COMMISSIONER OF STATE REVENUE (WA) V OZ MINERALS LTD & ANOR

Members: Buss JA
Newnes JA

Murphy JA

Tribunal:
Supreme Court of Western Australia, Court of Appeal

MEDIA NEUTRAL CITATION: [2013] WASCA 239

Decision date: 17 October 2013

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Murphy JA : I have had the advantage of reading in draft the reasons of Buss JA. I respectfully adopt his Honours outline of the relevant factual and statutory background, grounds of appeal and the issues in the appeal. I also adopt his Honour ' s abbreviations. Subject to the matters discussed below, I generally agree with his Honour for the reasons he gives in relation to issues 2, 3 and 4. I too would allow the appeal.

273. At [ 106 ] of Buss JA ' s reasons, his Honour noted that issue 1 raises two questions. The first is the proper construction of the expression ' tenement, right or interest ' within the chapeau of par (c) of the definition of ' mining tenement ' in s 76(1) of pt IIIBA of the Stamp Act 1921 (WA) (the Act). The second question is whether PTAR ' s rights or interests under the Martabe Contract of Work fall within the expression ' tenement, right or interest ' within the chapeau of par (c).

274. As to the first question, the term ' mining tenement ' is defined in s 76(1) of the Act as follows:

mining tenement means -

• (a) a mining tenement held under the Mining Act 1978 being a mining tenement within the meaning of that Act or the Mining Act 1904 ;
• (b) a mining tenement or right of occupancy continued in force by section 5 of the Mining Act 1978 ; and
• (c) a tenement, right or interest that is -
  • (i) similar to a tenement or right referred to in paragraph (a) or (b); and
  • (ii) held under the law of another State, a Territory, the Commonwealth or another jurisdiction.

275. In relation to par (b) of the above definition, s 5 of the Mining Act 1978 (WA) in effect preserved relevantly a right of occupancy granted pursuant to an agreement to which the State is a party and under which a party to the agreement is authorised or required to carry out any mining operations and/or pursuant to s 276 of the Mining Act 1904 (WA) (1904 Act). Such an agreement, even where ratified by statute (often called a State Agreement) operates with force and effect as a contract and its provisions do not have the force of law or create statutory duties and obligations: Re Michael;
Ex parte WMC Resources Ltd [ 2003 ] WASCA 288 ; (2003) 27 WAR 574 [ 26 ] . Under s 276 of the 1904 Act, Crown land (as defined in s 3 of that Act) could be temporarily reserved from occupation and the Minister could ' authorise any person to temporarily occupy any such reserve on such terms as he may think fit ' .

276. Under the general law the technical meaning of ' tenement ' is everything in which a person can have an estate of freehold and which is connected with land:
Re Lehrer [ 1961 ] SR (NSW) 365 , 370;
Earl of Beauchamp v Winn (1873) LR 6 HL 223 , 241 - 242. Freehold estates comprised estates in fee simple, estates in fee tail and life estates. The former two were ' fee ' estates, the word ' fee ' signifying an estate of inheritance: Sweet C, Challis ' s Law of Real Property (3rd ed, 1911) 218; Butt P, Land Law (6 th ed, 2010) [ 604 ] .

277. Tenements were not confined to corporeal property and included certain incorporeal interests. In the case of
Earl of Beauchamp v Winn , there was a grant from the Duchy of Cornwall, dated 27 March 1799, in respect of, inter alia, a ' warren of conies ' (conies being a European rabbit valuable at the time for its pelt). The land had originally been used as a rabbit warren, but was subsequently found to have valuable minerals located beneath its surface. In a dispute between a successor in title of the grant and a third party, the question was whether the grant of 27 March 1799 was, on its proper construction, for a grant of the land, including the soil and minerals underneath the soil, or in effect ' a franchise ' , ie a right of breeding and killing rabbits within the limits of the warren (236). One of the arguments raised in support of the former construction was to the effect that the grant was pursuant to a statute which empowered, inter alia, the sale of ' messuages, lands, tenements ' and that those words, in effect, conveyed the notion of corporeal interests. Lord Chelmsford said (241 - 242):

