FEDERAL COURT OF AUSTRALIA

Chief Executive Officer of Customs v Adelaide Brighton Cement Limited

[2003] FCA 780

CUSTOMS AND EXCISE – ADMINISTRATIVE LAW – appeal from determination made by the Administrative Appeals Tribunal – whether entitlement to diesel fuel rebate for mining operations – Act excludes diesel fuel rebate being claimed where mining was for ‘limestone’ – consideration of definition of ‘limestone’ – whether mining for limestone or its constituent minerals calcite, silica, alumina and haematite – where minerals sought in particular quantities – where minerals stockpiled in order to use them in the required quantities – Tribunal decision found mining operations not for limestone but for calcite, silica, alumina and haematite – whether Tribunal finding involved error of law – whether Tribunal correctly followed Full Court decision in Goliath v Portland Cement v Chief Executive Officer of Customs (2000) 101 FCR 11.

Customs Act 1901 (Cth)

Customs and Excise Legislation Amendment Act (No.1) 1997

Customs and Excise Legislation Amendment Act 1995 (Cth)

Customs and Excise Legislation Amendment Act (No.1) 1996

Mining Act 1971 (SA)

Income Tax Assessment Act 1936 (Cth)

Goliath Portland Cement Ltd v Chief Executive Officer of Customs (2000) 101 FCR 11

David Mitchell Ltd v Chief Executive Officer of Customs (2001) 106 FCR 252

North Australian Cement Ltd v Federal Commissioner of Taxation (1969) 119 CLR 353

Collector of Customs v Bell Basic Industries (1988) 9 AAR 382

Re Goliath Portland Cement Co v Chief Executive Officer of Customs (1998) 53 ALD 659

Chief Executive Officer of Customs v Goliath Portland Cement Co Ltd (1999) 29 AAR 182; [1999] FCA 666

Re David Mitchell Ltd v Chief Executive Officer of Customs (1998) 51 ALD 389

Collector of Customs v Bell Basic Industries Ltd (1988) 83 ALR 251

North Australian Cement Ltd v Federal Commissioner of Taxation (1989) 89 ATC 4765

North Australian Cement Ltd v Commissioner of Taxation (1969) 119 CLR 353

CHIEF EXECUTIVE OFFICER OF CUSTOMS v ADELAIDE BRIGHTON CEMENT LIMITED

S 213 OF 2002

MANSFIELD J

5 AUGUST 2003

ADELAIDE

THE COURT ORDERS THAT:

1.         The application is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is yet another case in which the issue is whether the open cut removal and handling of limestone material falls within the description of ‘mining operations’ in s 164(7) of the Customs Act 1901 (Cth) (the Act).  I use the expression ‘limestone material’ as a neutral term, for reasons which appear below, and to avoid at this point using the word ‘limestone’ which is specifically used in the definition of ‘minerals’ in s 164(7) of the Act.

2                     The issue arises on an application by way of appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 14 August 2002.  The Tribunal set aside two decisions of the applicant made by a delegate, namely:

(1)               a decision of 2 April 1996 refusing the supplementary application of the respondent for a diesel fuel rebate in relation to diesel fuel purchased between 1 July 1995 and 29 February 1996 and used in extracting and transporting limestone material, and

(2)               a series of further decisions each refusing five further supplementary applications of the respondent for a diesel fuel rebate in relation to diesel fuel purchased after 1 July 1995 and used in extracting and transporting limestone material.

3                     The Tribunal substituted decisions in each instance that the respondent is entitled to a diesel fuel rebate pursuant to s 164 of the Act for its operation at Klein Point up to and including its stockpiling of the recovered limestone material at Klein Point.  It remitted the several applications to the applicant to calculate and pay the appropriate diesel fuel rebate to the respondent.

4                     In addressing the issue, both the Tribunal and myself on this application have the benefit of a series of decisions concerning s 164, most recently two decisions of the Full Court:  Goliath Portland Cement Ltd v Chief Executive Officer of Customs (2000) 101 FCR 11 (Goliath) and David Mitchell Ltd v Chief Executive Officer of Customs (2001) 106 FCR 252 (David Mitchell).  Indeed, it is one of the grounds of appeal that the Tribunal did not follow the decision of the Full Court in Goliath.

5                     The respondent has paid duty on the diesel fuel it has used in connection with the extraction and transportation of limestone material at Klein Point over the period to which the applications relate.  It is entitled to a rebate of the duty it has paid if the diesel fuel was used ‘in mining operations (otherwise than for the purpose of propelling a road vehicle or on a public road)’:  s 164(1)(a).  It is not suggested that the respondent’s use of diesel fuel was for propelling road vehicles on a public road.  Hence, its eligibility for the diesel fuel rebate claimed depends on the respondent having used the diesel fuel in ‘mining operations’.  That term is defined in s 164(7) of the Act.

