Kayuga Coal P/L v Ducey and 3 Ors [1999] NSWSC 789 (4 August 1999)

Last Updated: 5 August 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Kayuga Coal P/L v Ducey & 3 Ors [1999] NSWSC 789

CURRENT JURISDICTION: Administrative Law

FILE NUMBER(S): 30097/98

HEARING DATE{S): 11 May 1999

JUDGMENT DATE: 04/08/1999

PARTIES:

Kayuga Coal Pty Limited

(Plaintiff)

John Earl and Maysie Sarah Ducey

(First Defendants)

Gavin Michael and Adrianne May Casey

(Second Defendants)

Chief Mining Warden

(Third Defendant)

JUDGMENT OF: Master Harrison

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr J D Heydon QC with

Mr M J Leeming

(Plaintiff)

Mr J E Robson

(First and Second Defendants)

SOLICITORS:

Fitzgerald White Talbot

Muswellbrook

(Plaintiff)

Hallett & Associates

Muswellbrook

(Defendants)

Crown Solicitor

(Third Defendant)

CATCHWORDS:

Judicial Review - decision of Chief Mining Warden - interpretation of s 62(1)(c) Mining Act 1992

ACTS CITED:

Supreme Court Act

Mining Act 1992 (NSW)

Crime Commission Act 1954

DECISION:

See para 27

JUDGMENT:

17

THE SUPREME COURT

OF NEW SOUTH WALES

ADMINISTRATIVE LAW DIVISION

MASTER HARRISON

WEDNESDAY, 4 AUGUST 1999

30097/98 - KAYUGA COAL PTY LIMITED v

JOHN EARL DUCEY & 3 ORS

JUDGMENT (Judicial Review decision of

Chief Mining Warden - interpretation of

s 62(1)(c) Mining Act 1992)

1 MASTER: By points of claim filed 10 November 1998 the plaintiff seeks to quash a decision of the chief mining warden made on 18 August 1998. The plaintiff relied on the affidavit of Felicity Lisa Gowing sworn 28 September 1998. The plaintiff is a coal mining company who applied for a mining lease (MLA 96). The lease extended over land owned by the first and second defendants. The first defendants are John Earl Ducey and Maysie Sarah Ducey (the Duceys). The second defendants are Gavin Michael Casey and Adrianne May Casey (the Caseys) and the third defendant is John Bailey, the Chief Mining Warden. The third defendant has filed a submitting appearance.

2 In seeking a judicial review, the plaintiff relied on s 69(3) and (4) of the Supreme Court Act 1970. Section 69(3) declares that the jurisdiction of court to grant relief or remedy in the nature of a writ of certiorari includes the jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination had been made on the basis of an error of law that appears on the face of the records of proceedings. Section 69(4) provides that for the purposes of subsection (3), the fact of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

3 The plaintiff seeks judicial review of the findings that the fences, dam and contour bank are improvements which fall within the meaning of s 62(1) on the basis that those findings are tainted by errors of law on the face of the record. It is not sought to review the warden's findings in relation to the powerlines.

4 The defendants seek to uphold the decision of the chief mining warden. They contend that there was no justifiable error and alternatively the plaintiff does not have standing to bring this action. It is convenient to deal with the defendants' second submission concerning standing here. It is my view that s 69(3) and (4) of the Supreme Court Act 1970 (as amended) (the Act) gives the court power to quash the decision of the chief mining warden if it is satisfied that he made an error of law which appears on the face of the record of the proceedings as defined in s 69(4) of the Act.

5 It is common ground that the mining warden was exercising an administrative function of inquiring into and reporting on the nature of the improvements.

6 The facts are not in dispute. They are as follows:

(1) On 7 October 1997 the plaintiff lodged an application for surface mining lease (MLA 96) over the first and second defendants' land. The first and second defendants are the owners of agricultural land in the Hunter Valley.

(2) On 11 November 1997 the first and second defendants objected to the grant of a lease on the grounds that the land comprised valuable works and structures and other improvements pursuant to Schedule 1 cl 23A of the Mining Act 1992 (NSW) (the Act). The Duceys claimed that their particular improvements were a dam, a contour bank and fences. The Caseys claimed their particular improvements were fences and power lines.

(3) On 15 December 1997 the plaintiff objected to the first and second defendants' claims.

(4) On 21 and 22 July 1998 the chief mining warden, the third defendant, held an inquiry.

