not entitled to possession of the land subject to any of the applications except application no. 975. Since for other reasons I have reached the same conclusion with regard to application no. 975, it does not become necessary to decide the difficult and not unimportant question whether land is not "unoccupied" within s. 24 (1) (i) (a) if any person has a right to possession of it. In the present case the land was in fact unoccupied, and no one (except no doubt the Crown) had a right to possession of it; the land was therefore within s. 24 (1) (i) (a) and not ratable. (at p658)

16. In the case of application no. 975 the respondent was given notice, before 30th June 1968, that a lease would be granted. Of the land subject to that application which was situated within the local authority area, part had been reserved under the Land Act, 1910 (Q.) (as amended) for the purpose of a quarry and the rest had been reserved under the same Act for camping and recreation purposes, and in both cases the land has been placed under the control of the appellant as trustee. The learned trial judge held that this land was not ratable as being "land vested in ... a local authority" (s.24(1)(i)(d)), and although this was disputed by the appellant it is now conceded that the part of the land which was in a camping and recreation reserve came within s. 24(1)(i)(c) of the Local Government Act, as land for the time being placed under the management or control of a corporation (the appellant) under a statute (the Land Act) for the purposes of public recreation, and was therefore not ratable land. This leaves for consideration the land placed under the control of the appellant as a reserve for a quarry. The evidence does not show whether or not this land was in fact physically used as a quarry. However, the appellant had certain statutory powers in respect of the reserve; at the material time these powers were contained in the Land Act, 1962 (Q.), as amended. By s. 339 of that Act the trustee of a reserve is given power, subject to the approval of the Governor in Council, to make by-laws (inter alia) for the following purposes:

"(b) protecting the land ... from trespass, injury or misuse;
(c) regulating the use and enjoyment of the land
..."

Moreover, by s. 343 a trustee has power, subject to the prior approval in writing of the Minister, to lease the land. Section 350 of the Land Act, 1962 (Q.), as amended, provided as follows:

"The trustees of land granted in trust or of a reserve
shall not permit or allow any person or body corporate to
occupy the whole or any part of the land so granted or reserved,
for any purpose contrary to or inconsistent with the
purpose for which the land was so granted or reserved:
Provided that, except with the prior consent in writing of
the Minister, the trustees shall not in any circumstances
permit a person to occupy the land or any part of the land
so granted or reserved for a period longer than one month,
and whether continuously or intermittently."

These provisions make it clear enough that no one other than the trustee of a reserve would be entitled to possession of it unless granted possession by the trustee, and are quite inconsistent with the idea that an applicant for a special mineral lease could by making the application become entitled to possession of land the subject of the application which was comprised in a reserve. The question, however, is whether the respondent was given a right to possession by any provision of the Mining Act. By s. 46 of the Mining Act there is power to grant a mining lease over land comprised in a reserve. Any such lease is subject to a condition that the lessee shall not disturb the surface of the land or do any act which affects or disturbs or is likely to affect or disturb the enjoyment of such surface by persons entitled thereto except in accordance with the consent of the Governor in Council first obtained (s. 46(3)(b)). The Mining Act is silent as to the position of an applicant for a mining lease over a reserve. As I have said, the right which an applicant in general obtains to possession of the land comprised in an application for a mining lease is based on the requirement, inferred from reg. 100, that he should enter into possession. It is apparent that there is a conflict between the provisions of the Land Act, which give the trustee of a reserve power to regulate its use, and in effect forbid a trustee to allow an applicant for a mining lease to occupy a reserve for any purpose inconsistent with the purpose of the reservation, and those of the Mining Act and regulations, which permit a mining lease to be granted over a reserve and give an applicant for a mining lease generally a right to possession (when objection has been lodged) not later than seven days after notice has been given that a lease will be granted. This conflict has to be resolved in accordance with the ordinary rules of statutory construction. Section 46 of the Mining Act is a special provision dealing with the grant of mining leases over reserves, whereas the provisions of the Land Act deal with reserves generally. It seems right to hold that the general provisions of the Land Act were not intended to interfere with the special provisions of s. 46 or, in other words, that s. 46 creates an exception to the provisions of the Land Act. Once a mining lease is granted, therefore, the lessee can take possession under the lease notwithstanding the provisions of s. 350 of the Land Act or the existence of any by-law that would otherwise have forbidden him to take possession. However, reg. 100 is not a special provision dealing with applications for mining leases over reserves; it deals with applications for mining leases generally. There is thus a conflict between two general statutory provisions, one in an Act and one a regulation, one giving control of a reserve to the trustee and expressly forbidding him to permit the occupation of a reserve for purposes inconsistent with its reservation and the other by implication granting a right to possession. I can see no justification for holding that the general provisions of reg. 100 should prevail over the contrary provisions of the Land Act. I conclude that it is only when a lease is actually granted that the lessee becomes entitled to possession of land subject to the lease but comprised in a reserve; an application for a mining lease over land in the reserve does not confer that right. Any difficulty that might otherwise have been created for an applicant in fulfilling his duty to work the land may be met by the grant of an exemption under reg. 104, and exemptions were in fact granted from time to time in respect of the land subject to application no. 975 in the present case. I should perhaps add that the application for special mineral lease no. 975 was not for the purpose of working a quarry, but for mining mineral sands. It follows that in my opinion the respondent was not at any material time entitled to possession of the land subject to application no. 975 which was reserved as a quarry, and that on any view of the meaning of the word "unoccupied" in s. 24(1)(i) (a) this land also was Crown land which was unoccupied within that paragraph and was not ratable land. (at p660)

