CONTRACTOR STRIKES SECURITY OF PAYMENT GOLD BY SKIRTING THE MINING EXCEPTION
Mining owners and operators in most Australian States[1] will be aware of the “mining exception” in security of payment legislation. The mining exception excludes ‘the extraction (whether by underground or surface working) of minerals, including tunnelling or boring, or constructing underground works for that purpose’[2] (Mining Exception) from the definition of the term “construction work” and, consequently, the ambit of statutory interim progress payment mechanisms.
However, in a decision handed down on 11 November 2020, the NSW Supreme Court[3] followed the approach of the Queensland courts[4] by construing the Mining Exception narrowly in favour of contractors and subcontractors. In short, the Mining Exception does not extend generally to some broad category of mining industry operations.[5]
Facts
Downer EDI Mining Pty Ltd (Downer) was engaged by Cadia Holdings Pty Ltd (Cadia) the operator of the Cadia East underground panel cave mine south-west of Orange, under a “Works Contract” dated 16 November 2018 (Contract), to perform “development phase” works, being (for the most part) underground works to provide access to the proposed undercut and extraction levels for future extraction of minerals in the “production phase”[6]
Downer proceeded to adjudication on a payment claim served on Cadia. An adjudicator appointed under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) determined that Cadia pay Downer $1,017,741.72.[7]
Cadia challenged the determination on two grounds:
- the Mining Exception applied so the Contract was not a “construction contract” within the meaning of the SOPA; and
- there was no available reference date to support Downer’s payment claim.
Decision
Cadia’s challenge to the adjudication determination was unsuccessful on both grounds.
Stevenson J framed the effect of the Mining Exception as excluding ‘from the definition of “construction work”, the following works:
- extraction (whether by underground or surface working) of minerals;
- tunnelling or boring for the purpose of extraction (whether by underground or surface working of minerals; and
- constructing underground works for the purpose of extraction (whether by underground or surface working) of minerals.’[8]
His Honour held that the heart of the question of the application of the Mining Exception to a contract is what a contractor undertakes to do under the contract in question, not what work that contractor actually does[9] (which comes to be answered later).
The works under the Contract did include “tunnelling or boring” as well as “constructing underground works”. However:
- these activities were not for the “purpose of” extraction of minerals; and
- the Contract required Downer to undertake work beyond these activities which fell within the meaning of “construction work” or the supply of “related goods and services”.
On considering generally whether activities performed by a contractor are for the “purpose of” extraction of minerals, His Honour:
- agreed with Fryberg J in Thiess that the relevant purpose should be decided ‘by reference to what a reasonable person in the position of the parties would conclude as to the object of what purpose of the contract’[10];
- held that the Mining Exception is to be construed narrowly to benefit the subcontractor[11];
- held that a close “proximity” between the act of extraction and the tunnelling and boring or construction of underground works was required (and this was not so in this case, where the extraction phase would not begin until 2022 after subsequent works)[12];
- considered that “extraction” does not include work “associated with” or “preparatory to” extraction[13]; and
- noted that the SOPA expresses where there is an intention to bring in ancillary activities, which is not the case with the Mining Exception[14].
Further, in this case, His Honour considered that some works under the Contract required of Downer were “construction work” or supply of “related goods and services”, meaning the SOPA applied. Relevantly, His Honour stated (accepting Downer’s counsel’s submission):
‘…if there is a contract which contains undertakings to carry out construction work and undertakings to carry out work that it not construction work, the contract remains a construction contract. If a payment claim includes a claim for work that is not construction work, the payment claim is valid, but the adjudicator should not award an amount for work that is not construction work. Thus, the Mining Exception has an important role to play in limiting the amount that the adjudicator should award.’[15]
On the reference date point, His Honour determined that there was an available reference date under the Contract for the service of the payment claim. Most of the points raised were of limited significance for general application. One point of general interest was that a clause of the Contract required Downer to invoice ‘in respect of the Services performed’ of the proceeding month.[16] Downer’s works were performed not in the preceding month, but at an earlier time.
His Honour relied on s.13(4) of the SOPA which allows a contractor to serve a payment claim within the period determined under the construction contract or 12 months after construction work to which the claim relates was last carried out. The payment clause in the Contract attempted to restrict the operation of s.13(4) and was a void provision, by operation of s.34 of the SOPA.
Take Home Tips
Contractors who consider that they are not entitled to have recourse to security of payment legislation simply because they work on a mine site should re-examine closely the terms of their contract. Can it really be said that the contract works are for the “purpose of” extraction? Or is there some distance between the works to be performed and the eventual act of extraction?
Perhaps there are portions or stages of works under the contract to which the Mining Exception would apply, but this would not necessarily mean that the entire contract is not a “construction contract” within the meaning of the security of payment legislation.
[1] Queensland, Victoria, South Australia, Tasmania and the Australian Capital Territory. However, Western Australia is likely to shortly follow suit once the Building and Construction Industry (Security of Payment) Bill 2020 (WA) passes through Parliament.
[2] Section 5(2) of the Building and Construction Industry (Security of Payment) Act 1999 (NSW).
[3] Cadia Holdings Pty Ltd v Downer EDI Mining Pty Ltd [2020] NSWSC 1588 per Stevenson J.
[4] HM Hire Pty Limited v National Plant and Equipment Pty Ltd [2012] QSC 4 and Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd [2012] QCA 276 (Thiess)
[5] At [133].
[6] At [92] and [93].
[7] At [3].
[8] At [34].
[9] At [70].
[10] At [96], quoting Fryberg J in Thiess at [76].
[11] At [102]
[12] At [103] and [91].
[13] At [104].
[14] At [105].
[15] At [134].
[16] At [171].