(5) On 18 August 1998 the third defendant announced in open court his findings pursuant to Schedule 1 cl 23B(2) of the Act. On the same day he sent the report to the Minister. He found that the fences, dam and contour bank on the property of the Duceys and the fences on the property of the Caseys were "improvements" within the meaning of s 62 of the Act.

7 I turn to consider the chief mining warden's decision in relation to s 62 of the Act. Section 62 of the Act relevantly provides as follows:

"(1) A mining lease may not be granted over any land:

(a) on which, or within the prescribed distance of which, is situated a dwelling-house that is the principal place of residence of the occupier of the land on which the dwelling-house is situated, or

(b) on which, or within the prescribed distance of which, is situated any garden, or

(c) on which is situated any improvement (being a substantial building, dam, reservoir, contour bank, graded bank, levee, water disposal area, soil conservation work or other valuable work or structure) other than an improvement constructed or used for mining purposes and for no other purposes,

except with the written consent of the occupier (and, in the case of private land, the owner) of the land on which the dwelling-house, garden or improvement is situated.

...

(6) Any dispute as to whether or not subsection (1) applies in any particular case is to be referred to a warden for inquiry and report and is to be decided by the Minister on the basis of the warden's report.

...

(8) In this section, valuable work or structure includes anything taken to be a valuable work or structure for the purposes of this section by clause 23A of Schedule 1, but does not include anything declared not to be a valuable work or structure by clause 23B of that Schedule."

8 Clause 23A(6) of Schedule 1 of the Act provides that where a claim has been made by an owner or occupier to which objection has not been taken, the things identified in the claim are deemed to be a valuable work or structure for the purposes of s 62(1). Clause 23B(1) provides that if objection is taken to a claim by the applicant for the mining lease, the Director-General must refer the objection to a mining warden for inquiry and report, and anything which is found by the warden not to be a valuable work or structure is taken not to be a valuable work or structure for the purposes of s 62(1) clause 23B(3). Where s 62(1) of the Act applies, a lease may not be granted unless the owners of the land consent in writing.

9 The critical passages in the warden's reasoning are as follows:

"In going through various decisions that I researched as to interpretation, certainly I came to a conclusion that I could not accept, particularly in relation to the phrase "or valuable work or structure", that it created a disjunctive phrase there and that it should be isolated from those other specific words which preceded it. So in relation to the question of whether it be a substantial dam of (sic) a substantial contour bank, I reached a conclusion that the word "substantial" does not apply to other words following building, so it did not apply to a dam or a contour bank. It was my opinion that if a dam or contour bank is of such standing that they fulfil the intention for which they were designed, that they are considered improvements under provisions of section 62, and I did find that the dam and contour bank was of such standing that it fulfilled the intention for which it was designed.

As to fencing per se, as to whether it is a valuable work or structure really depends upon the merits of each individual case. I concluded that so far as the fencing on the Ducey and Casey properties, I accepted that the presence of the fencing does increase the value of the land and the fencing does in fact perform the task for which it was constructed and that is the control of stock entering or leaving the land or paddocks which are incorporated within that fencing."

10 In the report to the Minister dated 18 August 1998 (Ex A) the chief mining warden provided more detailed and clear reasoning in relation to his interpretation of s 62(1)(c) of the Act. The reasons contained in this report are reasons expressed by the Mining Warden for his ultimate determination.

11 At pp 8-12 the chief mining warden stated:

"The mining company submitted that before the subject dam and contour bank can be considered to be an "improvement", it must be established that it is a "substantial dam" and a "substantial contour bank". Furthermore, that the phrase "valuable work or structure" must be construed ejusdem generis with the words immediately preceding that phrase in section 62.

The ejusdem generis rules is a rule of law which is utilised to assist in the interpretation of a Statute. The rule cited in 1864 in R v Cleworth (1864) 4B & s 927, where Cockburn CJ said:

`according to a well established rule in the construction of statutes, general terms following particular ones apply only to such persons or things as are ejusdem generis with those comprehended in the language of the Legislature'.

Unless there is a genus or class or category established, there is no room for any application of the ejusdem generis doctrine. (per Lord Evershed in Ridge v Baldwin [1963] UKHL 2; (1964) AC 40).

By way of an example of the doctrine, in Re Latham (Dec)(1962)Ch616, Wilberforce J held that the words "or other person" had to be construed ejusdem generis with "trustee, guardian, committee" and this excluded persons beneficially interested. The words had to be limited to persons of a fiduciary capacity. His Lordship considered that if the words (or other person) were not limited, the specific reference to a trustee etc. would have been superfluous. In addition the specific references were not exhaustive of the persons who might be regarded as being in a fiduciary capacity, hence the reference to other persons was necessary.