17. For the reasons I have given, I hold that none of the land comprised in the applications for a mineral lease and for special mineral leases was ratable. I need not then consider a further contention that the respondent was not the "owner" of that land. (at p660)

18. I would dismiss the appeal and allow the cross-appeal. (at p660)

STEPHEN J. Stradbroke Rutile Pty. Ltd., a company engaged in the winning of mineral sands on Stradbroke Island in Moreton Bay, Queensland, is the holder of a special mineral lease and is also the applicant for the grant of ten special mineral leases and one mineral lease, all in respect of land on that island and all within the local authority area of the Shire of Redland. (at p660)

2. In the financial year 1967-1968, rates were levied against the company in respect of the areas of land the subject of each of these twelve mining tenements and the company objected thereto. In an action for recovery of the amount of these rates in the Supreme Court of Queensland the learned trial judge concluded that the company, as an application holder, was liable to rates in respect of the areas to which the eleven applications related but went on to hold that to the extent to which those areas included Crown reserves they were excluded from ratability. His Honour also held that a particular basis of valuation other than that adopted by the council should apply to the land the subject of the one special mineral lease which the company held. It was against these two latter findings that the council has appealed; the company has cross-appealed in respect of the conclusions of the learned trial judge favourable to the council including his finding that it was generally liable for rates on land the subject of lease applications and of its special mineral lease. (at p661)

3. I will deal first with the proper basis of valuation of the land within the company's one special mineral lease. (at p661)

4. It is common ground that that land is ratable land; whether the company is its owner and liable to pay rates is in dispute. With this aspect I shall deal after adverting to the question of valuation. The council contends that, contrary to his Honour's conclusion, the value of that land should be ascertained by the special formula provided for in s. 24(4) of the Local Government Act 1936-1968 rather than by reference to unimproved values, as would be the case were the general provisions of s. 24 (3) to apply. (at p661)

5. Section 24(4) applies to any ratable lands held from the Crown under "mining lease or mining tenure other than a mining lease or mining tenure mentioned in sub-section (3) of this section" and it deems the valuation to be twenty times the annual rent payable under the relevant lease or licence; it was this basis of valuation which the council had in fact adopted but which it failed to uphold before his Honour. Section 24(3) enumerates a great variety of tenures under which land may be held from the Crown; included in these is "(r) gold-mining lease or mineral lease". The ratable value of ratable lands so held is to be its unimproved value and it was this basis of valuation for which the company contended and which his Honour upheld. (at p661)

6. The issue then is whether land held under a special mineral lease is held under a "gold-mining lease or mineral lease" as enumerated in s. 24(3) (r) or is, on the contrary, in the words of s. 24(4), held under a mining lease not being a mining lease "mentioned in subsection (3) of this section". (at p661)

