O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356 (12 April 1990)

HIGH COURT OF AUSTRALIA

O'GRADY v. NORTHERN QUEENSLAND Co. LTD. [1990] HCA 16; (1990) 169 CLR 356
F.C. 90/015

Mining (Q.)

High Court of Australia
Brennan(1), Dawson(2), Toohey(3), Gaudron(3) and McHugh(4) JJ.

CATCHWORDS

Mining (Q.) - Wardens Court - Jurisdiction - Exclusive jurisdiction - Action arising in relation to mining - Matter arising between miners in relation to mining - Claim in Supreme Court that joint venture mining agreement rescinded - Counterclaim that agreement not validly rescinded and for appointment of members of joint venture committee - Whether counterclaim within jurisdiction of Supreme Court - Mining Act 1968-1983 (Q.), ss. 80, 80A.

HEARING

1989, November 14; 1990, April 12. 12:4:1990
APPEAL from the Supreme Court of Queensland.

DECISION

BRENNAN J. An agreement dated 25 October 1983 was made between the appellant (O'Grady), the respondent ("NQ Company") and one Brian Crowley, relating to mining lease No.457 in the District of Charters Towers. At the time of the agreement, O'Grady was entitled to an 85% interest in the lease, Crowley to a 5% interest, and one Stanley George James to a 10% interest. It was proposed that NQ Company acquire James's 10% interest and a further 60% interest from O'Grady, and that NQ Company, O'Grady and Crowley should constitute a joint venture for the exploration and mining of the lease. The agreement was subject, inter alia, to completion of contracts between James and NQ Company for the sale and purchase of James's 10% interest: cl.16. Clause 2 of the agreement contained the contract of sale of a 60% interest by O'Grady to NQ Company. Clause 3 provided for the constitution of the joint venture. It read as follows:
"3. The parties shall from the date that
NQ Company becomes the registered holder of
the share or interest in the mining lease
acquired by NQ Company from the first owner
(O'Grady) constitute a joint venture for the
purpose of conducting exploration and mining
operations on the mining lease the parties
having the following participating interests
therein:-
First owner (O'Grady) 25%
Second owner (Crowley) 5%
NQ Company 70%
3.1 As soon as practicable after NQ
Company becomes the registered holder of
the share or interest in the mining lease
acquired by NQ Company from the first
owner a joint venture committee shall be
established which shall supervise the
activities of NQ Company in the conduct of
exploration to be carried out by the NQ
Company and any mining operations that may
be established by NQ Company by and on
behalf of the parties on the mining lease
and shall do all such other acts matters and
things as are reasonably necessary for such
activities or incidental thereto; and
3.2 The joint venture committee shall
consist of four (4) members two of whom
shall be appointed by the owners and two by
NQ Company. Each party shall designate its
representatives by notice to the other and
each party by like notice may designate one
or more alternate representatives any one
of whom shall be authorised to represent
that party in the absence of any of its
representatives ..."
to prepare a budget and programme for exploration and submit it to the joint venture committee, but the committee could not withhold approval: cl.4.1.1. The parties were obliged to contribute to outgoings in proportion to their participating interests from "the date that the joint venture committee is established": cl.4.1.2. Clause 5.1 conferred on NQ Company the power to "direct, manage and supervise on behalf of the parties ... all work on the mining lease and for this purpose shall have full and exclusive possession and control of all property and assets of the mining lease." Clause 6.1 provided that the parties should own a share of ore concentrates and like products proportionate to the respective percentages of their participating interests.

2. The provisions of cl.16 were waived by O'Grady and the agreement for sale by him to NQ Company contained in cl.2 of the agreement was settled in late 1984 before the contracts for the sale of James's 10% interest to NQ Company were completed. (Those contracts were not completed until 1987.) Consequent on the settlement of the sale by O'Grady, NQ Company became the registered holder of a 60% interest in mining lease No.457 on 4 February 1985. It pursued the exploration and development of the mining lease and expended money thereon. It requested O'Grady and Crowley to appoint their respective representatives to the joint venture committee but O'Grady and Crowley neglected to make those appointments.

3. Proceedings were commenced by O'Grady against NQ Company in the Supreme Court of Queensland on 18 July 1985. By his amended statement of claim, O'Grady sought, inter alia, a declaration that the joint venture agreement between O'Grady, Crowley and NQ Company had been determined and an order, pursuant to s.38 of the Property Law Act 1974-1985 (Q.), appointing statutory trustees for sale of the mining lease. NQ Company defended the action and counterclaimed against O'Grady and Crowley for, inter alia, an order that they designate their representatives to the joint venture committee pursuant to cl.3.2 of the agreement.

4. Connolly J. found that, when the joint venture was to have commenced, the interests were not held by the proposed joint venturers in the proportions contemplated by the agreement and that the proposed joint venture had not come into existence. He appointed trustees for sale of the mining lease and he dismissed the counterclaim. NQ Company appealed to the Full Court. Their Honours were of the view that the joint venture came into existence upon NQ's becoming the registered holder of a 60% interest, that there was neither warrant nor jurisdiction to make an order appointing trustees for sale and that relief by way of an order to designate representatives to the joint venture committee should be made against O'Grady and Crowley on the counterclaim.