6                     For the period from 1 July 1995 to 31 July 1997 ‘mining operations’ was defined to mean:

‘(a)      exploration, prospecting or mining for minerals, or the removal of overburden and other activities undertaken in the preparation of a site to enable mining for minerals to commence; or

(b)       the dressing or beneficiation of minerals, or ores bearing minerals, as an integral part of operations for their recovery.’

From 1 August 1997, the definition of ‘mining operations’ was amended by the Customs and Excise Legislation Amendment Act (No.1) 1997 to read, so far as relevant to the present application, as follows:

‘mining operations means:

(a)       exploration or prospecting for minerals, or the removal of overburden and other activities undertaken in the preparation of a site to enable mining for minerals to commence; or

(b)       operations for the recovery of minerals, being:

(i)                 mining for those minerals including the recovery of salts by evaporation; or

(ii)               the beneficiation of those minerals, or ores bearing those minerals;

…’

7                     The amended definition is of no particular significance to the present application.  What is significant is the amendment to the definition of ‘minerals’ in s 164(7), effected by s 6 of the Customs and Excise Legislation Amendment Act 1995 (Cth) (which came into effect from 1 July 1995).  It was in effect at all times material to the applications for diesel fuel rebate to which the present proceedings relate.  The definition is as follows:

‘minerals means minerals in any form, whether solid, liquid or gaseous and whether organic or inorganic, except:

(a)                        sand, sandstone, soil, slate, clay (other than bentonite or kaolin), basalt, granite, gravel or water; or

(b)                        limestone (other than agricultural use limestone).’

Initially, all limestone was excluded from the definition of ‘minerals’, but the section of the definition in parenthesis ‘(other than agricultural use limestone)’ was inserted by the Customs and Excise Legislation Amendment Act (No.1) 1996, but to take retrospective effect from 1 July 1995.  There are also definitions of the terms ‘agricultural use limestone’ and ‘agriculture’ in s 164(7), but it is not necessary to refer to them because it was not an issue in the proceedings that the limestone material extracted from or at Klein Point was not agricultural use limestone as defined.

8                     Before the Tribunal, questions were raised with respect to whether the respondent used diesel fuel in mining operations.  One was whether its operations at Klein Point constituted ‘mining for minerals’ so as to come within the definition of mining operations.  Another was whether the limestone material extracted at Klein Point is ‘limestone’ so as to be excluded from the definition of ‘minerals’.

the uncontested facts

9                     Klein Point is on the Yorke Peninsula in South Australia.  It lies on a limestone deposit.  The mining lease which the respondent holds under the Mining Act 1971 (SA) permits it to conduct mining operations for the recovery of limestone.  The activity carried on by the respondent is ultimately for the manufacture of cement at Birkenhead (about 40 kms across the Gulf of St Vincent).

10                  Limestone is a sedimentary rock containing more than 50% of calcium carbonate, generally present in the form of the crystalline mineral calcite. 

11                  The respondent carries out sample drilling of the limestone deposits at Klein Point to obtain data about the chemical composition of the material proposed to be extracted.  Its analysis results in data being maintained in respect of 12 compounds, used to identify the composition of the whole of the limestone deposit and to plan the extraction operations at Klein Point.  In the manufacture of cement, the respondent requires particular compounds to be available in specified proportions.  The compounds include calcium carbonate (commonly known as calcite), silicon dioxide (commonly known as silica), aluminium oxide (commonly known as alumina), and ferric oxide (commonly known as haematite).  The respondent’s operation at Klein Point seeks to produce limestone material in the following proportions:  85% calcite, 10.5% silica, 1.5% alumina, and 1.2% haematite.  Other compounds are also contained within the limestone material produced at Klein Point, and the respondent seeks to limit the amount of those other compounds which it regards as deleterious to its cement production, including magnesium (which it seeks not to exceed 1.2%), and potassium and sodium (which together it seeks not to exceed 0.36%).  In some areas of the Klein Point mineral lease, the limestone material comprises up to 3% magnesium and up to 1.2% potassium and sodium.

12                  The extraction process involves first removing the topsoil.  It is stockpiled, and later respread to rehabilitate areas where extraction has taken place.  There is then about two to three metres depth of hard blocky limestone (called ‘kunkar’) which is drilled and blasted to break it up for removal.  The kunkar is also removed and stockpiled for later rehabilitation purposes.  The exposed limestone material then is removed, mainly by excavation, and stockpiled (the pre-crusher stockpiling).  It is then removed from the pre-crusher stockpiles, and sampled.  It is then ‘processed’ by crushing to the required particle size, and either shipped directly to Birkenhead or stored until shipment.  When it reaches Birkenhead it is used in the manufacture of cement.

