Most Read Contributor in Australia, September 2016
After the laggard uptake by the mining and infrastructure
industry of the Building and Construction Industry Payments Act
Qld 2004 (BCIPA), contractors and
subcontractors in these industries are now increasingly using and
enforcing BCIPA claims.
While there was doubt over the application of BCIPA to mining,
recent Queensland Supreme Court decisions Thiess Pty Ltd v
Warren Brothers Earthmoving Pty Ltd and HM Hire Pty Ltd
National Plant and Equipment Pty Ltd show that BCIPA applies
to most mining construction.
In Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd
the work involved the stripping of topsoil and scrub with scrapers
and dozers, the removal of subsoil and overburden down to the coal
seam and the implementation of water management measures to ensure
that the pit did not fill with water.
It was argued that the work fell within BCIPA's mining
exclusion as being necessary to the coal mining process and
therefore part of the extraction of coal.
The court held the work performed was:
too remote from the process of extraction as it was remote in
place (as coal was never to be extracted from the land which
contained the dams and drains); and
remote in time (as the dams and drains were built before any
major digging took place and had to be in place to permit the
excavation to proceed).
Moreover, the plant and machinery used by Warren was very
different from the machinery used for the extraction of coal.
In HM Hire Pty Ltd v National Plant and Equipment Pty
Ltd, National Plant and Equipment hired four dump trucks and a
wheel loader to HM Hire Pty Ltd to be used to perform clearing and
grubbing works, topsoil stripping and placement.
The court supported the decision in Thiess v Warren
Brothers and stated that an extension of the meaning of
"extraction of minerals" to cover work merely associated
with such extraction would detract from the purpose of the
legislation and the broad understanding given to the notion of
In addition to these decisions, we are also aware of numerous
BCIPA claims, adjudication applications and determinations, and
subsequent Supreme Court reviews involving work in the mining and
If you are in the mining industry it is imperative that you
review your contracts to ensure you have maximum protection against
BCIPA or to prevent your rights under BCIPA being restricted.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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