Courts, over the years, have been reluctant to readily use the ejusdem generis rule because it necessitates a limitation being imposed upon words that are otherwise of general application.

Concerning s 62 of the Mining Act 1992, the words "dam, reservoir, contour bank, graded bank, levy, water disposal area, soil conservation work," all have a genus of having soil or land constructed in a manner to control or store water. If no other words were preceding "or other valuable work or structure", it might very well be that those latter words may be construed ejusdem generis with the previous words. However, at the commencement of these specific words referred to earlier, s 62(1)(c) has the term "substantial building". It is clear that phrase has no reference to a body of soil which could be used to control or store water. Consequently, it appears that when Parliament passed Section 62(1)(c) it was not restricting improvements to those matters only involving a soil body utilised to control water. In other words there is no genus in all of those specific words which precede "or other valuable work or structure". It is my opinion that the ejusdem generis rule does not apply in this instance.

Consequently, fences and power lines may not be excluded as an "improvement" on the basis of the ejusdem general doctrine.

The solicitor, for the mining company, Mr J Connors, further submitted that the word "substantial" which appears before the word "building", must also refer to the word "dam" and the words "contour bank". In other words, an improvement under s 62(1)(c) must be, inter alia, a "substantial dam" or a "substantial contour bank". Furthermore, he submits, the inclusion of the phrase, "or other valuable work or structure" also means that a "substantial dam" must be valuable and a "substantial contour bank" must be valuable.

Concerning that submission if Parliament had used the word "and" in lieu of "or", it would be clear that there was a conjunctive intent in the subsection. However, the use of "or" clearly indicates Parliament intended the word "or" to create a disjunctive phrase. Consequently, I cannot accept that "valuable" refers to those specific words preceding the phrase "or valuable work or structure".

As to whether "substantial" is also to apply to "dam", "reservoir", "contour bank", etc., one must look at the intention of Parliament in enacting the particular Act and Section. In interpreting legislation one must take into account also the consequences of giving a particular meaning to an Act. In Bistricic v Rakov [1976] HCA 54; (1976) 11 ALR 129 at 136, Jacobs J stated:

`The judicial process of discovering the intention of the legislature where there is a doubt involves an inference of intention depending on the language of the legislation in the light of the circumstances of its enactment, and, if no particular intention is disclosed by that process, on the convenience which would result on the one hand and the complexities which would result on the other hand if it were held that the legislation intended the amendment either to apply or not to apply.

If the language of an enactment is susceptible to two constructions, regard must be had to the general object and purpose of the Act, and, if the Act is done within the general purview of the statute regard may be had to the consequences of either construction. If one construction will do manifest injustice and the other avoid it, the latter construction should be adopted.'

Punctuation is another matter which may be considered when interpreting a section; although the High Court has indicated some caution should be exercised if using punctuation for interpretation. In President etc of Carlton Shire v Ruse [1912] HCA 33; (1912) 14 CLR 220, Griffith CJ said at p 225:

`...stops which may be due to a printer's or proof reader's error, ought not to control the sense if the meaning is otherwise tolerably clear.'

Isaacs J at p 229 said:

`But although I am not prepared to discard wholly the punctation of an Act, it would be unsafe to allow it to govern the construction.'

It is of interest to note that Dixon J, in British Medical Assoc v Commonwealth [1949] HCA 44; (1949) 79 CLR 201, relied upon punctuation to enable him to reach his dissenting views.

The punctuation of the subsection does not support the submission that an improvement is a "substantial dam" or "substantial contour bank". Furthermore, from the many cases involving a judicial interpretation of the word "substantial", it is clear that the meaning of the word is not definite and "it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case" the meaning of the word (as per Viscount Simon in Palser v Grinling [1948] AC 291). Therefore, it would appear that the intention of Parliament was not to have "substantial" attached to each of those words following "building", for to do so , would mean in almost every case where one of those "items" is on a property the subject to a mining lease application, it would require an Inquiry to determine whether the "item" was substantial.

It is my conclusion it was Parliament's intention to utilise the word "substantial" to apply to a building and to none of the other "items" listed in the sub-section. Further, it was the intention of Parliament to have the adjective "valuable" applicable to the words "work" and "structure" and to no other words in the sub-section. It follows therefore, that, in the context of this Inquiry, the sub-section refers to any dam, or counter bank, or graded bank, or valuable work or valuable structure.