13                  As none of the limestone material at Klein Point comprises the compounds described in the proportions sought by the respondent, it builds up the pre-crusher stockpiles from limestone material extracted from different parts of Klein Point to the intent that it will achieve the required balance of the compounds referred to by its knowledge of the detailed make-up of each pre-crusher stockpile and the combination of materials from pre-crusher stockpiles in the processing before transhipment.

14                  The Tribunal found:

‘The raw material used in the manufacture of cement is generally limestone for it contains not only calcium carbonate but, generally, some of the other three required compounds.’

There are other sources of material for the manufacture of cement to which it is not necessary to refer.

The Tribunal’s reasons

15                  The Tribunal approached its task dictated by the terms of s 164 of the Act by asking in effect three questions:

1.                  was the respondent mining for minerals (subject to the exclusion of ‘limestone’ from the definition of minerals),

2.                  if so, at what point did its mining operations cease, as it was at that point that the respondent in any event ceased to be entitled to the diesel fuel rebate, and

3.                  what is the significance of the exclusion of ‘limestone’ from the definition of minerals in s 164(7) of the Act.

16                  Thus, the Tribunal’s initial focus was on the expressions ‘mining for minerals’ and ‘recovery of minerals’.  The Tribunal followed the decisions of North Australian Cement Ltd v Federal Commissioner of Taxation (1969) 119 CLR 353 and Collector of Customs v Bell Basic Industries Ltd (1988) 9 AAR 382 in approaching the question whether the open cut extraction of limestone material is mining.  The answer to that question, it considered, was determined by an informed general usage of the expression taking into account the way in which the deposits of the limestone material occur, its character, and the uses to which it may reasonably be put.  It also referred to the meaning of the word ‘minerals’ and to what is meant by ‘recovery’ of minerals.  In the course of addressing the first question, it also referred to the decisions of the Full Court in Goliath and in David Mitchell. 

17                  In the light of its consideration of those matters, it turned to address the question of identifying the minerals for which the respondent was mining.   It found or noted that the chemical composition of the limestone material extracted at Klein Point is important to the respondent.  It also found or noted that the steps the respondent takes in its extraction of that material, including testing material taken in exploratory drilling, removal of kunkar, and maintenance of detailed records of the quantities in which some 12 substances in the limestone material exist at various places or locations, are important to the respondent.

18                  The Tribunal noted the respondent samples and tests each truck load of material taken to the stockpile, and carefully plans the stockpiling.  The Tribunal was satisfied that the respondent attempts to ensure that the material produced at Klein Point has the following proportions of compounds:  85% calcite, 10.5% silica, 1.5% alumina, and 1.2% haematite.  It also attempts to ensure that the material it produces has not more than 1.2% magnesium and not more than a combined limit of 0.36% potassium and sodium.  It concluded:

‘Having regard to all of the material, I find that the material that Adelaide Brighton Cement obtains from Klein Point is generally known both by it and by others in the industry as limestone.  It is not, however, mining it for its being limestone.  If it were doing that, it would have no need to discard the kunkar or to test the remaining limestone to ensure that it meets certain prescribed standards.  I am satisfied that it is mining it for four specific compounds that the limestone contains: calcite, silica, alumina and haematite.’

19                  Each of those compounds is a mineral.

20                  The Tribunal then continued:

‘I am also satisfied that Adelaide Brighton Cement does not separate all or any of the four minerals from each other.  It does not need to separate them for the purposes for which it uses them i.e. in the production of cement.  All that it requires is that the four minerals be present in the materials in the specified proportions and within the specified maximum levels of impurities so that they may undergo certain chemical reactions with other compounds and lead ultimately to the production of clinker.  Further physical processes lead to the production of cement.  I am satisfied, therefore, that the ultimate purpose of Adelaide Brighton Cement in mining the limestone is for use in its cement works at Birkenhead for the production of cement.  It is not for the recovery of calcium carbonate, silica, alumina and haematite.’

21                  The Tribunal was also satisfied that the respondent is mining for those four minerals, even though it does not separate all or any of them from each other or from the limestone material itself extracted at Klein Point.  It said that the respondent wins the four minerals from the earth and does so purposively because it has a specific use for them.  It no less wins or recovers them by virtue of winning or recovering all four at once.

22                  Hence, the Tribunal found that, subject to the question arising by reason of the exclusion of limestone from the definition of minerals, the respondent was ‘mining for minerals’ at Klein Point.

23                  It then found that the processes undertaken after stockpiling the extracted limestone material are directed to the use of the extracted material in the manufacture of cement.  They are not directed to improving the physical or chemical properties of the minerals removed in the extraction process.  They are not directed to the recovery of the minerals.  Instead, they are directed to the creation of other chemical compounds which constitute cement clinker.  Hence it concluded that at no stage of the processes after the extraction of the limestone material from the ground and its stockpiling could it be said that the respondent’s operations are for the recovery of minerals.  It concluded that the respondent is not entitled to a diesel fuel rebate for any part of the journey to transport the extracted material to Birkenhead.

