Arm Mining Pty Ltd v SKR New Investment Pty Ltd
[2024] WASC 103
•28 MARCH 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ARM MINING PTY LTD -v- SKR NEW INVESTMENT PTY LTD [2024] WASC 103
CORAM: GLANCY J
HEARD: 15, 16 & 20 FEBRUARY 2024
DELIVERED : 28 MARCH 2024
FILE NO/S: GDA 2 of 2023
BETWEEN: ARM MINING PTY LTD
Appellant
AND
SKR NEW INVESTMENT PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WARDEN'S COURT
Coram: WARDEN MAUGHAN
File Number : PLAINT 541114
Catchwords:
General division appeal - Mining law - Appeal against Warden's decision dismissing the Appellant's plaint and Warden's consent for Respondent to lodge successive absolute caveat against the Tenement - Whether Warden exercised judicial or administrative function under s 122A(6) Mining Act - Finding that the Warden exercised administrative function under s 122A(6) Mining Act - Decision therefore not amenable to appeal under s 144 Mining Act
Legislation:
Mining Act 1978 (WA)
Mining Amendment Act 2004 (WA)
Mining Regulations 1981 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Preliminary question determined
Decision under Mining Act s 122A(6) administrative
Category: B
Representation:
Counsel:
| Appellant | : | Ms J Taylor SC & Mr M Gerus |
| Respondent | : | Mr AJ Papamatheos |
Solicitors:
| Appellant | : | Clayton Utz |
| Respondent | : | BMS Law |
Cases referred to in decision:
Allesch v Maunz (2000) 203 CLR 172
ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2019] WAWC 2
ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2023] WAWC 1
Attorney General (Cth) v Alinta Ltd (2008) 233 CLR 542
Bunnings Forest Products Pty Ltd v Reynolds Australian Alumina Ltd (Unreported, WAWC, Vol 8, Folio 19, 12 February 1992)
Deveigne v Askar (2007) 69 NSWLR 327
Fencott v Muller (1983) 152 CLR 570
GM v MS [2019] WASC 255
Huddart, Parker & Co v Moorehead [1909] HCA 36; (1909) 8 CLR 330
Plaintiff M47/2012 v Director-General of Security [2012] HCA 46
Precision Data Holdings v Wills [1991] HCA 58; (1991) 173 CLR 167
Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
R v Trade Practices Tribunal; Ex parte Tasmania Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361
Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1
Sim v Nirvana Pty Ltd [2000] WAMW 1
St Barbara Ltd v Minister for Energy, Resources, Industry and Enterprise [2008] WASCA 248
GLANCY J:
Introduction
The Appellant, ARM Mining Pty Ltd, appeals an order of the Mining Warden made on 9 January 2023 giving his consent to the Respondent, SKR New Investment Pty Ltd, lodging a successive absolute caveat against M15/1362 by reason of:[1]
[A]n equitable lien, charge or constructive trust, held by SKR to secure payment by ARM of an actual or potential indebtedness of $8,000,000 of ARM to SKR, under the Sale Agreement of May 2012 between SKR, ARM and MW for M15/1362, and more particularly set out in the Royalty Agreement made between SKR and ARM of 2 December 2012.
[1] ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2023] WAWC 1 [83].
The Appellant also appeals a finding by the Mining Warden in that same matter that the Royalty Agreement made between the Appellant and the Respondent dated 2 December 2012 which, by its terms, requires the Appellant to pay the Respondent royalties from the profits of any mining undertaken on M15/1362 up to the sum of $8 million (or to take certain other steps in the event that the Appellant sells M15/1362) (Royalty Agreement) formed part of the agreement of May 2012 between the Respondent, the Appellant and Mineral Wealth Pty Ltd (MW) for the sale of M15/1362 from MW to the Appellant (Sale Agreement).[2] That finding was essential to the Mining Warden's decision to consent to the lodging of the successive absolute caveat.
[2] ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2023] WAWC 1 [83].
The order giving consent for the Respondent to lodge the successive caveat was sought by the Respondent in its counterclaim to proceedings brought by the Appellant by plaint 541114 (Plaint), in which the Appellant sought:[3]
1.removal of an absolute caveat which had been lodged by the Respondent by reason of the Royalty Agreement;
2.a permanent injunction preventing the Respondent from lodging any further caveat against M15/1362 pursuant to the purported Royalty Agreement; and
3.that the Respondent pay the costs of the proceedings.
[3] Plaint dated 23 October 2018, Attachment A, Appeal Book Vol 1, Tab 10.
The Respondent submits that the Mining Warden's decision in relation to the Sale Agreement is correct. However, the Respondent also submits that the decision of the Mining Warden to allow the Respondent to lodge the successive caveat was a decision made in the exercise of the Warden's administrative function, with the consequence that it is not able to be the subject of an appeal to this Court.[4]
[4] The Respondent has also filed a Notice of Contention setting out further and alternative reasons upon which the court should uphold findings of the Mining Warden that an equitable lien existed. The contention being that the Appellant was estopped from contending that the $8 million royalty was not agreed as part of the Sale Agreement. It is not necessary to say more about that Notice of Contention at this stage.