According to the Shorter Oxford Dictionary, a "dam" is a "bank or barrier or earth ... to confine water". The dam on the Ducey property does confine water, it matter not if the water is from the run-off after rain or whether it is pumped there from another area.

From the evidence before the Inquiry and from my observations during the view of the property, I accept that on the Ducey's property is a dam and a contour bank, or, if Dr Jones opinion is accepted, a graded bank, and those items are of such standing that they fulfil the intention for which they were designed and as such are considered to be "improvements" under the provisions of s 62 of the Mining Act 1992.

..."

12 The alleged errors are firstly, that the third defendant erred in law in holding that the word "substantial" when appearing in s 62(1)(c) of the Act did not qualify the words following the words "building" in that paragraph; secondly, the third defendant erred in law in holding that it was sufficient for something to be an improvement within the meaning of s 62(1)(c) of the Act if it fulfilled the purpose for which it was designed; thirdly, the third defendant erred in law in holding that the words "valuable work or structure" should not be construed ejusdem generis with the immediately preceding words in s 62(1)(c) of the Act and fourthly, the third defendant erred in law in holding that it was sufficient for something to be a valuable work or structure within the meaning of s 62(1)(c) of the Act if it performed the task for which it was constructed and increased the value of the land.

13 It is common ground that there is no reference to s 62 in the explanatory memorandum or the second reading speech relating to the introduction of the Mining Act 1992.

14 I turn to the plaintiff's first submission that contrary to the construction applied by the warden upon its proper construction the word "substantial" in s 62 (1)(c) of the Act applies not only to "building" but also to the other enumerated improvements listed. According to the plaintiff, a matter of ordinary English usage, where an adjective precedes a list of nouns all of the same class, the adjective applies to all of the nouns, and not just the first.

15 The plaintiff submitted that would be a strange construction that, in order for a building to constitute an improvement within the meaning of s 62(1)(c), it must be substantial, while other improvements (which might in many or most cases be less permanent and less valuable) are not subject to the same requirement. In other words, it would be strange that an insubstantial building would not fall within the section, but any graded bank or levee, substantial or insubstantial, would fall within the section.

16 Also according to the plaintiff, although the warden appears to have had some regard to the punctuation in arriving at the opposite construction (report p 11), in truth the punctuation adopted in the statute is precisely the punctuation which would properly have been used to produce the construction contended for by Kayuga. If the construction adopted by the warden had been intended by the legislature, the words "being a substantial building, or dam, reservoir, contour bank, etc" would have been used. It is my view that the punctuation although it may be used with caution when interpreting legislation does not assist in the plaintiff's interpretation of s 62(1)(c). Punctuation was not a matter which formed the basis of the chief mining warden's interpretation of s 62(1)(c).

17 Also according to the plaintiff the Act imposes upon applicants for mining leases the obligation to obtain the written consent of occupiers or owners of land if they have a dwelling house or a garden on or close to the land, or if they have made certain improvements to the land. Given that the presence of an "improvement" within the meaning of s 62(1)(c) gives to the owner or occupier what amounts to a veto to any mining lease application, it is natural to suppose that the intention of the Act is that any improvements sufficient to enliven that veto were to be substantial. The plaintiff contended this construction is also supported by the words "or other valuable work or structure". Those words suggest that the legislature was contemplating that the enumerated improvements were themselves valuable, which is consistent with their being substantial.

18 The defendant submitted that the construction adopted by the warden (irrespective of the fact that he constitutes a specialist tribunal) is without fault. The suggested construction(s) of the plaintiff give an altogether different meaning and not one which is abundantly apparent without recourse to the matters set out in the plaintiff's submission. A proper and literal reading of the section does not require the contortions suggested.

19 According to the defendants section 62(1)(c) of the Act does not require that the word "substantial" qualify the words after "building". That does not mean that the warden's finding was that the dam, contour bank and the like were insubstantial. According to the defendant it is not to the point to suggest that his decision was that such structures (because they were not qualified by "substantial") did not have to be relevant and important. According to the defendant, if the Parliament intended each to be substantial it would have included the relevant word so that the construction propounded by the plaintiff properly arose.

