Redland Shire Council v Stradbroke Rutile Pty Ltd

In the financial year 1967-1968, rates were levied against the company in respect of the areas of land the subject of each of these twelve mining tenements and the company objected thereto. In an action for recovery of the amount of these rates in the Supreme Court of Queensland the learned trial judge concluded that the company, as an application holder, was liable to rates in respect of the areas to which the eleven applications related but went on to hold that to the extent to which those areas included Crown reserves they were excluded from ratability. His Honour also held that a particular basis of valuation other than that adopted by the council should apply to the land the subject of the one special mineral lease which the company held. It was against these two latter findings that the council has appealed; the company has cross-appealed in respect of the conclusions of the learned trial judge favourable to the council including his finding that it was generally liable for rates on land the subject of lease applications and of its special mineral lease.

I will deal first with the proper basis of valuation of the land within the company's one special mineral lease.

It is common ground that that land is ratable land; whether the company is its owner and liable to pay rates is in dispute. With this aspect I shall deal after adverting to the question of valuation. The council contends that, contrary to his Honour's conclusion, the value of that land should be ascertained by the special formula provided for in s. 24(4) of the Local Government Act 1936-1968 rather than by reference to unimproved values, as would be the case were the general provisions of s. 24(3) to apply.

Section 24(4) applies to any ratable lands held from the Crown under "mining lease or mining tenure other than a mining lease or mining tenure mentioned in sub-section (3) of this section" and it deems the valuation to be twenty times the annual rent payable under the relevant lease or licence; it was this basis of valuation which the council had in fact adopted but which it failed to uphold before his Honour. Section 24(3) enumerates a great variety of tenures under which land may be held from the Crown; included in these is "(r) gold-mining lease or mineral lease". The ratable value of ratable lands so held is to be its unimproved value and it was this basis of valuation for which the company contended and which his Honour upheld.

The issue then is whether land held under a special mineral lease is held under a "gold-mining lease or mineral lease" as enumerated in s. 24(3) (r) or is, on the contrary, in the words of s. 24(4), held under a mining lease not being a mining lease "mentioned in subsection (3) of this section".

The language of s. 24, when it describes the various tenures held from the Crown, uses language taken from the various Acts which create those tenures and uses it in the senses defined in those Acts, so that defined terms should, in s. 24(3), be given their defined meanings; "mineral lease" in s. 24(3) should therefore bear its defined meaning as given by s. 3 of the Mining Act, in which it is defined as "a lease for the purpose of mining for any mineral other than gold, or for purposes connected with such mining". A special mineral lease is "special" only because the Minister considers that mining operations will be difficult and costly - s. 30, that Act consequently providing special advantages which holders of such leases may enjoy. Accordingly the phrase "mineral lease" in s. 24(3) (r) in its defined sense would be wide enough to encompass a special mineral lease. However whether it is intended to do so is not so clear as to require the rejection of indications to the contrary, upon which the appellant relies.

Three reasons are urged why special mineral leases should not be regarded as one of the kinds of mining leases mentioned in s. 24(3). First it was said that there are in all, under the Mining Act, five types of mining leases: gold mining leases, mineral leases, dredging leases, special gold mining leases and special mineral leases; each is included in the Mining Act's definition of "Mining Lease" and the reference in s. 24(4) to "mining lease" is a reference to them all. However s. 24(3) mentions by name only the first three of these, doing this in pars (r) and (s). If, then, par. (r), by its reference to "mineral lease", is to be taken to include reference to special mineral leases there will remain no types of mining leases to which s. 24(4) (b) can apply; special gold mining leases must, by parity of reasoning, be taken to be included in par. (r) and all five types of mining leases will, in the words of s. 24(4), then be "mentioned in subsection (3)" so that s. 24(4) (b) will, in its reference to mining leases, have no operation.

Then attention is drawn to the separate enumeration, in pars (i) and (j) of s. 24(3), of "coal mining lease" and "special coal mining lease"; it is said that if it were thought necessary specifically to enumerate the latter the failure to refer specifically, in s. 24(3) (r) and (s) respectively, to special gold mining leases and special mineral leases assumes added significance.

Lastly reliance is placed upon the quite complex history of the amendments made from time to time to the Mining Act and Local Government Act as casting some light upon the meaning of s. 24(4) (b). It suffices to say that at the date when s. 24(4) (b) for the first time came to refer to mining leases "other than those mentioned in subsection (3)" there were then in existence under the Mining Act the five types of mining leases and all the relevant parts of s. 24(3) were in their present form. This certainly suggests that it was not intended that all types of mining leases should fall within s. 24(3) and none within s. 24(4).