24                  Thus, the second question was answered by concluding that the four minerals are recovered when they are stockpiled.  Further blending or crushing after that point has the objective of using the minerals in the production of cement, and is not part of their recovery.  Consequently, the Tribunal found it was at the point of stockpiling the recovered material at Klein Point that the mining operations ceased.  There is no issue on the present application as to the correctness of that part of the Tribunal’s decision.  To that point, therefore, the Tribunal had reached the view that, but for the exclusion of ‘limestone’ from the definition of minerals, the respondent would be entitled to the diesel fuel rebate for diesel fuel used in the extraction process up to and including its stockpiling of the extracted limestone material at Klein Point.

25                  The Tribunal then concluded that the exclusion of limestone from the definition of minerals did not result in the respondent not being entitled to a diesel fuel rebate up to and including the stockpiling the limestone material at Klein Point.  It is that section of the Tribunal’s reasons to which the appeal is particularly directed.  It said:

‘Does the exclusion of limestone disentitle it?  In view of the findings that I have already made, I do not consider that it does.  I have found that Adelaide Brighton Cement’s object in mining is not limestone.  Indeed, it discards some of the limestone as suitable only for land re-examination [sic reclamation].  Its operations I have found are for the recovery of calcite, alumina, silica and haematite.  They are not for the recovery of limestone.  The fact that limestone does or may contain those four minerals does not detract from this finding.  The section focuses on Adelaide Brighton Cement’s operations and on what those operations are for.  It does not focus on whether the minerals sought by Adelaide Brighton Cement are found in limestone and disentitle the company to a diesel fuel claim on that basis.’

In reaching that conclusion, the Tribunal distinguished the Full Court decision in Goliath.  It found that the respondent in this matter extracts limestone material at Klein Point:

‘because it contains calcite, alumina, silica and haematite and because those four minerals are required by it in its production of cement.  It is extracted from [sic, for – (the parties are agreed as to that correction)] those four minerals’.

In Goliath by way of contrast, the Tribunal observed, what was sought was lime, which was not present in the limestone extracted so that it could be said to be recovered from the limestone material, even though it was later derived from the limestone material as a result of a chemical reaction.  The Tribunal found the case had closer similarities to the circumstances considered by the Full Court in David Mitchell, as mining there was found to be for the mineral calcite, and the miner was entitled to diesel fuel rebate in respect of the mining operations, but not for the process in which calcite was used to recover another product.

The grounds of appeal

26                  It is convenient to identify the grounds of appeal in two general ways.  First, it is contended that the Tribunal erred in law by not following the decision of the Full Court in Goliath and in distinguishing Goliath.  The submission is that because the Tribunal, correctly, it is said, accepted that:

1.                  the limestone material was part of ‘a fully integrated process for the manufacture of cement’, and

2.                  the respondent’s extraction operations at Klein Point are not ‘materially different’ from the extraction operations conducted by Goliath,

then the respondent’s extraction of the limestone material was, in accordance with Goliath, found to be the extraction for mining or limestone.  Consequently, it was argued, the Tribunal was bound to follow Goliath and to conclude that the respondent was mining for limestone and was therefore not entitled to the diesel fuel rebate.

27                  The second general ground of appeal was that the Tribunal’s conclusion necessarily involved an error of law as to the proper construction and application of s 164(7) of the Act having regard to its findings.

Consideration

28                  The relevant statutory provisions are the same in Goliath and David Mitchell and continue to operate at the present time.

29                  Goliath is in many respects similar in fact to the present matter.  Goliath extracted limestone which contained calcite and other minerals, and used the limestone and overburden and additional minerals to manufacture cement.  It engaged a third company ‘S’ to remove the overburden at the site.  Both Goliath and ‘S’ claimed a diesel fuel rebate in respect of diesel fuel used in those processes, extending to the production of lime in the manufacturing process.

30                  The Tribunal’s decision is reported at Re Goliath Portland Cement Co v Chief Executive Officer of Customs (1998) 53 ALD 659.  It decided eligibility for the diesel fuel rebate existed.  The Tribunal concluded at 668 [46]-[47] that Goliath was mining for calcite, a mineral that is found in limestone.  The Tribunal observed at 678 [78], having considered the Parliamentary materials relating to the passage of what became the Customs and Excise Legislation Amendment Act 1995, that it is clear that it was not the intention of the government as represented by the responsible Minister of the Parliament to exclude the extraction of limestone from eligibility for diesel fuel rebate where it is being extracted for its mineral content, as it was in that present case.

