How Long Is A Piece Of String? The Mining Exception Under The NSW SOPA Explained

Whilst section 5(1) of Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) goes to some lengths to give guidance as to what would be "construction work", the so-called "Mining Exception" in section 5(2) is bereft of guidance as to the proper scope of the "drilling" and "extraction" activity that section 5(2) seeks to exclude. There is no question that a lot of work readily recognisable as "construction work" occurs in the mining sector; but where along this continuum does "construction work" in mining lose that identity, fall into the Mining Exception and cease to attract the regime under SOPA?

Remarkably, until recently, this question had never been considered for the NSW version of SOPA and only twice in Queensland. Cadia Holdings Pty Ltd v Downer EDI Mining Pty Ltd [2020] NSWSC 1588 is the first decision in NSW to construe the so called 'Mining Exception' under section 5(2)(b) of the SOPA.