Bromley v Muswellbrook Coal Co Pty Ltd [1973] HCA 56

High Court of Australia Barwick C.J. Menzies, Stephen and Mason JJ. Bromley v Muswellbrook Coal Co Pty Ltd [1973] HCA 56

ORDER Appeal allowed with costs. Order of the Supreme Court of New South Wales (Court of Appeal Division) and decretal order made by Hope J. set aside. In lieu thereof—

1. Declare that according to its true construction the Mining Act 1906 NSW, as amended, does not empower His Excellency the Governor of the State of New South Wales to grant to the respondent a mining lease pursuant to its application No. 243.

2. Order that the respondent pay the costs of the appellant of the proceedings in the Supreme Court before Hope J. and the Court of Appeal.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 30 Barwick C.J.

The circumstances of the case in which this appeal is brought and the statutory provisions necessary to be considered in order to determine the fate of the appeal are set out in reasons for judgment prepared by my brother Mason, which I have had the advantage of reading.

I agree with my brother's conclusion that the respondent was not entitled to apply to the Minister for a lease of land in the ownership of the appellant at the time it made its application numbered 243 and that s. 58 (3) of the Mining Act, 1906 NSW (as amended), would not warrant the Minister in granting the lease notwithstanding that the respondent had not duly marked out the boundaries of the land desired to be leased in the prescribed manner. I agree with my brother's reasons for reaching these conclusions which are sufficient to dispose of the appeal in favour of the appellant.

A number of other matters were argued during the hearing of the appeal but, in my opinion, it is inappropriate to express any view about them having regard to the conclusion already reached.