20 The plaintiff referred to Ganin v NSW Crime Commission (1993) 32 NSWLR 423. In s 25 of the New South Wales Crime Commission Act 1954 contained the words "any other offence that involves substantial planning and organisation". These words were interpreted to mean "considerable planning" and "considerable organisation" and according to the Court of Appeal in the context of s 25, substantial meant considerable and not simply the negative of insubstantial (at 443B-C per Kirby P, Meagher JA and O'Keefe JA agreeing). Kirby P (as he then was) also referred to the statement of Deane J in Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employees Union (1979) 42 FLR 333 at 348; [1978] FCA 45; 27 ALR 367 at 382 where Deane J stated the word "substantial" is not only susceptible of ambiguity, but as "calculated to conceal a lack of precision". It is my view that the word "substantial" was intended to apply only to the word building and not to the subsequent items such as a dam, reservoir, contour bank etc. A building has different characteristics to that of a dam, reservoir etc. It is of a different genus. The latter are man made structures that assist the property owner make use of the natural resources. I agree with the chief mining warden's conclusion that the work "substantial" does not apply to other words following building. The chief mining warden did not make a finding, nor should he have that the dam , contour bank and fences were insubstantial.

21 It is my view that the words "or other valuable work or structure" are included to give the chief mining warden a wider discretion to include other items which are not specifically listed in s 62(1)(c). I also agree with the chief mining warden that Parliament used the word "or" to create a disjunctive phrase so the word "valuable" does not refer to the preceding phrase.

22 In relation to the plaintiff's second submission that fences are not improvements for the purposes of s62 (1)(1) it submitted that on its true construction, the fences which were said by the Duceys and Caseys, and held by the warden, to be improvements within the meaning of s 62(1)(c) do not fall within the paragraph. The plaintiff accepted that in its ordinary meaning, a fence is an "improvement" upon land. However it is submitted, in the context of s 61(1), the meaning of the word "improvement" is confined by the scope of the parenthesised words which follow. Only such improvements as are properly described by the parenthesised words are improvements for the purposes of s 2(1). According to the plaintiff the parenthesised words must constitute an exhaustive, rather than an inclusive definition, for any other construction would do violence to the word "being". According to the plaintiff, it follows that the only way in which s 62(1)(c) can apply to fences is if a fence is comprehended within the words "other valuable work or structure".

23 According to the plaintiff on their true construction the words "other valuable work or structure" must be considered ejusdem generis as the preceding words. The enumerated list of words identifies two classes of things (a) buildings, and (b) soil works designed to conserve water. If the warden was correct in concluding that "substantial" governs only the words "building" and not the later integers, then that points to the words "substantial building" being excluded from the relevant class. As the warden held, the following words "all have a genus of having soil or land constructed in a manner to control or store water" ( report p 9). Thus, if the warden is correct as to "substantial" applying only to the word "building", the following words properly constitute a genus to which the words "or other valuable work or structure" must be read ejusden generis. According to the plaintiff were the above construction not upheld, it would follow that the owner or occupier of any land on which there is a fence would have the right to veto a mining application.

24 The defendant submitted that the warden found (on the evidence and inspection) that the fences, dam and contour bank were important structures (in their context). He did this upon specific enquiry and found that they were valuable in the sense of the historical use of the land.

25 The meaning of s62(1)(c) is that a mining lease may not be granted over any land where there is principal place of residence of the occupier or a garden or according to subsection (c) where there is situated any improvement. Some of the improvements are defined as being a substantial building, dam or other valuable work or structure. The meaning of those words are clear and unambiguous. There is a discretion given in s 62(1)(c) to decide if there are other items on the land which are defined as something other than a dam or levee or graded bank but that other item must be a "valuable work or structure". As the chief mining warden stated the words "substantial building" have no reference to a body of soil which could be needed to control or store water and there is no genus in all of the specific words which precede "or other valuable work or structure". It is also my view that the ejusdem generis rule should not be applied. The chief mining warden had a discretion to decide whether the fences constituted a valuable structure. He found that the presence of the fencing on the Ducey and Casey properties increased the value of the land and the control of stock entering or leaving land or paddocks which are incorporated within that fencing. For reasons given earlier the fencing does not have to be substantial The chief mining warden was entitled to come to that conclusion and it should not be disturbed. Likewise the chief mining warden also decided that the dam was on the Duceys' property did confine water and there was a contour bank and those items were of such standing that they fulfilled the intention for which they were designed and were considered "improvements" under s 62(1)(c) of the Act. There is no error of law in the approach of the chief mining warden.

26 It is my view that the plaintiff has not demonstrated that the chief mining warden made an error of law and accordingly his decision should not be disturbed. The points of claim should be dismissed with costs.

27 The orders I make are:

(1) The points of claim filed 11 November 1998 is dismissed.

(2) The plaintiff is to pay the defendants' costs.

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LAST UPDATED: 04/08/1999