Kayuga Coal Pty Limited v John Earl Ducey & 4 Ors [2000] NSWCA 54

New South Wales Court of Appeal

CITATION : Kayuga Coal Pty Limited v John Earl Ducey & 4 Ors [2000] NSWCA 54 revised - 1/05/2000 FILE NUMBER(S) : CA 40640/99 HEARING DATE(S) : 23 February 2000 JUDGMENT DATE : 19 April 2000

Appellant: Kayuga Coal Pty Limited PARTIES : 1st Respondent:John Earl & Maysie Sarah Ducey 2nd Respondent: Gavin Michael & Adrienne May Casey 3rd Respondent: Chief Mining Warden JUDGMENT OF : Priestley JA at 1; Meagher JA at 4; Powell JA at 23

LOWER COURT JURISDICTION : Supreme Court LOWER COURT AL:30097/98 FILE NUMBER(S) : LOWER COURT Master Harrison JUDICIAL OFFICER :

COUNSEL : Appellant: Mr AJ Meagher SC / MJ Leeming Respondent: Mr JE Robson / T Faulkner Appellant: Fitzgerald White Talbot (Mussellbrook) SOLICITORS : Respondent: (1&2) Hallet & Assoc (Mussellbrook) Respondent: (3) IV Knight Crown Solicitor CATCHWORDS : Administrative law - Mining lease - Statutory prohibition against granting of leases - Statutory interpretation - Mining Act 1992 (NSW) LEGISLATION CITED : Mining Act 1992 (NSW) DECISION : Appeal dismissed with costs.

KAYUGA COAL PTY LIMITED V DUCEY & ORS

ADMINISTRATIVE LAW-MINING LEASE-STATUTORY PROHIBITION AGAINST GRANTING OF LEASES-STATUTORY INTERPRETATION-MINING ACT 1992 (NSW)

Facts: Kayuga Coal Pty Limited ("Kayuga") applied for mining leases over two portions of land. Both applications were objected to. Kayuga disputed the rejection. They sought an inquiry and report from the Chief Mining Warden pursuant to s62(6) of the Mining Act 1992 and 23B of the Schedule The Warden found the objections were justified. Both parcels of land contained "improvements", or certain features peculiar to agricultural land, which were specified in S62(1)(c ) Mining Act. Kayuga sought judicial review of this finding. They argued the features were not "improvements" for the purposes of S62 of the act. The Master found in favour of the respondents. The appellants appealed against this decision. They submitted the Master erred in her finding that the relevant section gave the Warden a discretion to include as "improvements", items not on the list. This was in particular reference to fences, which, the appellants submitted fell outside the requirements of the section, and so could not be considered "improvements".