I think that there is real ambiguity involved in the use, in s. 24(3) (r), of "mineral lease". This arises, in essence, from the fact that the Mining Act, while in the definition of "mining leases" apparently regarding special mineral leases as a class of lease distinct from mineral leases, nevertheless defines the latter phrase in terms wide enough to include the former. This doubt existing, the foregoing considerations do, to my mind, resolve the matter in favour of the council. Special mineral leases and special gold mining leases should not, I think, be treated as being "mentioned" in s. 24(3) but rather as falling within s. 24(4) (b). I would therefore allow the council's appeal on this point; the land within this special mineral lease falls to be valued, as contended for by the council, in accordance with the formula prescribed in s. 24(4).

There remains the point whether the company was the "owner" of this land the subject of the special mineral lease so as to be liable to be rated in respect of it. "Owner" is so defined in s. 3(1) as to include "any lessee from the Crown" and the company is such a lessee. The learned trial judge accordingly concluded this point in favour of the council. The definition of "owner" goes on to refer to the case of gold and mineral fields and to provide that within such fields the meaning of "owner" includes the holder of a mining lease; it was urged on behalf of the company, both at first instance and on this appeal, that this supplied a reason for giving to "any lessee from the Crown" a meaning excluding from its scope lessees of mining leases. The learned trial judge rejected this submission after an examination of the legislative history of the reference to gold and mineral fields; I am content to adopt his Honour's conclusion on this aspect and his reasons for that conclusion. The company is, in my view, liable to be rated in respect of the land comprised in this special mineral lease.

Although the question whether areas of land the subject of lease applications are ratable lands is raised only in the company's cross-appeal I turn to it now since, on the view which I take, it disposes of the other matters argued on this appeal.

The company contends that the learned trial judge should have held that none of the lands the subject of lease applications was ratable land; all were exempt because they fell within one or other of pars (a) or (b) of the exceptions in s. 24(1) of the Local Government Act.

Paragraph (a) of s. 24(1) excepts "Crown land which is unoccupied or is used for public purposes;", it is common ground that all the lands in question are Crown land, none of them appears to have been actually occupied either by the Crown or by any third party and the learned trial judge found on the evidence that the company was not in actual occupation of any of them. The question is whether they are "unoccupied" in the sense in which that word is used in par. (a). There is no definition in the Local Government Act of "occupied" or of "unoccupied" but the Acts Interpretation Act provides, in s. 32(e), that in every Act, subject to contrary intent, "derivatives of any term to which a meaning is assigned by that Act shall have a corresponding meaning", and "occupier" is defined in s. 3(1) as "the person in actual occupation of any land, or if there is no person in actual occupation the person entitled to possession thereof".

In reliance upon that provision of the Acts Interpretation Act the learned trial judge interpreted "unoccupied" in par. (a) of s. 24(1) as bearing a meaning corresponding to the defined meaning of "occupier". The lands were not in the actual occupation of anyone. The company had rights over the lands, these being conferred upon it by the Mining Act as an applicant for mineral leases. Those rights entitled it to possession. An "occupier" as defined included a person entitled to possession and to give to "unoccupied" a corresponding meaning involved making it inapplicable when any person was entitled to possession of the land in question. Hence the land was not unoccupied Crown land and thus excepted from ratability. It was, on the contrary, ratable land. His Honour also determined that the lands did not fall within the exception in par. (b) of s. 24(1). Concluding that the lands were ratable his Honour further held that the company was the "owner" of those lands as defined in the Local Government Act. Accordingly, liability for rates being based upon ownership of ratable land, the company was liable to be rated on lands within the area of its lease applications, subject only to particular exclusions where lands within the area of a lease application was subject to a particular Crown reservation.

The company, by its cross-appeal, challenged each of the steps by which his Honour reached these conclusions. The first step taken by his Honour was to hold, for the reasons already mentioned, that the lands subject to lease applications did not fall within par. (a) of s. 24(1).

In my view the definition of occupier in s. 3(1) of the Act cannot be used to give any special meaning to "unoccupied". Section 32(e) of the Acts Interpretation Act appears to me to have no direct application here; it is concerned only with derivatives of defined terms and "occupied", the past participle of the verb "to occupy", is not a derivative of the noun "occupier", nor, of course, is its converse, "unoccupied"; each is derived from the verb. If s. 32(e) plays any part in the interpretation of "unoccupied" it is, I think, only that, by expressly conferring upon derivatives of words a meaning corresponding to that of the word from which they are derived, it rather suggests that where the section is inapplicable the meaning of a defined word is not to be applied to words in some way related to them but not themselves defined.