31                  The present applicant successfully appealed from that decision.  The appeal was heard at first instance by Heerey J:  Chief Executive Officer of Customs v Goliath Portland Cement Co Ltd (1999) 29 AAR 182; [1999] FCA 666.  His Honour’s views are pithily expressed at [186] 25 as follows:

‘If “limestone” has been expressly excluded from the statutory definition of “minerals” it seems to me to follow inexorably that the essential and defining component of limestone, namely calcite, must also be excluded.  One cannot mine for calcite without mining for limestone, and vice versa.  Goliath’s argument requires treating the exclusion as if it read “(other than agricultural use limestone or limestone where what is sought is not the limestone as such, but a mineral that is found in the limestone).’ 

Goliath appealed from that decision.  The present applicant cross-appealed.  The Full Court dismissed the appeal by Goliath.  The appeal was however dismissed because the cross-appeal of the then respondent (the present applicant) that the Tribunal had erred in concluding that the process in respect of which diesel fuel rebate was claimed was for recovery of ‘lime’ rather than the process of the manufacture of cement.  Goliath was not eligible for the diesel fuel rebate, the present applicant successfully argued, because the activity or process in which diesel fuel was used was not mining operations but manufacturing operations.  Their Honours (Lee, Cooper and Kiefel JJ) dealt with the particular issue concerning the meaning of ‘limestone’ in the following passage at 18-19 [29]:

‘On the view we have taken of the matter it is unnecessary to deal with the question whether the exclusion of “limestone” from the definition of “minerals” carries with it the exclusion of its constituents.  Calcite is not the mineral mined or recovered.  If that were the case we are however respectfully unable to agree with his Honour the primary judge (with whom Ryan J agreed in David Mitchell) that any more was intended by the exclusion than a reference to limestone as such.  An exclusion from beneficial legislation should not, in our view, be read widely unless it is clear that it was intended to incorporate more than is conveyed, namely the stated material.  Calcite cannot, as a matter of language, be regarded as a derivative of the word limestone (as to which see Pearce and Geddes, Statutory Interpretation in Australia, (4^th ed, 1996), par [6.41]).  The reference in the exclusion allowing for two constituents of clay should not be regarded as concluding the question whether the constituents of each of the materials there referred to were also to be taken as excluded, unless they were in turn excepted from it.  At the most it creates an uncertainty.  The extrinsic materials to which regard might then be had to resolve the question show that it was not intended to refuse rebate where a mineral within the stated minerals was sought to be recovered’.

32                  Goliath sought special leave to appeal from the decision of the Full Court to the High Court of Australia.  The application was heard on 5 April 2001.  Shortly before that time, the decision of the Full Court in David Mitchell had been given, on 23 March 2001.  The application for special leave to appeal sought to argue that the Full Court had erred in substituting findings of fact for those made by the Tribunal, rather than in reaching conclusions of law.  Special leave to appeal was refused.  Gaudron J on behalf of herself and Hayne J said that the decision of the Full Court turned on two questions of law, namely whether for there to be mining operations, as that term is used in s 164(7) of the Act, minerals must be physically recovered as such, and secondly whether the evidence before the Tribunal did not permit of the finding that minerals were physically recovered as such.  Her Honour added that neither the question of construction, nor the question of the sufficiency of the evidence to found the Tribunal’s decision, gave rise to any issue of general legal principle appropriate to attract the grant of special leave to appeal.

33                  Before addressing the ratio decidendi of Goliath and determining its applicability to the present matter, it is convenient to consider the Full Court decision in David Mitchell.  As it happened, the Tribunal decision in Re David Mitchell Ltd v Chief Executive Officer of Customs (1998) 51 ALD 389 was given before the Tribunal decision in Goliath, and it followed the same course of an appeal to a single judge of the Court, Ryan J:  Chief Executive Officer of Customs v David Mitchell Ltd (1999) 43 ATR 191, [1999] FCA 1611.  Ryan J’s decision was given after the decision of Heerey J at first instance in Goliath, and the David Mitchell Full Court decision was given after the Goliath Full Court decision.  It should, therefore, throw light upon what was decided by the Full Court in Goliath.

34                  David Mitchell concerned a claim for diesel fuel rebate.  The diesel fuel was used in the extraction of limestone material for further processing into lime.  Crushed limestone was refined into calcium oxide (lime) by a process called calcination, and then (relevantly) further processed into calcium hydroxide (hydrated lime).

35                  The Tribunal based its decision on whether the process constituted mining operations, rather than quarrying, upon informed general usage of those terms.  In practical terms, therefore, its decision depended upon whether the limestone material was being extracted for its mineral content.  The Tribunal found that the limestone extracted was an ore which was mined, and that the lime produced by the calcination process was a mineral.  It further found the process of extracting lime from limestone constituted ‘dressing or beneficiation’ of minerals or ores bearing minerals and was an integral part of the operations for their recovery.

