A recent Queensland Court of Appeal decision in Thiess Pty
Ltd v Warren Brothers Earthmoving Pty Ltd, deals with the
application of the Building and Construction Industry Payments
Act 2004 (Qld) (BCIPA) to the mining and
In an update earlier this year, we advised that the Supreme
Court rejected an argument that the works performed by Warren was
within BCIPA's mining exclusion because the works were
necessary to the coal mining process and was therefore part of the
extraction of coal.
Warren's work included stripping topsoil and scrub with
scrapers and dozers, removing subsoil and overburden down to a coal
seam, and implementing water management measures to ensure the pit
did not fill with water.
The Supreme Court held that the work was not within BCIPA's
mining exclusion as the work was:
too remote in place (coal was never to be extracted from the
land which contained the dams and drains);
too remote in time (the dams and drains were built before any
major digging occurred and had to be in place to permit the
excavation to proceed);
the plant and machinery used by Warren was very different from
the machinery used for the extraction of coal; and
much of Warren's work was carried out for intermediate
purposes or purposes collateral to the extraction of coal.
The Court of Appeal affirmed the Supreme Court's decision,
also finding that BCIPA's mining exclusion did not apply to
work done for the purpose of opening a mine or preparatory to that
purpose, or work ancillary to the extraction of coal. The Court
held that the focus of the section was much more limited and
If you are in the mining and resources sector you need to review
your contracts to ensure you have maximum protection against BCIPA
claims or to prevent your rights under BCIPA being restricted. It
is also important you are aware of the possible application of
BCIPA to receiving and making payment in connection with
construction work in the mining and resource sector.
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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