7. The language of s. 24, when it describes the various tenures held from the Crown, uses language taken from the various Acts which create those tenures and uses it in the senses defined in those Acts, so that defined terms should, in s. 24(3), be given their defined meanings; "mineral lease" in s. 24(3) should therefore bear its defined meaning as given by s. 3 of the Mining Act, in which it is defined as "a lease for the purpose of mining for any mineral other than gold, or for purposes connected with such mining". A special mineral lease is "special" only because the Minister considers that mining operations will be difficult and costly - s. 30, that Act consequently providing special advantages which holders of such leases may enjoy. Accordingly the phrase "mineral lease" in s. 24(3) (r) in its defined sense would be wide enough to encompass a special mineral lease. However whether it is intended to do so is not so clear as to require the rejection of indications to the contrary, upon which the appellant relies. (at p662)

8. Three reasons are urged why special mineral leases should not be regarded as one of the kinds of mining leases mentioned in s. 24(3). First it was said that there are in all, under the Mining Act, five types of mining leases: gold mining leases, mineral leases, dredging leases, special gold mining leases and special mineral leases; each is included in the Mining Act's definition of "Mining Lease" and the reference in s. 24(4) to "mining lease" is a reference to them all. However s. 24(3) mentions by name only the first three of these, doing this in pars (r) and (s). If, then, par. (r), by its reference to "mineral lease", is to be taken to include reference to special mineral leases there will remain no types of mining leases to which s. 24(4) (b) can apply; special gold mining leases must, by parity of reasoning, be taken to be included in par. (r) and all five types of mining leases will, in the words of s. 24(4), then be "mentioned in subsection (3)" so that s. 24(4) (b) will, in its reference to mining leases, have no operation. (at p662)

9. Then attention is drawn to the separate enumeration, in pars (i) and (j) of s. 24(3), of "coal mining lease" and "special coal mining lease"; it is said that if it were thought necessary specifically to enumerate the latter the failure to refer specifically, in s. 24(3) (r) and (s) respectively, to special gold mining leases and special mineral leases assumes added significance. (at p662)

10. Lastly reliance is placed upon the quite complex history of the amendments made from time to time to the Mining Act and Local Government Act as casting some light upon the meaning of s. 24(4) (b). It suffices to say that at the date when s. 24(4) (b) for the first time came to refer to mining leases "other than those mentioned in subsection (3)" there were then in existence under the Mining Act the five types of mining leases and all the relevant parts of s. 24(3) were in their present form. This certainly suggests that it was not intended that all types of mining leases should fall within s. 24(3) and none within s. 24(4). (at p663)

11. I think that there is real ambiguity involved in the use, in s. 24(3) (r), of "mineral lease". This arises, in essence, from the fact that the Mining Act, while in the definition of "mining leases" apparently regarding special mineral leases as a class of lease distinct from mineral leases, nevertheless defines the latter phrase in terms wide enough to include the former. This doubt existing, the foregoing considerations do, to my mind, resolve the matter in favour of the council. Special mineral leases and special gold mining leases should not, I think, be treated as being "mentioned" in s. 24(3) but rather as falling within s. 24(4) (b). I would therefore allow the council's appeal on this point; the land within this special mineral lease falls to be valued, as contended for by the council, in accordance with the formula prescribed in s. 24(4). (at p663)

12. There remains the point whether the company was the "owner" of this land the subject of the special mineral lease so as to be liable to be rated in respect of it. "Owner" is so defined in s. 3(1) as to include "any lessee from the Crown" and the company is such a lessee. The learned trial judge accordingly concluded this point in favour of the council. The definition of "owner" goes on to refer to the case of gold and mineral fields and to provide that within such fields the meaning of "owner" includes the holder of a mining lease; it was urged on behalf of the company, both at first instance and on this appeal, that this supplied a reason for giving to "any lessee from the Crown" a meaning excluding from its scope lessees of mining leases. The learned trial judge rejected this submission after an examination of the legislative history of the reference to gold and mineral fields; I am content to adopt his Honour's conclusion on this aspect and his reasons for that conclusion. The company is, in my view, liable to be rated in respect of the land comprised in this special mineral lease. (at p663)

13. Although the question whether areas of land the subject of lease applications are ratable lands is raised only in the company's cross-appeal I turn to it now since, on the view which I take, it disposes of the other matters argued on this appeal. (at p663)

14. The company contends that the learned trial judge should have held that none of the lands the subject of lease applications was ratable land; all were exempt because they fell within one or other of pars (a) or (b) of the exceptions in s. 24(1) of the Local Government Act. (at p663)

