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

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

The respondent was not a person who had marked out the land in the manner contemplated by the Mining Act 1906 NSW when it made application no. 243, because it had neither obtained a permit under s. 48A nor otherwise complied with the statutory requirement for authorised marking out. An authority to enter for prospecting did not authorise marking out, and s. 58 (3) could not cure the absence of the requisite statutory marking out. The Governor therefore lacked power to grant the mining lease pursuant to application no. 243.

Jurisdiction
Australia
Procedural Posture
Appeal / Appeal to the High Court of Australia From the Supreme Court of New South Wales (court of Appeal Division), Which Had Affirmed Hope J.'s Dismissal of the Suit.
Outcome
Appeal allowed with costs.
Legal Topics
['mining Lease Applications Over Private Lands' 'marking Out Land for Mining Leases' 'permit Under S. 48 a of the Mining Act 1906 Nsw' 'authority to Enter' 'priority of Mining Lease Applications']
['mining Law' 'property Law' 'statutory Interpretation'] ['mining Lease Applications Over Private Lands' 'marking Out Land for Mining Leases' 'permit Under S. 48 a of the Mining Act 1906 Nsw' 'authority to Enter' 'priority of Mining Lease Applications']

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Procedural Posture

Appeal / Appeal to the High Court of Australia From the Supreme Court of New South Wales (court of Appeal Division), Which Had Affirmed Hope J.'s Dismissal of the Suit.

Legal Issues

  1. 1 ["Whether the respondent's failure to obtain a permit under s. 48A of the Mining Act 1906 NSW was fatal to its application no. 243 for a mining lease." 'Whether an authority to enter conferred lawful authority to enter private land for the purpose of marking out the land for a mining lease application.' 'Whether s. 58 (3) of the Mining Act 1906 NSW could warrant the grant of a lease despite the absence of marking out of the kind contemplated by the Act.']

Ratio Decidendi

The respondent was not a person who had marked out the land in the manner contemplated by the Mining Act 1906 NSW when it made application no. 243, because it had neither obtained a permit under s. 48A nor otherwise complied with the statutory requirement for authorised marking out. An authority to enter for prospecting did not authorise marking out, and s. 58 (3) could not cure the absence of the requisite statutory marking out. The Governor therefore lacked power to grant the mining lease pursuant to application no. 243.

Court Disposition

Appeal allowed with costs.

Orders

  • ['Order of the Supreme Court of New South Wales (Court of Appeal Division) and decretal order made by Hope J. set aside.' '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...