36                  The Tribunal’s decision in David Mitchell relevantly proceeded in a series of steps.  First, it concluded that if the limestone material was extracted for its mineral content then it was mining (rather than quarrying).  Because limestone is an ore, it found its extraction was for mineral content.  The ultimate product sought, lime, was a mineral, and the ‘total integrated process’ of extracting limestone and then treating it to recover lime involved ‘dressing or beneficiation of minerals or ores bearing minerals, as an integral part of operations for their recovery’.

37                  In the course of taking the last of those steps, the Tribunal dealt with the contention that the calcining process ‘refining’ limestone material containing calcite into 100% calcite, which was a step in the overall process, was simply using extracted limestone to produce limestone (as limestone by informal general usage is sedimentary rock containing a predominantly calcite content).  It rejected the contention.  It considered it had to address the whole process, and not simply a step in the process resulting in the recovery of lime.  It observed also at that point in its reasons (at 405 [54]):

‘The term limestone may be used when referring to the material fed to the kiln but in fact it is the mineral calcite, its true and accurate description is, for example, “97.2 per cent pure calcite”’.

Pithily, its finding is reflected in the following at 407 [56]:

‘The purpose of the mining operations is to recover lime, the elements of which are present in the calcite as mined’.

In its conclusions, it described the ‘process of getting limestone’ as mining, and that limestone is an ore.

38                  It dealt with the exclusion of limestone from the definition of ‘minerals’ by treating the exclusion as not altering the previous approach to identifying whether material extracted is a mineral by reference to informed general usage:  at 396 [16]; Collector of Customs v Bell Basic Industries Ltd (1988) 83 ALR 251.  It regarded the exclusion as not withdrawing the extraction of limestone from consideration as a ‘mining operation’ if it is found to be an ‘ore bearing mineral’ (at 397 [16]).

39                  Ryan J at first instance set aside the Tribunal’s decision.  His Honour at 197 [22] did not accept the Tribunal’s view as to the limited operation of the exclusion of limestone from the definition of ‘minerals’.  He agreed with the reasoning of Heerey J in Goliath at first instance as set out at [31] above.  Then his Honour rejected the line of reasoning which treated the exception of limestone as avoided by characterising the operation as the extraction of calcite.  The question first required to be answered was what mineral or minerals are sought to be recovered; the subsequent dressing or beneficiation of the material extracted to ‘recover’ a mineral cannot alter the answer as to the character of what is extracted.  His Honour concluded at 200-201 [37]:

‘I consider that the activities at Lilydale and Loongana are properly characterised as the recovery of limestone.  It is true that calcite is the commercially valuable constituent of limestone but that does not entail that limestone is an ore of calcite.  As I understand the process, nothing is done to separate calcite from the limestone before the limestone is fed into the kilns to produce lime.  Counsel for David Mitchell and Loongana emphasised that, before calcining, the limestone is subjected to screening, crushing and ‘picking’ to ensure that it has an acceptably high calcite content.  That feature would tend to support the characterisation of the process as the dressing or beneficiation of limestone, but not as part of operations for the recovery of calcite.  Accordingly, I have concluded that the tribunal erred in holding the total integrated process to the completion of calcination included dressing and beneficiation for the recovery of a mineral other than limestone.’

40                  The Full Court in David Mitchell allowed an appeal from that decision and partly restored the decision of the Tribunal.  Spender J (with whom Gyles J agreed) concluded the ‘mining operations’ ceased at the completion of the extraction process, and did not extend to the process resulting in the production of lime.  In the present application, the diesel fuel rebate sought (and granted by the Tribunal) did not extend beyond that point.

41                  The critical reasoning of Spender J (omitting his Honour’s references to the passages in the judgments of Heerey J in Goliath at first instance) set out in [31] above and of the Full Court in Goliath set out in [31] above) are at 257 [25] and [28]:

‘The Tribunal found that the purpose of the extraction process was to obtain the mineral calcite and “the extraction process … constitutes “mining operations”.  In my opinion, this is a finding of fact that there was mining for the mineral calcite.  This finding was open to the Tribunal.

…

The statement in that passage of the Full Court’s reasons that “calcite is not the mineral mined or recovered” is a statement inconsistent with the finding of the Tribunal in the present matter.  However, the conclusion of the Full Court is that if calcite was the mineral mined or recovered, it is not excluded from being mining operations by the exclusion of limestone from the definition of minerals.’

At 258 [32], Spender J added:

‘I have already indicated that, in my opinion, the Tribunal found as a fact properly open to it that the extraction process was the obtaining of the mineral calcite, and was thus mining operations.  Insofar as Ryan J characterised that process as the recovery of limestone, he appears to have accepted that the view of Heerey J that “limestone” and “calcite” are, for the purpose of the definition of “mining operations”, synonymous, in the sense that if one recovers limestone one recovers calcite, and vice versa, a view rejected by the Full Court in Goliath Portland Cement Co Ltd v Chief Executive Officer of Customs.’