Section 32(e) apart, what effect does the definition of "occupier" have upon "unoccupied"? The point is not without authority; in two decisions of the Full Court of New South Wales it was held that a definition of owner in the Motor Vehicles (Third Party Insurance) Act 1942 N.S.W. threw no light upon the meaning of the undefined word "owned" used in that legislation (Helme v. Fox [6] , and Genders v. Ajax Insurance Co. Ltd. [7] ). However on appeal to this Court in the latter case [8] a different view was taken of whether the meaning of "owned" was to be controlled by the definition of "owner". The Court observed that such an interpretation would enable the legislation to work harmoniously and said that "so far as the rationale of the provisions goes, everything points to the word "owned" being used in the sense of "owner" as defined" [9] . The "formal difficulty" that it was the latter word only that was defined was overcome by an examination of the legislation, which revealed that on occasion "owner" and "owned" was used without discrimination; the choice of which form was to be used was accidental, the words being intended to be co-extensive in their application. The conclusion reached was that "to refuse to allow the word "owned" to be controlled by the definition of "owner" where other considerations point so strongly to a correspondence of meaning would be pedantic" [9] .

1. (1948) 65 W.N. (N.S.W.) 250. 2. (1950) 50 S.R. (N.S.W.) 280. 3. (1950) 81 C.L.R. 470. 4. (1950) 81 C.L.R., at p. 483. 5. (1950) 81 C.L.R., at p. 483.

In the present case the formal difficulty which the Court there referred to again exists and there are not, I think, present those factors which in Genders' Case [10] enabled that difficulty to be overcome. The Local Government Act does not appear to employ "occupied" and "occupier" indiscriminately and in the same sense, so that they are shown to be co-extensive in application. Rarely are the two words used in the one section or in the same context; s. 52(19) (ii) does provide such an instance but the language of that paragraph, which speaks of a building or land which a person occupies "under" an owner and which later refers to a person so situated as "such occupier", suggests that there "occupier" is not, in any event, being used in its defined sense. On other occasions when "occupier" is used, such as ss. 35(22), 49(4), 41, 42 (with its special definition of occupier), 50(4), (5) and (8) and 52(3) and (32) "occupied" is not employed at all. Where "occupied" appears, as in s. 39(1) and (11), "occupier" is not used, indeed in those two sub-sections "occupied" appears in a context suggesting that actual occupation is meant.

There are other indications which go to negate the view that the defined meaning of "occupier" should be applied to "unoccupied". There is one instance in the definition section of the Act, s. 3, of a clear intention that the meaning of a defined term should apply not only to that term but also to related terms; the defined term is "subdivision"; its definition begins with these words: " "subdivision", "subdivide" and similar expressions mean and refer to dividing land into parts " This explicit reference to "similar expressions" affords a contrast to the wording of the definition of "occupier".

Again, the familiar drafting technique of adding at the end of a definition a provision which carries over to other forms of words the defined meaning is one in common use in Queensland statutes; one instance, in point here, will suffice, in the Peanut Industry Protection and Preservation Act the noun "package" is defined in s. 3 and the definition concludes by providing that the verb "pack" and its derivatives "shall have a corresponding inclusive meaning", the draftsman having presumably taken the view, correctly I think, that "pack" was not itself any derivative of "package", any more than "unoccupied" is of "occupier", so that s. 32(e) of the Acts Interpretation Acts would not suffice to produce the desired result. The use of this technique in other legislation is some indication, albeit slight, that in its absence a defined meaning should not be taken to affect the meaning of words other than that defined.

Section 3(1) operates so as to give specific and exclusive meaning to defined words and is not merely expansive of their ordinary meaning so as to confer additional meanings while leaving their ordinary meaning unaffected. This provides some reason for being rather slower than might otherwise be the case in attributing these special, defined meanings to terms other than the very terms defined. The opening words of s. 3(1) are themselves quite precise in indicating the scope of the section and give no encouragement to any wide operation of the definitions; they read:

In this Act, unless the context otherwise indicates or requires, the following terms have the meanings set against them respectively, that is to say: - .