Outcome and consequences
For reasons set out below, I find that the decision to give his consent to the lodgement of the successive caveat was a decision made by the Mining Warden in the performance of an administrative function and cannot be the subject of an appeal to this Court.
The Appellant submitted that if I came to that conclusion, I might simply treat that aspect of its appeal as an application for judicial review and continue to determine the matter. For reasons set out below, I will not do so.
A matter of additional concern to me is that the Respondent sought, in its counterclaim to the Plaint, a declaration that the Royalty Agreement formed part of the Sale Agreement. While the Mining Warden's reasons reveal that he had come to the conclusion that that was the case, no declaration was made to give effect to that conclusion.[5] The difficulty that presents in this appeal is that, although the Appellant appeals that finding, it is orders (including an order by which a declaration is made) which are able to be appealed rather than reasons for decision.
[5] See the Warden's orders set out at [83] in ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2023] WAWC 1.
In that circumstance, it is my preliminary view that if the Appellant wishes to persist with any aspect of its appeal, it should seek to have the Mining Warden make the declaration in order to permit the Appellant to bring a competent appeal. It might be that a declaration by the Mining Warden would not be necessary for the resolution of a judicial review application.
Given that I have decided not to determine the substantive legal issues raised on the appeal, the parties may wish to consider whether and how they may need to address this concern.
I will hear from the parties as to the orders that I should make as a consequence of the conclusion I have reached in these reasons.
Factual background
The following factual background is not in dispute.
The Appellant and MW, an entity related to the Respondent, entered into negotiations about how the Appellant might become involved in developing a mineral resource on M15/1362. Ultimately, those negotiations resulted in the Appellant purchasing M15/1362. The tenement (Tenement) was transferred to the Appellant after the transfer of an agreed sum of $3 million by it to MW. Part of the arrangements negotiated by the parties included (in short summary and depending on which party's case is accepted) either an agreement to pay a royalty to the Respondent which was further particularised in the Royalty Agreement, or a commitment to entering into a royalty agreement with the Respondent.
Ultimately, the Royalty Agreement was entered into. By that Royalty Agreement it was agreed that the Appellant would pay the Respondent a royalty of up to $8 million from the profits from any mining on M15/1362 or, if the mining lease were to be on-sold, the Appellant would either pay to the Respondent the sum of $8 million (less any amount already paid by way of royalties), or direct the subsequent purchaser to pay the Respondent the $8 million.
On 19 June 2018, the Respondent lodged an absolute caveat against the Tenement in reliance upon the Royalty Agreement (the First Caveat).
On 23 October 2018, the Appellant lodged the Plaint seeking the determination of its rights and interests, and for the removal of the First Caveat. Several grounds for doing so were advanced. They included that the Royalty Agreement was not valid and enforceable and that, even if it were valid, the Royalty Agreement did not give rise to a proprietary interest in M15/1362 and so was not an interest capable of sustaining a caveat.
On 11 February 2019, the Respondent filed a defence and counterclaim to the Plaint.
On 29 March 2019, the Appellant lodged an application in which it sought an order striking out the Respondent's defence and counterclaim and for summary dismissal of the defence and counterclaim.[6]
[6] ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2019] WAWC 2 [6].
The Respondent also applied for an injunction to be granted in the event that the First Caveat were to be removed. The application was adjourned pending the outcome of the strike out application and to allow the Respondent to address certain deficiencies in the application.[7]
[7] ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2019] WAWC 2 [2019] WAWC 2 [7] and [8].
In the reasons for decision published on 21 November 2019,[8] Warden O'Sullivan determined in interlocutory proceedings, that even accepting the Royalty Agreement was valid (a matter then in dispute), it did not create a proprietary interest in the Tenement and, therefore, it was not capable of supporting the First Caveat. Accordingly, Warden O'Sullivan found that the Respondent's defence was untenable and should be struck out without leave to replead. As a consequence, Warden O'Sullivan said in his reasons that he would make orders striking out the defence and for the removal of the First Caveat but would allow the Respondent to replead its counterclaim. The Warden also indicated that he would allow the Respondent's injunction application to proceed to hearing.
[8] ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2019] WAWC 2 [129].
In fact, at the date of the hearing of the appeal the First Caveat was in place.[9] The parties informed me that following the decision of Warden O'Sullivan, they agreed that no order for the removal of the First Caveat should be made until the Respondent's injunction application was heard and determined. That application never proceeded. At the hearing before me, the Respondent's counsel informed me that it was accepted that the First Caveat would have to be removed regardless of the outcome of these proceedings because no challenge has been brought from the decision of Warden O'Sullivan that the Royalty Agreement alone did not create a proprietary interest in the Tenement and was unable to support a First Caveat. It was explained that the First Caveat has been left in place until the successive caveat is registered so that there is no prejudice to the Respondent from the (potential) existence of a window of time where the First Caveat has been removed and the successive caveat has not yet been registered.[10] The registration of the successive caveat has been pending since March 2023.[11]
[9] Exhibit 1.