Marshall J would have allowed the appeal and restored the Tribunal’s judgment in its entirety, including that the diesel fuel rebate was available for the entire process leading to the production of lime.  His Honour’s focus at 264 [75] on the ‘desired end product’ meant that he did not address in detail the significance of the exclusion of limestone from the definition of ‘minerals’ in s 164(7).  However, at 264 [71] he referred to the decision of the Full Court in Goliath in the following way:

‘The following points were fundamental to the reasoning of the Full Court in Goliath Portland Cement Co Ltd v Chief Executive Officer of Customs:

.           central to the phrase “mining operations” in s 164(7) of the Act is the notion of the recovery of minerals (see at 17 [24]);

.           in construing that phrase one focuses on “the end product” which is “the object of the operations undertaken” (which was, relevantly, cement) (see at 17 [24]);

.           a mineral must be ‘present when the material in which it is contained [is] taken from the earth” (see at 18 [29]);

.           the Full Court critically held that (at 18 [28]):

            “It is … highly artificial to speak of lime being ‘recovered’ … because it was possible to physically remove it.  This is not and could not be undertaken in this process, the manufacture of cement”;

.           all that was intended by the exclusion of “limestone” was the exclusion of “limestone as such”.  “(I)t was not intended to refuse [the] rebate where a mineral within the stated minerals was sought to be recovered” (see at 19 [30]).’

42                  I am not entirely in agreement with his Honour’s view about the way the Full Court in Goliath approached the idea of ‘the end product’.  The discussion in its reasons at 17 [24] is to determine when the recovery of minerals has been completed, and hence when the mining operation has come to an end.  In that case, the argument was rejected that the entire process leading to the manufacture of lime should attract the diesel fuel rebate.  That was what the appellant sought to restore and the cross-appeal of the present applicant sought to challenge.  The cross-appeal succeeded.  The appeal was dismissed.  The order of Heerey J at first instance was set aside because it remitted the matter to the Tribunal for reconsideration in light of his acceptance that the ‘mining operation’ may extend to recovery of lime.  Their Honours said at 18 [28]:

‘In our view it could not be said that in this case that lime was a “mineral” which was “recovered”.  Limestone is certainly recovered and the process which follows may be described as one of beneficiation of the limestone, but only as a part of a continuous process in the manufacture of cement.  At the point of stockpiling of the blend prior to use, it was not suggested that a relevant mineral could be regarded as recovered and in a form to be saleable.  The whole process undertaken is one which goes well beyond the removal of impurities to recover any mineral.  Whilst the nature of the process applied in recovery will not always be conclusive of the question whether a mineral has been recovered, what is required is that the mineral be present when the material in which it is contained was taken from the earth, as Ryan J points out in David Mitchell.  It is in that sense that one views a process or processes of recovery and what is said to be a “mineral”:  that which may be won by mining, albeit that other steps are necessary to render it useful or saleable.  The fact that his Honour held limestone not to be an ore, which differs from the finding made here by the Tribunal, does not affect the approach otherwise taken.   It is, in our view, highly artificial to speak of lime being “recovered” in a process such as this because it was possible to physically remove it.  That is not and could not be undertaken in this process, the manufacture of cement.’

Hence, their Honours remarks about the exclusion of limestone from the definition of ‘minerals’ were, as they said, obiter dicta.

43                  In North Australian Cement Ltd v Federal Commissioner of Taxation (1989) 89 ATC 4765, Spender J held that open cut limestone extraction for the purpose of using the limestone in the manufacture of cement, the limestone having a sufficient concentration of calcite, were ‘mining operations’ under the Income Tax Assessment Act 1936 (Cth).  Compare North Australian Cement Ltd v Commissioner of Taxation (1969) 119 CLR 353.  Those decisions, of course, preceded the introduction of the exclusion of limestone from the definition of ‘minerals’ in s 164(7) of the Act.

44                  In my judgment, the nature of the application for diesel fuel rebate in each of Goliath and David Mitchell explains in large measure the different outcomes in those cases, and the reasons for judgment by the Full Court in both Goliath and David Mitchell must be seen in the context of what was sought to be encompassed within the expression ‘mining operations’ as defined in s 164(7) of the Act in each of those cases.

45                  In Goliath, the extraction of limestone (containing calcite) was for use in the manufacture of cement at the site where the extraction of limestone occurred.  The limestone was extracted because it contained calcite, to be calcined to produce lime (calcium oxide), an essential ingredient in the manufacture of cement.  The claims by Goliath for diesel fuel rebate extended to its use in heating the kiln from which the cement clinker emerged.  The Tribunal found eligibility for the diesel fuel rebate extended to all Goliath’s operations up to and including the heating of the kiln when lime was recovered, but not from the point after calcination occurred.  Heerey J at first instance found the Tribunal had erred in its consideration of the exclusion of limestone from the definition of minerals in s 164(7) of the Act, and remitted the matter to the Tribunal.  His Honour remitted the matter to the Tribunal to determine whether, in the light of his judgment, Goliath’s claim should nevertheless succeed.