Moreover, there is, in my view, nothing in the Local Government Act which suggests, as did the legislation in Genders' Case [11] , that only by applying to "unoccupied" the extended defined meaning of "occupier" can the scheme of the Act operate harmoniously; the contrary is rather the case. The scheme of s. 24 (1) (i), which identifies those lands which are to be ratable, is to declare all land to be ratable and then to provide a large number of exceptions, the first two of which are

(a) Crown land which is unoccupied or is used for public purposes;

(b) Land in the occupation of the Crown, whether of any Department of the Commonwealth, or of any Department of the State of Quensland: but this shall not be held to include lands rented in towns by the Crown from persons or corporations.

If in par. (a), "unoccupied" is given its ordinary meaning no particular inconvenience or disharmony occurs although the scope of the exception is enlarged beyond that which it would have if "unoccupied" means, applying the definition of "occupier", a condition in which there is no person either in actual occupation or entitled to possession; but for all that appears this may be the true legislative intent. 1. (1950) 50 S.R. (N.S.W.) 250; 81 C.L.R. 470.

If, on the contrary, the definition of "occupier" is applied to "unoccupied" this immediately gives rise to some difficulty of interpretation; this lies in identifying any unoccupied Crown land to which exception (a) can ever apply. Being Crown land, the Crown will be entitled to possession of it unless it had disposed, for the time being, of its right to possession. If the Crown is a "person entitled to possession" within the meaning of the definition of "occupier" it must follow that there will never be any unoccupied Crown land because the Crown's right to possession will then operate to convert it, for the purposes of the Act, into land occupied by the Crown.

Against this it may be contended that the Crown is not a "person" within the meaning of that word in the definition of "occupier" but it is noteworthy that it was thought necessary, in the definition of owner, also in s. 3(1), expressly to exclude the Crown by the words: "The person other than His Majesty who etc." Moreover, Hodson L.J. said in Boarland v. Madras Electric Supply Corporation Ltd. [12] , "that the word "person" in an Act of Parliament is apt to include the Crown there is no doubt". The other members of the Court took a like view, as had Upjohn J. at first instance; and see In re Mitchell, deceased, per Wynn-Parry J. [13] . It is therefore, I think, by no means clear that "person" in the definition of "occupier" would not include the Crown.

1. [1954] 1 All E.R. 52, at p. 58. 2. [1954] 1 Ch. 525, at p. 528.

Finally there is, I think, another substantial ground for not importing into the term "unoccupied" in s. 24(1) (i) concepts originating in the definition of occupier in s. 3(1). In that definition care has been taken to ensure that all land will have in relation to it some person who can be described as the occupier; in local government legislation it is obviously of convenience for a variety of purposes that duties and sanctions imposed on or against occupiers should not prove ineffective in relation to some land merely because no one is in actual, physical occupation of it. When, however, Parliament legislates by reference to different categories of land and chooses as one of these categories land which is unoccupied a quite different result is aimed at; a distinction is being drawn between two categories of land by reference to the physical condition of that land and the purpose (if any) to which it is put by the person entitled to possession of it. In such a context there seems no good reason to depart from plain meaning, particularly if to do so is to destroy one of the categories, as will occur if nothing can be found to fit the category "unoccupied" because no land which is actually unoccupied will lack some person who is entitled to possession of it.

There is, I think, for the reasons stated above, much to be said for giving to unoccupied in s. 24(1) (i) its ordinary meaning rather than a meaning derived from the special meaning which, by definition, s. 3(1) has bestowed upon "occupier". This is the construction of s. 24(1) (i) which I think should be adopted.

It follows that if the areas of land the subject of lease applications were "unoccupied", in the ordinary sense of that word, at the relevant time they will not be ratable. His Honour said, in the course of his reasons for judgment, that he was persuaded on the evidence that the company was not, in the relevant financial year, in actual occupation of any lands the subject of the eleven lease applications and went on to speak of those lands as lands in respect of which there was "no person in actual occupation". As I understand that finding it carries with it the consequence that the lands were not occupied in the ordinary meaning of that term - Newcastle City Council v. Royal Newcastle Hospital [14] . On the contrary the lands were unoccupied.

Accordingly I conclude that the areas of land the subject of the eleven lease applications all fell within the exception from ratability referred to in par. (a) of s. 24(1) (i). I would therefore allow the respondent's cross-appeal on this aspect.

This conclusion makes it unnecessary to deal with the appellant's contentions concerning such of the lease application areas as comprise reserved lands. It also makes it unnecessary to consider the arguments concerned with the effect of relevant mining legislation upon a lease applicant's possession of the land the subject of such an application.