It was argued that the word ' tenements ' has here a restricted meaning, and that it must be construed in its popular sense of a building. But if that is so, it is rendered entirely superfluous, because the word ' messuages ' is mentioned just before it in the section. It appears to have been the intention of the Act to enable the Duchy to dispose of every possession which was a source of revenue, and the clause itself (as well as others), speaks of ' manors, messuages, lands, tenements and other revenues ' . I have no doubt that the word ' tenements ' in the Act must be taken in its fullest sense, and as Blackstone says, ' though in its vulgar acceptation it is only applied to houses and other buildings, yet in its original, proper, and legal sense, it signifies everything that may be holden, provided it be of a permanent nature, whether it be of a substantial and sensible, or of an unsubstantial ideal kind ' . That a rabbit warren which passes no interest in the soil, but merely gives a right of entering within the limits of the warren to kill rabbits, is a tenement, was decided in the case of
Rex v The Inhabitants of Piddletrenthide … (emphasis added) (citations omitted)

278. As a general rule, tenements included hereditaments which savoured of reality: see Challis ' s Law of Real Property (3rd ed, 1911) 42 - 43, 45 - 46. Tenements were intailable under the statute De Donis Conditionalibus 1285.

279. The term ' hereditaments ' , generally speaking, has a wider meaning than ' tenements ' . It has been used to signify all property that historically devolved to heirs by hereditary succession (essentially via primogeniture) upon intestacy: Re Lehrer (370);
Lloyd v Jones (1848) 6 CB 81 ; 136 ER 1182 , 1185; Megarry R and Wade W, The Law of Real Property (8th ed, 2012) [ 1-013 ] ; Helmore B, The Law of Real Property in New South Wales (2nd ed, 1966) 494 - 495. However, not all tenements were hereditaments, eg a legal estate for life or pur autre vie . Also, personal hereditaments were not tenements and not intailable. For example, personal hereditaments included a personal annuity not issuing out of or secured on land: Challis ' s Law of Real Property 44, 46 - 47.

280. Under the general law, where mines and minerals became legally separated from the surface of the land - in whatever way the severance may have been effected - they became distinct property: Bainbridge on Mines and Minerals (5th ed, 1900) 39 - 40;
Wilkinson v Proud (1843) 11 M & W 33 ;
Berkheiser v Berkheiser [ 1957 ] SCR 387 , 395. A fee simple or a fee tail in a substratum of minerals, which was sometimes referred to as an ' unopened ' mine, was a corporeal hereditament and a ' tenement ' :
Dunn v Birmingham Canal Co (1872) LR 8 QB 42 , 48;
Errington v Metropolitan District Railway Co (1882) 19 Ch D 559 , 568 - 569;
Wilkinson v Proud ; MacSwinney on Mines (3rd ed, 1907) 42. The grant by the freeholder of land of a right to dig and carry away minerals from his or her land was regarded as an incorporeal hereditament in the nature of a profit à prendre and was a tenement:
London and North-Western Railway Co v Ackroyd (1862) 31 LJ Ch 588 , 591;
Wilkinson v Proud ; Land Law [ 16 135 ] ;
Ex parte Henry ;
Re Commissioner of Stamp Duties [ 1963 ] SR (NSW) 298 , 305; The Law of Real Property [ 27-055 ] . See also Bainbridge on Mines and Minerals 39 - 40, 164; Challis ' s Law of Real Property 54, 58.

281. In light of the foregoing, it would seem to me likely that the word ' tenement ' in the phrase ' tenement, right or interest ' in the chapeau in par (c) of the definition of ' mining tenement ' in s 76(1) of the Act, conveys the notion of any property capable of being held in freehold which is connected with land, including a tenure of a strata or seam of minerals, as well as any incorporeal hereditament involving the right to dig and carry away minerals.

282. For the purposes of the disposition of this appeal, it is unnecessary to determine whether the word ' right ' in the phrase ' tenement, right or interest ' in the chapeau of (c) of the definition of ' mining tenement ' is used in its wide sense as including any advantage or benefit which is in any manner conferred upon a person by a rule of law, or in its narrower, stricter meaning as the correlative of a legal duty - as to which see
Eaton & Sons Pty Ltd v The Council of the Shire of Warringah [ 1972 ] HCA 33 ; (1972) 129 CLR 270 , 293 and Salmond on Jurisprudence (12th ed, 1966) 217 - 233. Even in its stricter sense, it would include any claim inhering in one person as against another, which is recognised and protected by a rule of law. The word ' right ' , particularly in the context of a phrase which includes ' tenement ' and ' interest ' , suggests a generality of meaning, which is not confined to rights of a proprietary character, but would include contractual choses in action - the latter sometimes being described as ' quasi proprietary in nature ' : see
Zhu v Treasurer of New South Wales [ 2004 ] HCA 56 ; (2004) 218 CLR 530 [ 135 ] - [ 144 ] . The word ' interest ' , on the other hand, would ordinarily be apt to signify a right of a proprietary character. It is unnecessary to determine in this appeal whether ' interest ' also carries with it some other or further meaning.