5. The question in this appeal is whether the Supreme Court was deprived of jurisdiction to grant that relief on the counterclaim by s.80(4) of the Mining Act 1968- 1983 (Q.) ("the Act"). Section 80 provides:

"(1) Subject to section 80A, a Wardens
Court shall have jurisdiction to hear and
determine all actions, suits and proceedings
arising in relation to mining or to any
mining tenement.
Without limiting the generality of the
foregoing jurisdiction of a Wardens Court
such a court shall have jurisdiction to hear
and determine actions, suits and proceedings
with respect to the following matters:-
(a) ...
(b) ...
(c) ...
(d) ...
(e) (Repealed);
(f) (Repealed);
(g) any matter arising between miners in
relation to mining on Crown land,
reserves, or private land or arising
between miners and the owners or
occupiers of Crown land, reserves,
or private land;
(h) (Repealed);
(i) ...
...
The jurisdiction of a Wardens Court
includes jurisdiction to take cognizance of
and determine with respect to all claims and
interests both legal and equitable and in
the exercise of its jurisdiction a Wardens
Court shall have power to grant equitable
remedies.
(2) The jurisdiction of a Wardens Court
with respect to any matter shall not be
ousted by reason only of the fact that such
matter pertains to claims or interests of
an equitable nature or involves the
determination of title to land.
(3) ...
(4) With respect to matters within
its jurisdiction, the jurisdiction of the
Wardens Court shall be exclusive:
Provided that the provisions of this
section shall not be construed to affect the
jurisdiction of any other court or tribunal
with respect to the recovery of wages under
The Wages Acts 1918 to 1954 or the recovery
of moneys due under awards under The
Industrial Conciliation and Arbitration Acts
1961 to 1964."

6. In the Full Court, s.80(4) was held to deny jurisdiction to the Supreme Court to entertain the claim for relief made by O'Grady's amended statement of claim but not to deny jurisdiction to make the order, sought by NQ Company's counterclaim, that O'Grady and Crowley designate their representatives to the joint venture committee. The reasons for this conclusion were stated by Demack J. with the concurrence of Andrews C.J. and McPherson J. Demack J. said:

"Clearly the critical words are 'arising
in relation to mining or to any mining
tenement'. ... As Isaacs J. observed in
Australian Commonwealth Shipping Board -v-
Federated Seamen's Union of Australasia
[1925] HCA 27; (1925) 36 CLR 442, at p 450,
'To say that it may arise is not
the same as saying that it does
arise, which is the meaning of
"arising".'
Having referred to a number of earlier
decisions under s. 40A of the Judiciary Act,
he said, at p 451,
'Those decisions then establish
that "arising" means necessary for
the decision on the ascertained or
asserted facts of the case.'
Here, where the section is ousting the
Supreme Court's jurisdiction in matters of
private rights, it is appropriate to use
this same definition. In other words, the
ascertained or asserted facts must
necessarily relate to mining or to a mining
tenement. Clearly enough in an action for
specific performance of a contract for the
sale of a mining lease, both the asserted
and the ascertained facts must necessarily
relate to a mining tenement. ...
... Without stating the issues in
detail, I am of the opinion that the facts
asserted in the statement of claim
necessarily related both to mining and to a
mining tenement. The alleged breaches
included reference to ground works and
testing on the mining site which seem
clearly enough to relate to mining. The
relief sought included both a reconveyance
of the mining lease and an order for the
appointment of statutory trustees of the
lease. In my opinion the statement of claim
could not be heard by the Supreme Court.
The counterclaim is a different matter.
The relief sought at the trial was
declarations that the purported rescissions
of the agreement were ineffective and an
order that O'Grady and Crowley perform the
joint venture agreement by designating their
representatives to the joint venture
committee. Both asserted and ascertained
facts related to matters that involved no
reference to mining or to mining tenements.
It was simply a claim about personal
obligations under a contract. Thus, in my
opinion, the counterclaim was within the
jurisdiction of the Court, and the orders
that follow from my reasons should be made."

7. It is surprising that O'Grady's claim should be held to be outside the jurisdiction of the Supreme Court and NQ Company's counterclaim should be held to be within that Court's jurisdiction when both claim and counterclaim depend on the operation of cl.3 of the agreement and on the finding whether the joint venture was constituted when NQ Company became the registered holder of a 60% interest in the mining lease. If, as the Full Court held, the joint venture was so constituted, it would not be right to appoint trustees for sale of the mining lease under s.38 of the Property Law Act. If, as Connolly J. held, the joint venture was not constituted and cannot now be constituted in accordance with cl.3 of the agreement, it would not be right to compel O'Grady and Crowley to designate their representatives to a joint venture committee. The question whether a joint venture has been constituted must be answered in order to determine whether the relief to be granted should be that sought by the claim or that sought by the counterclaim, for the relief sought by one party is the alternative to the relief sought by the other, and the choice between them depends on the answer to that question. If the issue whether a joint venture existed attracted the exclusive jurisdiction of the Wardens Court to determine the claim, it is difficult to see why the same issue did not attract the exclusive jurisdiction of that Court to determine the counterclaim.

8. Of course, statutes which confer exclusive jurisdiction on a court to determine matters involving specific issues inevitably create difficulties in the ascertainment of the extent of the jurisdiction reciprocally withdrawn from other courts. Those difficulties are enhanced when the exclusive jurisdiction is not precisely defined, as in s.80(1) of the Act. That sub-section is the last of a series of statutes conferring jurisdiction on special courts concerned with mining and its provisions are the product of its history. The formula for conferring jurisdiction adopted by The Gold Fields Act 1874 (Q.), s.31, was:

"jurisdiction to hear and determine all
actions suits claims demands disputes and
questions which may arise in relation to
mining."