15. Paragraph (a) of s. 24(1) excepts "Crown land which is unoccupied or is used for public purposes;", it is common ground that all the lands in question are Crown land, none of them appears to have been actually occupied either by the Crown or by any third party and the learned trial judge found on the evidence that the company was not in actual occupation of any of them. The question is whether they are "unoccupied" in the sense in which that word is used in par. (a). There is no definition in the Local Government Act of "occupied" or of "unoccupied" but the Acts Interpretation Act provides, in s. 32(e), that in every Act, subject to contrary intent, "derivatives of any term to which a meaning is assigned by that Act shall have a corresponding meaning", and "occupier" is defined in s. 3(1) as "the person in actual occupation of any land, or if there is no person in actual occupation the person entitled to possession thereof". (at p664)

16. In reliance upon that provision of the Acts Interpretation Act the learned trial judge interpreted "unoccupied" in par. (a) of s. 24(1) as bearing a meaning corresponding to the defined meaning of "occupier". The lands were not in the actual occupation of anyone. The company had rights over the lands, these being conferred upon it by the Mining Act as an applicant for mineral leases. Those rights entitled it to possession. An "occupier" as defined included a person entitled to possession and to give to "unoccupied" a corresponding meaning involved making it inapplicable when any person was entitled to possession of the land in question. Hence the land was not unoccupied Crown land and thus excepted from ratability. It was, on the contrary, ratable land. His Honour also determined that the lands did not fall within the exception in par. (b) of s. 24(1). Concluding that the lands were ratable his Honour further held that the company was the "owner" of those lands as defined in the Local Government Act. Accordingly, liability for rates being based upon ownership of ratable land, the company was liable to be rated on lands within the area of its lease applications, subject only to particular exclusions where lands within the area of a lease application was subject to a particular Crown reservation. (at p664)

17. The company, by its cross-appeal, challenged each of the steps by which his Honour reached these conclusions. The first step taken by his Honour was to hold, for the reasons already mentioned, that the lands subject to lease applications did not fall within par. (a) of s. 24(1). (at p664)

18. In my view the definition of "occupier" in s. 3(1) of the Act cannot be used to give any special meaning to "unoccupied". Section 32(e) of the Acts Interpretation Act appears to me to have no direct application here; it is concerned only with derivatives of defined terms and "occupied", the past participle of the verb "to occupy", is not a derivative of the noun "occupier", nor, of course, is its converse, "unoccupied"; each is derived from the verb. If s. 32(e) plays any part in the interpretation of "unoccupied" it is, I think, only that, by expressly conferring upon derivatives of words a meaning corresponding to that of the word from which they are derived, it rather suggests that where the section is inapplicable the meaning of a defined word is not to be applied to words in some way related to them but not themselves defined. (at p665)

19. Section 32(e) apart, what effect does the definition of "occupier" have upon "unoccupied"? The point is not without authority; in two decisions of the Full Court of New South Wales it was held that a definition of "owner" in the Motor Vehicles (Third Party Insurance) Act 1942 (N.S.W.) threw no light upon the meaning of the undefined word "owned" used in that legislation (Helme v. Fox (1948) 65 WN (NSW) 250 , and Genders v. Ajax Insurance Co. Ltd. (1950) 50 SR (NSW) 280 ). However on appeal to this Court in the latter case [1950] HCA 47; (1950) 81 CLR 470 a different view was taken of whether the meaning of "owned" was to be controlled by the definition of "owner". The Court observed that such an interpretation would enable the legislation to work harmoniously and said that "so far as the rationale of the provisions goes, everything points to the word 'owned' being used in the sense of 'owner' as defined" (1950) 81 CLR, at p 483 . The "formal difficulty" that it was the latter word only that was defined was overcome by an examination of the legislation, which revealed that on occasion "owner" and "owned" was used without discrimination; the choice of which form was to be used was accidental, the words being intended to be co-extensive in their application. The conclusion reached was that "to refuse to allow the word 'owned' to be controlled by the definition of 'owner' where other considerations point so strongly to a correspondence of meaning would be pedantic" (1950) 81 CLR, at p 483 . (at p665)

