Minter Ellison Alert | High Court refuses special leave to appeal: J & D Rigging Pty Ltd v Agripower Australia Ltd

19 May 2014

The High Court has refused Agripower Australia Ltd's request for special leave to appeal the Queensland Court of Appeal's decision in J & D Rigging Pty Ltd v Agripower Australia Ltd [2013] QCA 406.

On 20 December 2013, the Queensland Court of Appeal overturned the trial court's controversial decision that 'land' the subject of a mining lease was not 'land' for the purpose of the BCIP Act. In reaching its decision, the Court of Appeal considered the ordinary meaning of 'land', as opposed to the technical or legal meaning which had been applied by the trial court. The Court of Appeal determined that, 'while a mining lease may not be legally categorised as "land", the actual land on which the building or structure is affixed does not change its character by reason of the existence of a mining lease'. If the works formed part of the land in a physical sense, the work could be 'construction work' for the purposes of the BCIP Act.

Significance of the change

The High Court's refusal to grant special leave to appeal confirms the Queensland Court of Appeal position and provides greater certainty for principals and contractors working on land subject to a mining lease as to their rights and obligations under the BCIP Act.

Who does it affect?

It is now clear that contractors who perform 'work' on land the subject of a mining lease, that is otherwise 'construction work' under the BCIP Act, may make an adjudication application in respect of the work pursuant to the BCIP Act. Conversely, respondents are no longer entitled to seek a declaration that an adjudication decision is of no legal effect because the adjudicator had fallen into jurisdictional error by deciding an application relating to 'construction work' on land the subject of a mining lease.

Author(s) Michael Creedon and Jennifer McVeigh