This formula was adopted by s.28(2) of The Mineral Lands Act of 1882 (Q.). By s.103 of The Mining Act of 1898 (Q.), the Wardens Court was given

"jurisdiction to hear and determine all
actions, suits, claims, demands, disputes,
and questions which may arise in relation to
mining, or in any way relating to any mining
tenement ..."

The formula was altered in s.80(1) of the 1968 Act from "which may arise" to "arising". That alteration, as it seems to me, does not make the slightest difference to the scope of the jurisdiction conferred. History confirms what is manifest on the face of s.80(1), namely, that "arising" in this context, like the phrase "which may arise" in earlier statutes, qualifies the preceding words "actions, suits and proceedings". Jurisdiction to entertain "proceedings" (to use a convenient collective term) "which may arise" is no different from jurisdiction to entertain proceedings "arising", for jurisdiction can be exercised only in proceedings which do arise, that is, in proceedings which are commenced.

9. No analogy will necessarily be found in phrases plucked from other contexts merely because they contain the word "arising". In construing such a phrase, the problem is to identify what is qualified by "arising" and to ascertain, from the nature of that object, the manner of its "arising". Thus, the problem addressed by decisions under the now repealed s.40A of the Judiciary Act 1903 (Cth) was of a different kind, for that provision operated to deny jurisdiction to courts other than the High Court to determine inter se questions under the Constitution "(w)hen, in any cause pending ... there arises any question" of that kind. The problem under s.40A was to ascertain the time when such a question arose for determination in a pending cause: Reg. v. Green; Ex parte Cheung Cheuk To [1965] HCA 32; (1965) 113 CLR 506, at p 518. Once it became necessary to determine such a question, it arose for determination; until it became necessary to determine it, the question was merely one which might arise. It was sufficient that the question, though it had not arisen, was certain to arise for determination: in a similar context, see per Lindley L.J. in Weed v. Ward (1889) 40 ChD 555, at p 561. But one cannot apply principles found in cases bearing on the question: "has an inter se question arisen in a cause?" to cases in which the enquiry is: "has a proceeding arisen?" Whether an inter se question would arise in a particular cause might be doubtful, but there can be no doubt as to the commencement of a proceeding. The critical question in this case is not whether the proceeding on the counterclaim has arisen but whether the proceeding which has arisen is "in relation to" mining or mining tenements. If the case is approached through par.(g), the question is not whether a "matter" has arisen (for the proceeding establishes what the matter is and that it has arisen); the critical questions under par.(g) are whether the parties to the counterclaim are "miners" and whether the matter between them relates to mining.

10. The phrase "in relation to" imports a connexion between proceedings (in the first paragraph of s.80(1)) or "any matter arising between miners" (in par.(g)) on the one hand and "mining" on the other: see Perlman v. Perlman [1984] HCA 4; (1984) 155 CLR 474, at p 484. No doubt the connexion which the phrase imports is a question of degree. In Central Queensland Speleological Society Incorporated v. Central Queensland Cement Pty Ltd (No.1) (1989) 2 Qd R 512, at p 516, Thomas J. proposed this criterion of the requisite connexion: a proceeding "will need to arise directly in relation to mining as such." Derrington J. (at p 528) said "there must be a real and direct relationship between the subject matter of (the) action and mining or a mining tenement". And de Jersey J. (at p 533) held that the connexion between the proceedings in that case and mining, though clear, was not "sufficiently close ... to warrant the conclusion that the proceedings 'arise in relation to' mining." With respect, I am unable to accept these propositions. In the first place, the statutory definition of "mine" when used as a verb includes "to carry on any operation with a view to or for the purpose of winning mineral ...": s.7(1) of the Act. Therefore, mining, for the purposes of s.80(1), extends beyond what would ordinarily be understood by the phrase "mining as such". Next, directness is not a criterion which inheres in the language of s.80(1). I would agree that the relationship must be between the proceeding or matter and the activity of mining; not merely between the proceeding or matter and some other activity: see Reg. v. Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185, at pp 197-198. But the relationship between a proceeding (or a matter) and the operation of mining must, in one sense, always be indirect. The relationship of a proceeding with mining must consist in the affection of the rights and liabilities of those involved or seeking to be involved in the carrying on of operations which come within the definition of "mining" by reason of their involvement or sought involvement in those operations. And the relationship between a matter and mining must consist in a dispute about the rights and liabilities of those involved or seeking to be involved in the carrying on of operations which come within the definition of "mining" by reason of their involvement or sought involvement in those operations. If a cause of action has its origin in the carrying on of a mining activity (for example, a claim for damages for negligence in a mining activity causing personal injuries) or if the relief sought is intended or likely to affect the carrying on of a mining activity in a manner that is not remote and merely incidental, the proceeding can fairly be described as a proceeding "in relation to" mining. There may well be a sufficient connexion between proceedings or a matter on one hand and mining on the other, albeit the connexion is indirect, where there is a significant degree of connexion. Provided the connexion is not so exiguous as to be insignificant, or to be remote and merely incidental, the connexion is a "real" one, and jurisdiction to entertain the proceeding or to hear and determine the matter is vested exclusively in the Wardens Court. The phrase "in relation to" is wide in its connotation and cannot be limited by a priori formulae designed to exhaust its meaning.