20. In the present case the formal difficulty which the Court there referred to again exists and there are not, I think, present those factors which in Genders' Case [1950] HCA 47; (1950) 50 SR (NSW) 250; 81 CLR 470. enabled that difficulty to be overcome. The Local Government Act does not appear to employ "occupied" and "occupier" indiscriminately and in the same sense, so that they are shown to be co-extensive in application. Rarely are the two words used in the one section or in the same context; s. 52(19) (ii) does provide such an instance but the language of that paragraph, which speaks of a building or land which a person occupies "under" an owner and which later refers to a person so situated as "such occupier", suggests that there "occupier" is not, in any event, being used in its defined sense. On other occasions when "occupier" is used, such as ss. 35(22), 49(4), 41, 42 (with its special definition of "occupier"), 50(4), (5) and (8) and 52(3) and (32) "occupied" is not employed at all. Where "occupied" appears, as in s. 39(1) and (11) , "occupier" is not used, indeed in those two sub-sections "occupied" appears in a context suggesting that actual occupation is meant. (at p666)

21. There are other indications which go to negate the view that the defined meaning of "occupier" should be applied to "unoccupied". There is one instance in the definition section of the Act, s. 3, of a clear intention that the meaning of a defined term should apply not only to that term but also to related terms; the defined term is "subdivision"; its definition begins with these words: "'subdivision', 'subdivide' and similar expressions mean and refer to dividing land into parts..." This explicit reference to "similar expressions" affords a contrast to the wording of the definition of "occupier". (at p666)

22. Again, the familiar drafting technique of adding at the end of a definition a provision which carries over to other forms of words the defined meaning is one in common use in Queensland statutes; one instance, in point here, will suffice, in the Peanut Industry Protection and Preservation Act the noun "package" is defined in s. 3 and the definition concludes by providing that the verb "pack" and its derivatives "shall have a corresponding inclusive meaning", the draftsman having presumably taken the view, correctly I think, that "pack" was not itself any derivative of "package", any more than "unoccupied" is of "occupier", so that s. 32(e) of the Acts Interpretation Acts would not suffice to produce the desired result. The use of this technique in other legislation is some indication, albeit slight, that in its absence a defined meaning should not be taken to affect the meaning of words other than that defined. (at p666)

23. Section 3(1) operates so as to give specific and exclusive meaning to defined words and is not merely expansive of their ordinary meaning so as to confer additional meanings while leaving their ordinary meaning unaffected. This provides some reason for being rather slower than might otherwise be the case in attributing these special, defined meanings to terms other than the very terms defined. The opening words of s. 3(1) are themselves quite precise in indicating the scope of the section and give no encouragement to any wide operation of the definitions; they read:

"In this Act, unless the context otherwise indicates or requires,
the following terms have the meanings set against
them respectively, that is to say: - ". (at p667)

24. Moreover, there is, in my view, nothing in the Local Government Act which suggests, as did the legislation in Genders' Case [1950] HCA 47; (1950) 50 SR (NSW) 250; 81 CLR 470. , that only by applying to "unoccupied" the extended defined meaning of "occupier" can the scheme of the Act operate harmoniously; the contrary is rather the case. The scheme of s. 24 (1) (i), which identifies those lands which are to be ratable, is to declare all land to be ratable and then to provide a large number of exceptions, the first two of which are

"(a) Crown land which is unoccupied or is used for public
purposes;
(b) Land in the occupation of the Crown, whether of any
Department of the Commonwealth, or of any Department
of the State of Queensland: but this shall not be
held to include lands rented in towns by the Crown from
persons or corporations".

If in par. (a), "unoccupied" is given its ordinary meaning no particular inconvenience or disharmony occurs although the scope of the exception is enlarged beyond that which it would have if "unoccupied" means, applying the definition of "occupier", a condition in which there is no person either in actual occupation or entitled to possession; but for all that appears this may be the true legislative intent. (at p667)

25. If, on the contrary, the definition of "occupier" is applied to "unoccupied" this immediately gives rise to some difficulty of interpretation; this lies in identifying any unoccupied Crown land to which exception (a) can ever apply. Being Crown land, the Crown will be entitled to possession of it unless it had disposed, for the time being, of its right to possession. If the Crown is a "person entitled to possession" within the meaning of the definition of "occupier" it must follow that there will never be any unoccupied Crown land because the Crown's right to possession will then operate to convert it, for the purposes of the Act, into land occupied by the Crown. (at p667)

