PARTIES MINISTER FOR MINERALS and ENERGY v VAUGHAN-TAYLOR and ANOR [1991] NSWCA 201

PARTIES MINISTER FOR MINERALS' and ENERGY v VAUGHAN-TAYLOR and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and MEAGHER JJA 19 April 1991, 14 May 1991 [1991] NSWCA 201

MINISTER FOR MINERALS AND ENERGY vy VAUGHAN-TAYLOR and ANOR APPEAL from Land and Environment Court — Proceedings based on Environmental Planning and Assessment Act 1979, s76 and on Environmental Offences and Penalties Act 1989, s25 — Issue raised as to whether a mining lease was valid — Minister for Minerals and Energy joined as party to the proceeding — Appeal by that Minister against joinder — Minister argued that no consent had been given to such proceedings by the State Pollution Control Commission and that there had been no consultation between Ministers concerned — Absence of consultation not proved before judge — Statement by counsel that no consultation had taken place. Held: (Mahoney JA dissenting) Appeal dismissed — Consultation may be had after proceedings commence (per Priestley JA) Absence of consultation not proved (per Meagher JA).

Mahoney JA Since at least 10 February 1983 David Mitchell-Melcann Pty Limited ("the miner') had operated a mine upon the relevant land. In April 1990 Mr Keir Gerard Vaughan-Taylor ("the plaintiff') commenced proceedings in the Land and Environment Court against the miner to stop such mining. On 14 January 1991, those proceedings not having yet been determined, the Minister for Minerals and Energy ("the Minister') granted a mining lease (No 1239) to the miner over some or all of the subject land. On 1 February 1991 the plaintiff filed an amended application in the proceeding and sought an order from that court that the Minister be joined as a respondent in the proceeding. Hemmings J made such an order.

The Minister has, with leave, appealed to this Court against his Honour's order. The facts as they were before the learned judge were somewhat complicated. However, before this Court Mr Donovan QC for the Minister and Mr McClellan QC for the plaintiff have reduced the issues and the matters relevant to them to smaller proportions. I shall state briefly the facts as they have emerged before this Court.