11. Other cases decided on s.80(1) or its predecessors give little guidance in construing the words "proceedings arising in relation to mining or to any mining tenement" or "matter arising ... in relation to mining". In Elmslie v. Mackay (1890) Brisbane Courier Reports (Newspaper), an action for calls on shares in a mining company was held not to be an action in relation to mining; on the other hand, in George Comanos v. Fingold Resources (No.1) (1988) 2 Qd R 631 and in Graham v. Suimin Co. (Australia) Pty. Ltd. (1989) 1 Qd R.291, it was held that suits for specific performance of contracts for the sale of a mining lease or of an interest in a mining lease are proceedings in relation to a mining tenement. In my respectful opinion, these cases were rightly decided. But none of them applies precisely to the present case. Nor does the present case fall within the exceptions to the wardens' jurisdiction contained in s.80A. The question is simply the degree of connexion between the proceedings on the counterclaim or matter on the one hand and mining on the other.

12. Before examining the relationship between the proceedings on the counterclaim and "mining", reference should be made to the three paragraphs (e), (f) and (h) of s.80(1) which were repealed in 1974. "(I)t is permissible to have regard to a repealed portion of an Act for the purpose of construing what remains": per Gibbs J. in Mathieson v. Burton [1971] HCA 4; (1971) 124 CLR 1, at p 26 (see also per Windeyer J. at pp 14-15). However, consideration of s.80(1) as it stood before the 1974 repeal does not suggest that the lettered paragraphs of that sub-section expanded the jurisdiction which was otherwise conferred on Wardens Courts by that sub-section. Rather, the lettered paragraphs merely contained particular instances of the jurisdiction conferred by the first paragraph of that sub-section: see and cf. Leon Fink Holdings Pty. Ltd. v. Australian Film Commission (1979) 141 CLR 672, at pp 678-679; Cooma-Monaro Shire Council v. Mannering (1986) 7 NSWLR 258, at p 262. Like Connolly J. in George Comanos (at p 634) -

"I have ... considered the possibility
that in passing Act No.49 of 1974 the
Parliament regarded itself as depriving the
Wardens Court of some of its jurisdiction
under the Act as originally passed. I have,
however, been unable to come to any such
conclusion, if only because the more one
examines these provisions the more obscure
the purpose of their repeal becomes."

13. The lettered paragraphs which remain include par.(g) and, in my opinion, the counterclaim falls squarely within that paragraph. If it be the fact that the joint venture for the exploration and mining of mining lease No.457 has been constituted - a question which concededly attracts s.80(1) - and there is a dispute between the joint venturers about the obligation of two of them to designate their representatives to a committee to oversee the mining operation to be conducted by NQ Company on behalf of the joint venturers, that dispute is clearly a "matter" and, it seems to me, a "matter arising between miners in relation to mining on Crown land". The dispute relates not merely to the existence of a joint venture and the establishment of the committee to suggest changes to the mining operations proposed by NQ Company; the dispute also relates, by force of cl.4.1.2, to the financial obligation of the "miners" to contribute to the cost of "mining". The connexion between the matter raised by the counterclaim and mining on mining lease No.457 is proximate and substantial. For the same reasons, the counterclaim fits easily within the general words of the first paragraph of s.80(1) as a proceeding "in relation to mining".

14. It follows that the appeal must be allowed. There should be no order as to costs either in this Court or in the Courts below. The judgment of the Full Court of the Supreme Court of Queensland should be varied by setting aside the order made in relation to the counterclaim, the several orders for costs and the order for the payment out of moneys paid into court, and in lieu thereof it should be ordered that the counterclaim be dismissed for want of jurisdiction and that the moneys paid into Court by the plaintiff be paid out to his solicitors.

DAWSON J. I agree with Toohey and Gaudron JJ. The crucial question is whether the proceedings constituted by the respondent's counterclaim were proceedings in relation to mining or to any mining tenement. The words "in relation to", read out of context, are wide enough to cover every conceivable connection. But those words should not be read out of context, which in this case is provided by the Mining Act 1968 (Q.). What is required is a relevant relationship, having regard to the scope of the Act. Where jurisdiction is dependent upon a relation with some matter or thing, something more than a coincidental or mere connection - something in the nature of a relevant relationship - is necessary: see Reg. v. Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185, at pp 196-197, 210.

2. True it is that here the definition of "mine" in s.7(1) of the Act, both as a noun and as a verb, is so wide as to offer little assistance, but the scope of the Act is otherwise sufficiently apparent. It is concerned with the regulation of mining and the right to mine in a practical and direct sense. It assumes a substratum of law which applies indifferently to matters whether connected or unconnected with mining. The law of contract is an example. A contract may deal with mining or a mining tenement, but proceedings arising out of the contract may raise only questions of personal obligations under a contract rather than questions related to mining or a mining tenement. That is to say, the proceedings may raise questions which are quite outside the area within which the Act purports to operate and which, for that reason, exhibit no relevant relationship with mining or a mining tenement. That was the case with these proceedings where the questions raised turned on facts which involved no reference to mining or to mining tenements. The questions which they raised were only coincidentally connected with mining or a mining tenement.

3. I would dismiss the appeal.

TOOHEY AND GAUDRON JJ. This appeal concerns those provisions of the Mining Act 1968 (Q.) ("the Act") which confer jurisdiction on a Wardens Court. In matters in which a Wardens Court has jurisdiction, that jurisdiction is exclusive. The parties to this appeal were parties to litigation in the Supreme Court of Queensland; the question is whether the Supreme Court had jurisdiction to determine the present respondent's counterclaim.