26. Against this it may be contended that the Crown is not a "person" within the meaning of that word in the definition of "occupier" but it is noteworthy that it was thought necessary, in the definition of "owner", also in s. 3(1), expressly to exclude the Crown by the words: "The person other than His Majesty who etc." Moreover, Hodson L.J. said in Boarland v. Madras Electric Supply Corporation Ltd. (1954) 1 Ch 525, at p 528 , "that the word 'person' in an Act of Parliament is apt to include the Crown there is no doubt". The other members of the Court took a like view, as had Upjohn J. at first instance; and see In re Mitchell, deceased, per Wynn-Parry J. (1954) 1 All ER 52, at p 58 . It is therefore, I think, by no means clear that "person" in the definition of "occupier" would not include the Crown. (at p668)

27. Finally there is, I think, another substantial ground for not importing into the term "unoccupied" in s. 24(1)(i) concepts originating in the definition of "occupier" in s. 3(1). In that definition care has been taken to ensure that all land will have in relation to it some person who can be described as the occupier; in local government legislation it is obviously of convenience for a variety of purposes that duties and sanctions imposed on or against occupiers should not prove ineffective in relation to some land merely because no one is in actual, physical occupation of it. When, however, Parliament legislates by reference to different categories of land and chooses as one of these categories land which is unoccupied a quite different result is aimed at; a distinction is being drawn between two categories of land by reference to the physical condition of that land and the purpose (if any) to which it is put by the person entitled to possession of it. In such a context there seems no good reason to depart from plain meaning, particularly if to do so is to destroy one of the categories, as will occur if nothing can be found to fit the category "unoccupied" because no land which is actually unoccupied will lack some person who is entitled to possession of it. (at p668)

28. There is, I think, for the reasons stated above, much to be said for giving to "unoccupied" in s. 24(1)(i) its ordinary meaning rather than a meaning derived from the special meaning which, by definition, s. 3(1) has bestowed upon "occupier". This is the construction of s. 24(1)(i) which I think should be adopted. (at p668)

29. It follows that if the areas of land the subject of lease applications were "unoccupied", in the ordinary sense of that word, at the relevant time they will not be ratable. His Honour said, in the course of his reasons for judgment, that he was persuaded on the evidence that the company was not, in the relevant financial year, in actual occupation of any lands the subject of the eleven lease applications and went on to speak of those lands as lands in respect of which there was "no person in actual occupation". As I understand that finding it carries with it the consequence that the lands were not occupied in the ordinary meaning of that term - Newcastle City Council v. Royal Newcastle Hospital (1959) AC 248, at pp 255-256 . On the contrary the lands were unoccupied. (at p669)

30. Accordingly I conclude that the areas of land the subject of the eleven lease applications all fell within the exception from ratability referred to in par. (a) of s. 24(1)(i). I would therefore allow the respondent's cross-appeal on this aspect. (at p669)

31. This conclusion makes it unnecessary to deal with the appellant's contentions concerning such of the lease application areas as comprise reserved lands. It also makes it unnecessary to consider the arguments concerned with the effect of relevant mining legislation upon a lease applicant's possession of the land the subject of such an application. (at p669)

ORDER

Save as to lands comprised in special mineral lease no. 974 appeal dismissed with no order as to costs. Cross-appeal allowed with costs.

Order of the Supreme Court set aside and in lieu thereof order as follows: -

Declare that in relation to the year ended 30th June 1968 -
1. (a) The defendant was the owner of the land comprised in special

mineral lease no. 974 within the meaning of the Local Government Acts 1936-1967 (Q.)

(b) The said land was ratable land within the meaning of the said Acts.
(c) The ratable value of the ratable land aforesaid was deemed to be the

valuation ascertained by multiplying by twenty the annual rent payable under the lease at the time when the valuation was made.
(d) The defendant is liable to pay to the plaintiff the rate made and levied by the plaintiff in respect of the ratable land aforesaid.
2. (a) The lands comprised in application for mineral lease no. 1000 and in the applications for special mineral leases nos. 973, 975, 985, 986, 1001, 1024, 1025, 1026, 1028, and 1029 were not ratable lands within the meaning of the said Acts.
(b) The defendant is not liable to pay to the plaintiff the rate purported to be levied by the plaintiff in respect of the lands comprised within the said applications.

Question of costs of and incidental to the action reserved for further consideration by the Supreme Court.