46                  The Full Court in Goliath had to address first the claim to diesel fuel rebate in respect of the operations up to the production of lime, as the recovered mineral.  The passage from its reasons set out at [31] shows it was not called upon to consider a claim that a relevant mineral could be recovered at the point of stockpiling of the blended limestone material prior to its use in the manufacture of cement, or the interim manufacture stage by the production of lime.  In that context, I do not take from the sentence ‘Calcite is not the mineral mined or recovered’ at [29], 18 of the Full Court’s reasons (contained in [31] above) the significance which senior counsel for the applicant placed on it.  I think it is an observation by reference to the claim made that what was recovered was lime, and the Full Court’s view that the generation of lime was not the end product of mining minerals, but a step in the manufacture of cement.  It is in that context that the decision of the Full Court in Goliath allowed the cross-appeal of the present applicant and dismissed the appeal of Goliath.

47                  It is only the subsequent obiter comments of the Full Court in Goliath set out in [31] above which, in my judgment, are directly relevant to the present application.

48                  The applications for diesel fuel rebate considered in David Mitchell (and in the present application did) seek to draw a line at the stage of stockpiling the extracted limestone material, although in David Mitchell certain of the claims extended also to the process resulting in the production of lime.  The Tribunal found David Mitchell was mining for calcite, in effect from the ore limestone, that the processes to stockpiling to ensure the correct level of calcite in the limestone was ‘dressing’ the extracted limestone, and that the calcining of limestone to produce lime was ‘beneficiation’ of the ore limestone.  It was because Ryan J considered it erroneous to characterise the extraction of limestone as the extraction of calcite that he reversed the Tribunal’s decision.  However, as the passages from the judgment of Spender J (with whom Gyles J agreed) at [41] above indicate, such a finding was open to be made by the Tribunal, and amounted to mining operations under the Act.  His Honour then referred to the Full Court in Goliath concluding that, if calcite is the mineral mined or recovered, it is not excluded from being mining operations by the exclusion of limestone from the definition of minerals.  That reference is clearly directed to the Full Court’s obiter comment in Goliath at [31].  It is made with approval, and adopted by his Honour as the basis for his decision.

49                  I have therefore come to the view that the Tribunal in this matter did not err by failing properly to understand and apply the decision of the Full Court in Goliath.

50                  In David Mitchell the mining operations were found to have come to an end when the limestone containing the mineral calcite is extracted from the earth.  The screening, crushing and picking was a dressing or beneficiation of calcite, but for the recovery of lime and not for the recovery of calcite.  It is not part of the separation of the designated mineral from the ore body in which it inheres.

51                  The present applications are clearly made to reflect the line recognised by the Full Court in David Mitchell as to when mining operations by the extraction of limestone material, ultimately for use in the manufacture of cement, come to an end.

52                  The Tribunal found the respondent was not mining the limestone material for its being limestone, but for four specific minerals that limestone contains:  calcite, silica, alumina and haematite.  It extracts limestone for those four minerals because it has a purpose for them.  The fact that no further refinement or separation of the four minerals took place before their use in the manufacture of cement did not affect the primary factual finding.  The four minerals were found to have been recovered once they were stockpiled.

53                  There has been no direct challenge to the findings of fact made by the Tribunal.  What was argued was that the findings should have led the Tribunal to the conclusion that the respondent’s extraction and storage of the limestone material amounted to mining for limestone, and so was not ‘mining for minerals’ because of the exclusion of limestone from the definition of ‘minerals’ in s 164(7) of the Act.  In my judgment, given the understanding of the Full Court decisions in Goliath and in David Mitchell, the findings of fact do not expose any such error of law on the part of the Tribunal.

54                  The finding of fact that the respondent was mining for the minerals calcite, silica, alumina and haematite was one which was open to it.  It was not obliged, as a matter of law, to conclude that because those minerals were each found in limestone that the respondent was mining for limestone.  It was not obliged, as a matter of law, to conclude that because the respondent did not then separate the four minerals from the limestone material or from each other before their application in the manufacture of cement that the respondent was mining for limestone.  I do not think either of the two Full Court decisions in Goliath or David Mitchell dictate such a view.  Nor do I think the wording of the definitions of ‘mining operations’ or of ‘minerals’ in s 164(7) dictate such a view.  Consequently, in my judgment, there has been no error of law on the part of the Tribunal demonstrated by its findings or by its application of its findings to the legislation it was to apply.

55                  In my judgment, the application should be dismissed.

Associate:

Dated:              4 August 2003