2. It is convenient to go first to the relevant provisions of the Act. Section 80 is the section which confers jurisdiction on a Wardens Court. So far as is relevant to the present dispute, it reads:

"(1) Subject to section 80A, a Wardens
Court shall have jurisdiction to hear and
determine all actions, suits and proceedings
arising in relation to mining or to any
mining tenement.
Without limiting the generality of the
foregoing jurisdiction of a Wardens Court
such a court shall have jurisdiction to hear
and determine actions, suits and proceedings
with respect to the following matters:-
(a) the right to possession of or
other interest or share in and
the ownership of mining tenements
and the products of mining;
(b) the area, dimensions and boundaries
of mining tenements;
(c) any encroachment or trespass upon or
interference with or injury to any
mining tenement or the buildings,
plant, machinery or equipment
thereon;
(d) any demand for debt or damages
arising out of or made in respect
of-
(i) the carrying on of mining or
prospecting; or
(ii) any agreement relating to
mining or prospecting;
(e) (Repealed);
(f) (Repealed);
(g) any matter arising between miners in
relation to mining on Crown land,
reserves, or private land or arising
between miners and the owners or
occupiers of Crown land, reserves,
or private land;
(h) (Repealed);
(i) any application required by this Act
or any other Act relating to mining
to be made to or heard in the
Wardens Court.
In this subsection the term 'mining
tenement', in addition to the meaning
assigned to it by section 7 of this Act,
includes land the subject of an authority to
prospect granted under this Act or any other
Act relating to mining, and land otherwise
held under this Act or any other Act
relating to mining.
The jurisdiction of a Wardens Court
includes jurisdiction to take cognizance of
and determine with respect to all claims and
interests both legal and equitable and in
the exercise of its jurisdiction a Wardens
Court shall have power to grant equitable
remedies.
(2) The jurisdiction of a Wardens Court
with respect to any matter shall not be
ousted by reason only of the fact that such
matter pertains to claims or interests
of an equitable nature or involves the
determination of title to land.
(3) In relation to any matter within its
jurisdiction or in relation to any matter
which a Wardens Court considers necessary
to determine to found its jurisdiction a
Wardens Court may grant such remedy and
relief as it thinks just and as is in
accordance with law, including equitable
remedy and relief. ...
(4) With respect to matters within its
jurisdiction, the jurisdiction of the
Wardens Court shall be exclusive:
..."

3. Jurisdiction is conferred on the Supreme Court by s.80A, sub-s.(1) of which reads:

"The Supreme Court has jurisdiction
to hear and determine any proceeding
challenging or otherwise relating to the
validity of -
(a) a mining claim registered or
purportedly registered;
(b) a mining lease granted or
purportedly granted;
(c) an authority to prospect issued or
purportedly issued;
(d) any other Crown grant made or
purportedly made,
whether before or after the commencement of
the Mining Act and Other Acts Amendment Act
1982, pursuant to this Act or any other Act
relating to mining and, notwithstanding any
other Act or law, any such proceeding shall
be heard and determined in that Court only."

4. At all relevant times until 25 October 1983, the appellant was, or was entitled to be, registered as holder of an 85 per cent share or interest in Mining Lease No.457 in the Charters Towers District, known as The Mother Lode. At all such relevant times Brian Crowley held a 5 per cent interest in the lease and Stanley George James held a 10 per cent interest.

5. On 25 October 1983 the appellant, Crowley and the respondent entered into a written agreement ("the agreement"). The appellant agreed to sell to the respondent a 60 per cent interest in the lease for the sum of $255,000 and an allotment to the appellant of fully paid shares in the respondent to the value of $50,000 at the price at which the shares were underwritten prior to their admission to the official list of a member exchange of the Australian Associated Stock Exchanges. James was not a party to the agreement but recital D noted that the respondent had agreed to acquire from James his 10 per cent share in the lease and cl.16 expressed the agreement to be subject inter alia to the completion of the contract for that purchase.

6. The appellant, Crowley and the respondent further agreed (as appears from recital E) "to associate themselves in a joint venture in accordance with the provisions of this agreement for the purpose of conducting exploration and mining operations on the mining lease". As might be expected, the agreement contains a number of machinery provisions relating to the joint venture. It provides for the constitution of a joint venture committee to supervise the activities of the respondent in its exploration and mining activities on the lease.

7. The trial judge, Connolly J., said that, while cl.16 presented "obvious difficulties", it was accepted that it should be read as operating as at the date of settlement of the agreement. That settlement did not take place until late 1984. Shortly thereafter the appellant purported to rescind the agreement on the ground that cl.16 had not been complied with. His Honour said that it could not seriously be contended that the appellant had not waived cl.16 of the agreement. He had already transferred his 60 per cent interest in the lease to the respondent and had received consideration in return. The respondent eventually acquired James' 10 per cent interest in 1987.

8. The appellant brought proceedings against the respondent in the Supreme Court of Queensland claiming various breaches of the agreement made 25 October 1983. The breaches alleged largely related to the failure of the respondent to acquire James' interest in the lease and its failure to carry out mining operations on the lease and otherwise put the agreement into effect.