283. It may be inferred that the legislature recognised (as in this jurisdiction) that generally speaking, minerals in foreign jurisdictions would likely be legally separated from the soil and belong to the State and not to individual landholders, and that any rights of mineral exploration or development would be held of or from the State in some manner conferred or granted by the State. The use of the word ' right ' in the phrase ' tenement, right or interest ' gives a substantial breadth to the scope and reach of the subject matter of the chapeau in par (c). It appears to be designed to accommodate, subject to the limitations in subpar (i), a variety of rights of mineral exploration or development held under the law of another Australian jurisdiction or under the law of a foreign jurisdiction.

284. In my opinion, the respondent ' s contention that the word ' right ' should, in effect, be read down as confined to rights which under the general law are conventionally regarded as being fully proprietary in character, should not be accepted. Nor is there any reason to suppose that the word ' right ' in this context is confined to statutory property as opposed to a chose in action created by contract.

285. Furthermore, the words of the chapeau in par (c) are not to be read in isolation from what follows. The subject matter of the chapeau must be of a character which allows a judgment to be made as to whether it is ' similar ' to a ' mining tenement ' as defined in par (a), or a ' mining tenement or right of occupancy continued in force by s 5 of the Mining Act 1978 ' . The fact that the subject matter in the chapeau in par (c) is designed to enable a comparison to be made as to whether it is ' similar ' to a ' mining tenement ' or a ' right of occupancy ' as defined, suggests that the legislature intended that a breadth and flexibility be given to the words ' tenement, right or interest ' in the chapeau in par (c). It is not insignificant that ' mining tenement ' as defined in par (a) of the definition has been characterised as in the nature of personal property, and not real property:
TEC Desert Pty Ltd v Commissioner of State Revenue [ 2010 ] HCA 49 ; (2010) 241 CLR 576 ;
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [ 2012 ] WASCA 216 [ 72 ] - [ 73 ] (with respect to exploration licences). Also, the term, as defined in par (b) of the definition, includes a right of occupation of a temporary reserve under a State Agreement which operates by force of contract. Further, the holder of a temporary reserve may not even have a right to work and get minerals from the reserve:
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [ 61 ] and [ 73 ] .

286. The decision of the Queensland Court of Appeal in
Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads [ 2007 ] QCA 73 ; [ 2007 ] 2 Qd R 373 , to which the parties referred and on which the Tribunal below relied, does not, in my respectful view, provide any assistance on the proper construction of the definition of ' tenement, right or interest ' in this case. Sorrento was a case which concerned the proper construction of a statute concerning the resumption or acquisition of land. The statute used the word ' interest ' and the majority held that the word ' interest ' should be given its meaning under the Interpretation Act 1954 (QLD), which defined ' interest ' in relation to land or other property as including ' a right, power or privilege over, or in relation to, the land or other property ' . Not only was the statutory language in that case different from the statutory language here, but, moreover, the purpose and object of the statute in that case was quite different to the purpose and object of the statute, and in particular to the purpose and object of pt IIIBA of the Act, under consideration in this case - as to which see
Commissioner of State Taxation v Nishu Pty Ltd (1991) 4 WAR 437 , 439 - 440, (Malcolm CJ); 448 - 449 (Wallace J) and 457 (Pidgeon J);
Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [ 2011 ] WASCA 228 ; (2011) 43 WAR 186 [ 206 ] .

287. Subject to the foregoing, I also respectfully agree with the reasoning and conclusions of Buss JA insofar as his Honour found, in relation to the second question with respect to issue 1, that the word ' right ' was engaged in the present case in the chapeau of par (c) of the definition of ' mining tenement ' in s 76(1) of the Act. PTAR had vested rights under the Martabe Contract of Work, which fell within the rubric of ' right ' in the phrase ' tenement, right or interest ' in the chapeau of par (c) of the definition of ' mining tenement ' in s 76(1) of the Act. It is unnecessary to determine whether PTAR ' s rights under the Martabe Contract of Work constituted a ' tenement ' or ' interest ' within the meaning of that phrase.