9. In his prayer for relief the appellant claimed a declaration that the agreement of 25 October 1983 had been determined, further or alternatively that the appellant and Crowley had rescinded the agreement, and an order that the respondent retransfer to the appellant "its registered ownership" in the lease. Further relief was claimed in the following terms:

"(d) A declaration that the joint venture
agreement between the Plaintiff,
the Defendant and Crowley dated
25th October, 1983 has been determined.
(e) An order pursuant to Section 38 of the
Property Law Act 1974-1985 appointing
statutory trustees for sale of the
Mining Lease referred to in paragraph 2
hereof."

10. Connolly J. held that the joint venture had never been properly constituted (the reasons are not material to this appeal) and made a declaration to that effect. Consequentially, his Honour made an order pursuant to s.38 of the Property Law Act 1974 (Q.) that statutory trustees be appointed for the sale of the lease. His Honour also entered judgment for the appellant on the respondent's counterclaim.

11. The counterclaim had sought a declaration that the appellant's "purported rescission of the agreement" was invalid and that Crowley's "purported rescission of the agreement" (Crowley being a defendant to the counterclaim) was also invalid. The counterclaim had also sought an order that the appellant and Crowley "designate their representatives to the joint venture committee pursuant to clause 3.2 of the agreement". Counsel for the appellant observed that this was in effect a claim for specific performance because appointment of the committee was a prerequisite to the operation of the rest of the agreement.

12. The respondent appealed against the orders made by Connolly J. Argument before the Full Court of the Supreme Court of Queensland concluded on 17 November 1988 and the Court reserved its decision. At that stage no point had been taken as to the jurisdiction of the Supreme Court to entertain either the appellant's claim or the respondent's counterclaim.

13. As it happened, on the morning of 17 November a differently constituted Full Court of the Supreme Court of Queensland delivered judgment in Graham v. Suimin Co. (Australia) Pty Ltd, now reported in (1989) 1 Qd R 291. Demack J., a member of the Full Court in the present case, said of Graham:

"In that appeal the Court held that an action
for specific performance of a contract for
the sale of a mining lease lay within the
exclusive jurisdiction of the Mining
Warden."

The parties were given the opportunity to make written submissions on the question of jurisdiction. The upshot was that the Full Court held the statement of claim to be outside the jurisdiction of the Supreme Court but the counterclaim to be within that Court's jurisdiction. In consequence, the Full Court allowed the respondent's appeal, dismissed the appellant's claim and gave judgment for the respondent on the counterclaim.

14. As the matter was argued before us, the only question was whether the counterclaim was within the jurisdiction of the Supreme Court. This in turn depended upon an answer to the question whether the counterclaim was within the jurisdiction of a Wardens Court for, if it were, s.80(4) of the Act would make that jurisdiction exclusive. At the same time, s.80 is expressed to be subject to s.80A, so that if enquiry should show a matter to fall within s.80A, the jurisdiction of a Wardens Court is necessarily excluded even though the matter might otherwise fall within the language of s.80.

15. The legislative history does not throw a great deal of light on the proper construction of ss.80 and 80A. Section 80 was part of the Mining Act 1968 which repealed the Mining Acts 1898 to 1967 (Q.). Thomas J. commented in Central Queensland Speleological Society Incorporated v. Central Queensland Cement Pty Ltd (No.1) (1989) 2 Qd R 512, at p 515:

"The previous legislation provided for a
somewhat different division of jurisdiction
between various courts, and it lacked
an express declaration of exclusive
jurisdiction in the Wardens Court."

Section 80A was inserted by the Mining Act and Other Acts Amendment Act 1982 (Q.), at which time the words "Subject to section 80A" were introduced into s.80(1). Clearly the intention was to ensure that the jurisdiction of the Supreme Court was put beyond doubt in the circumstances specified in s.80A. At the same time, the jurisdiction of the Supreme Court in a matter not falling within s.80A is not ousted unless the matter falls within s.80. Perhaps all one can derive from the history of the legislation is the existence for many years of this dichotomy between a Wardens Court and other courts and the conclusion that the jurisdiction of the former has traditionally embraced areas of ordinary civil jurisdiction where mining is involved. Early instances of the relative jurisdictions of the courts may be found in South New Zealand Gold Mining Co. v. Bullen (1881) 1 QLJ 50 and Elmslie v. Mackay (Brisbane Courier (Newspaper), 5 March 1890).

16. Counsel for the appellant drew attention to the dictum of Viscount Simonds in Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government (1960) AC 260, at p 286, where his Lordship said:

"It is a principle not by any means to be
whittled down that the subject's recourse to
Her Majesty's courts for the determination
of his rights is not to be excluded except
by clear words."

The force of the observation is unquestioned but it does not aid the construction of the Act. By the Act the legislature has vested different jurisdictions in two of Her Majesty's courts; the question in the present case is - which court? And while there might ordinarily be a predisposition in favour of a superior court, s.80 does give to a Wardens Court, in respect of matters within its jurisdiction, exclusive jurisdiction and a wide range of powers, "legal and equitable". With reference to that equitable jurisdiction, Connolly J. said in George Comanos & Associates Pty Ltd v. Fingold Resources Pty Ltd (No.1) (1988) 2 Qd R 631, at p 634: "The equitable jurisdiction of such tribunals goes back to the Court of the Vice Warden of the Stannaries. ... It is, nonetheless, an anomalous situation." (As to mining companies in the stannaries and the jurisdiction of the Stannaries Court, see Halsbury's Laws of England, 4th ed. (1974), vol.7, pars 1773-1777.) Anomalous though the power of a Wardens Court to grant equitable relief may be, it is a power of long standing and one to be found in the mining legislation of other States. The question of construction must be approached by reference to the language of the Act rather than some predisposition in favour of the Supreme Court over a Wardens Court.

17. In the appellant's submission, the counterclaim was within the jurisdiction of a Wardens Court because it was an action, suit or proceeding (the opening language of s.80(1)):

(a) "arising in relation to mining" (also the opening
language of s.80(1)); or
(b) "arising in relation to ... (a) mining tenement"
(again the opening language of s.80(1)); or
(c) "with respect to ... (a) matter arising between
miners in relation to mining on Crown land" (the
opening language of s.80(1) read with par.(g)).

18. There is of course no argument that the counterclaim answers the description of an action, suit or proceeding. But is it an action, suit or proceeding arising in relation to mining or a mining tenement? If it is, it is unnecessary to proceed to the paragraphs of s.80(1). The word "arising" is commonly found in statutes; a glance at any legal dictionary will show that to be the case. Naturally, the word takes its meaning from the context in which it appears. Its significance in s.80(1), we think, is to point up the need for an issue to presently exist in relation to mining or a mining tenement in order to attract the jurisdiction of a Wardens Court. In Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia [1925] HCA 27; (1925) 36 CLR 442, the Deputy- President of the Commonwealth Court of Conciliation and Arbitration stated a case for the opinion of the High Court where a case could be stated "upon any question arising in the proceeding which in his opinion is a question of law". Isaacs J. said, at p 450:

"It is manifestly impossible for this Court
or any other Court to 'hear and determine' a
question so as to give it the character of a
conclusive judgment, unless that question
'arises' so as necessarily to enter into the
legal determination of the matter upon the
facts stated. Remote or merely possible
relation of the question of law to the facts
is not enough to make the question 'arise'
in a legal sense. To say that it may arise
is not the same as saying it does arise,
which is the meaning of 'arising'."

19. In accordance with the same reasoning, jurisdiction is not conferred on a Wardens Court by the opening words of s.80(1) unless there is a matter which in truth has arisen in relation to mining or a mining tenement and which does not present some merely remote or hypothetical question for the Court to determine. Although "in relation to" is an expression of broad import, in context with "arising" it presupposes a direct connexion between a presently existing action, suit or proceeding and mining or a mining tenement, not merely an incidental connexion.

20. In the Full Court Demack J. (with whom Andrews C.J. and McPherson J. concurred on the point) was of opinion that the facts asserted in the statement of claim "necessarily related both to mining and to a mining tenement". But, in his Honour's view, the counterclaim was "simply a claim about personal obligations under a contract" and the facts, both as asserted and as found, "involved no reference to mining or to mining tenements".

21. As already indicated, the relief sought by the respondent in its counterclaim was in part declaratory - in each of pars (a) and (b), that purported rescissions of the agreement of 25 October 1983 were of no effect. The respondent also sought an order aimed at constituting the joint venture committee in accordance with the agreement. The relief sought did not, in Demack J.'s words, necessarily relate to mining or to a mining tenement. The counterclaim is distinguishable from a claim for specific performance of a contract for the sale of a mining tenement or for an order for sale of such a tenement. Neither mining nor a mining tenement is directly the subject of the counterclaim. It may well be true, as counsel for the appellant contended, that the appointment of the joint committee is a prerequisite to the operation of the rest of the agreement and therefore a prerequisite to "a joint venture ... for the purpose of conducting exploration and mining operations on the mining lease" (recital E of the agreement). But an order that the parties "designate their representatives to the joint venture committee" is precisely that - a prerequisite to mining operations on the lease. Such an order would have only an incidental rather than a direct connexion with mining or a mining tenement.

22. But the appellant goes further. He places reliance on par.(g) of s.80(1). It will have been seen that pars (e), (f) and (h) were repealed. Repeal was effected by the Mining Act and Another Act Amendment Act 1974 (Q.). It is of some interest to see what those paragraphs provided:

"(e) any question relating to the formation
or dissolution of a partnership for the
purpose of mining or prospecting and
any other matter pertaining to such a
partnership and all questions touching
the partnership arising between the
members of such a partnership;
(f) any question concerning the working
or management of a mining tenement
including a demand in relation to
contribution to calls or in relation
to the expenses of working or mining a
mining tenement;
(h) any matter pertaining to a trust,
agreement, tort, or dispute of any kind
relating to mining tenements, mining or
prospecting or pertaining to the
execution or performance of such a
trust or agreement."

23. In Graham v. Suimin the Full Court, following the approach taken by Connolly J. in Comanos, held that a contract for the sale of a mining lease was a contract relating to a mining tenement and that an order on application for summary judgment requiring the appellant to perform the contract was within the generality of s.80(1). The Court further held that the repeal of pars (e), (f) and (h) "was a repeal of surplusage, leaving the section with its previous meaning": at p 293 per Kneipp J., with whom Thomas and Derrington JJ. agreed. With respect, the paragraphs of s.80(1) may not be surplusage for they put beyond doubt the jurisdiction of a Wardens Court in a particular situation where the general language of the sub-section may produce some uncertainty. With that in mind, it is appropriate to go to the particular paragraph on which the appellant relies.

24. In our view, par.(g) does not assist the appellant. The counterclaim does not involve "a matter arising between miners in relation to mining". Although the agreement in question concerned mining a mineral lease, it was the validity of purported rescissions of the agreement and the appointment of a joint venture committee that was directly at issue in the counterclaim. To adopt the language of Isaacs J. in Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia, quoted above, the most that can be said is that a matter in relation to mining "may arise" out of the determination of the counterclaim. The appellant cannot find jurisdiction in the words "with respect to", which preface par.(g), for those words can only operate if there is a presently existing matter in relation to mining.

25. The Full Court was right in its decision that the counterclaim was within its jurisdiction and the appeal should be dismissed. It is apparent that the bifurcation of jurisdiction arising from ss.80 and 80A is not an entirely satisfactory one and that it may lead to the Supreme Court having jurisdiction at the suit of one miner who is a party to a mining agreement but no jurisdiction at the suit of another party. That is something for the attention of the legislature. McHUGH J. I agree with the reasons for judgment of Brennan J.

26. The question for decision in the appeal is whether proceedings instituted to obtain the order, which the Supreme Court made on the counterclaim, are "proceedings arising in relation to mining or to any mining tenement" within the meaning of s.80(1) of the Mining Act 1968 (Q.). If they are, the Wardens Court, and not the Supreme Court, has jurisdiction in the proceedings.

27. The prepositional phrase "in relation to" is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.

28. In the present case, the words "in relation to" require a connection or association between the proceedings which have arisen and the activity of mining or the existence of a mining tenement. Since proceedings in the Wardens Court will necessarily involve some question concerning the rights and liabilities of the parties, s.80(1) requires a connection or association between the rights and liabilities in issue in the proceedings and the activity of mining or the existence of a mining tenement. There is nothing in the context of s.80(1) or in its legislative history which suggests that the words "in relation to" should be read narrowly. Indeed, the second paragraph of that sub-section states that, without limiting the generality of the foregoing grant of jurisdiction to the Wardens Court, that court has jurisdiction to hear and determine proceedings with respect to such matters as any right to share in the products of mining, any injury to the machinery or equipment on a mining tenement, and any demand for debt or damages arising out of or made in respect of the carrying on of mining or prospecting.

29. What connection or association will be sufficient to bring proceedings within s.80(1) must be a matter of judgment on the facts of each case. But, as long as the connection between the proceedings and the subject matter of mining or a mining tenement is not so remote as to be insignificant, then, subject to s.80A, the Wardens Court has exclusive jurisdiction over those proceedings.

30. In Central Queensland Speleological Society Incorporated v. Central Queensland Cement Pty Ltd (No.1) (1989) 2 Qd R 512, Thomas J. said (at p 516) that to come within s.80(1) a proceeding "will need to arise directly in relation to mining as such". Derrington J. said (at p 528) that there must be "a real and direct relationship" between the subject matter of the proceeding and the mining or a mining tenement. De Jersey J. assumed (at p 533) that the connection between the proceedings and the mining or mining tenement is not sufficient unless it is "sufficiently close" to warrant the conclusion that the proceedings arise in relation to mining. But I can see nothing in the context or history of the words "in relation to" in s.80(1) which justifies qualifying their meaning by terms such as "direct" or "sufficiently close". All that the sub-section requires is that there be a connection between the proceedings and the activity of mining or the existence of a mining tenement.

31. In some cases, the connection between the rights and liabilities of the parties and the mining or mining tenement may be quite close; in other cases, it may be neither close nor direct. The connection or association will usually be sufficient, however, if a proposed or actual operation of mining or the alleged or actual existence of a mining tenement is the matter which has brought about the need to define the rights and liabilities of the parties. The connection or association is even more likely to be sufficient when the precise identification of the parties' rights and liabilities in the proceedings requires a reference to a mining activity or tenement.

32. The order, which the Supreme Court made on the counterclaim, was that "Waller Standish O'Grady and Brian Crowley perform the Joint Venture Agreement by each designating within fourteen (14) days of this Judgment their representative to the Joint Venture Committee to be established pursuant to Clause 3.2 of the Agreement dated the 25th day of October, 1983". It was an order, therefore, for the specific performance of a fundamental term of an "agreement for the purpose of conducting exploration and mining operations" of a mining tenement (recital E). Moreover, the joint venture committee, whose membership is the subject of the order of the Supreme Court, is to be established to "supervise the activities of NQ Company in the conduct of exploration to be carried out by the NQ Company and any mining operations that may be established by NQ Company by and on behalf of the parties on the mining lease": cl.3.1.

33. If proceedings were instituted for the purpose of obtaining an order that a person perform an agreement to carry out mining operations, there could be little doubt that the proceedings were within the jurisdiction of the Wardens Court. The order sought and obtained in the present proceedings is of the same kind. The obligation to designate a representative to the "Joint Venture Committee to be established pursuant to Clause 3.2 of the Agreement" is an obligation to designate a representative to the joint venture committee identified by cl.3.1. That is, the committee which is to be established is a committee to supervise the activities of the NQ Company "in the conduct of exploration to be carried out by the NQ Company and any mining operations that may be established by NQ Company by and on behalf of the parties on the mining lease". Thus, when the order sought and obtained on the counterclaim is precisely identified, it is revealed as an order to designate a representative to a joint venture committee to supervise the exploration and mining of a particular mining lease. The connection or association between the proceedings in the present case and mining or a mining tenement, therefore, was not insignificant. To the contrary, it was substantial. Only the Wardens Court had jurisdiction to deal with the proceedings involved in the counterclaim.

34. The appeal should be allowed.

ORDER

Appeal dismissed with costs.