[10] ts 73, 1 February 2024.
[11] Exhibit 1.
On 19 December 2019, the Respondent filed a substituted statement of counterclaim.
On 20 July 2021, a Further Amended Substituted Statement of Counterclaim was filed.[12] In that counterclaim the Respondent claimed that the Royalty Agreement formed part of the overall Sale Agreement for M15/1362 and that the Appellant's potential indebtedness to it under the Royalty Agreement gave rise to an equitable interest in the Tenement which was capable of sustaining a caveat. On that basis, the Respondent sought in its counterclaim, consent to lodge a successive caveat pursuant to s 122A(6) of the Mining Act 1978 (WA) (Mining Act).
[12] Appeal Book Vol 1, Tab 11.
When the matter was ultimately argued before Warden Maughan, the Respondent submitted that the potential indebtedness of the Appellant to the Respondent arising from the Sale Agreement, of which the Royalty Agreement formed a part, resulted in the creation of an equitable lien, equitable charge or constructive trust, which was a proprietary interest in the Tenement and which did support a caveat.[13]
[13] ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2023] WAWC 1 [79] ‑ [80].
In contrast, the Appellant submitted that:[14]
1.the Royalty Agreement was not valid or enforceable; and
2.even if the Royalty Agreement were valid, it did not form part of the Sale Agreement and thus did not create a proprietary interest in the Tenement and was therefore not capable of supporting a caveat.
[14] Appellant's Outline of Opening Submissions dated 9 August 2023 [81].
In reasons published on 9 January 2023,[15] Warden Maughan found that the Royalty Agreement was valid and enforceable. He also found that the Royalty Agreement formed part of the Sale Agreement and resulted in the creation of an equitable lien or an equitable charge or constructive trust in favour of the Respondent each of which was capable of being secured by way of caveat under s 122A(6) of the Mining Act.
[15] ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2023] WAWC 1.
As a consequence of his reasons, Warden Maughan made the following orders:[16]
[16] ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2023] WAWC 1 [83].
1.The plaintiff's claim is dismissed;
2.A declaration that the Royalty Agreement dated 2 December 2012 and made between SKR and ARM is a valid and binding agreement and of full force and effect; and
3.Pursuant to s 122A(6) of the Mining Act 1978 (WA), SKR has the Warden's consent to lodge a successive absolute caveat as against ML 15/1362 for:
'An equitable lien, charge or constructive trust, held by SKR to secure payment by ARM of an actual or potential indebtedness of $8,000,000 of ARM to SKR, under the Sale Agreement of May 2012 between SKR, ARM and MW for M15/1362, and more particularly set out in the Royalty Agreement made between SKR and ARM of 2 December 2012.'
4.I direct that the parties confer as to appropriate cost orders to flow from these reasons with liberty to apply to the court on 72 hours notice in the absence of agreement.
What the Warden did not do is make an order declaring that the Royalty Agreement formed part of the Sale Agreement, although it is apparent from his reasons that he found that it was.[17] The parties suggested the making of that declaration had simply been overlooked.[18]
Preliminary issue arising - appeal or judicial review?
[17] ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2023] WAWC 1 [65] and [70(iii)].
[18] ts 67, 15 February 2024 and ts 217, 20 February 2024.
The Respondent submits that the Appellant has no entitlement to appeal from the Warden's decision to consent to the lodging of the successive caveat. The Respondent submitted that this is because, such a decision was made by the Warden exercising his administrative function, and that s 147 of the Mining Act only provides for appeals to this court from decisions made in the exercise of judicial power in the warden's court. The Respondent submits that any review of the Warden's decision to consent to the lodgement of the successive caveat would need to proceed pursuant to a judicial review application.
The Appellant's primary submission is that the decision to consent to the lodging of a successive caveat by the Respondent was made by the Warden in the warden's court and involved the exercise of judicial power and is, therefore, a decision within this Court's appeal jurisdiction.
The Appellant submitted that, given the Respondent's argument, two courses are open to me.
First, if I come to the view that the order consenting to the lodgement of the successive caveat can only be challenged by way of judicial review, I should simply treat the appeal (or that portion of it) as an application for judicial review. The Appellant submitted that this would be permitted by O 2 r 1(1), r 1(3) and r 2 of the Rules of the Supreme Court 1971 (WA) (RSC). It submitted that the submissions which the Appellant has already made are the same as the submissions it would make in any judicial review proceedings.
Secondly, in the alternative, I could deal with the question raised by the Respondent as a preliminary issue so that if I find that the court has no jurisdiction to determine an appeal in relation to the decision to consent to the lodgement of a successive caveat, the Appellant can then bring a judicial review application. It submits that, if an extension of time to commence the judicial review application is granted, it would then make the same arguments in that proceeding, which I could then determine on the basis of submissions made in the appeal hearing.
The Appellant did, however, acknowledge that additional procedural steps that would need to be taken in a judicial review application, and that it would need leave as an application is now out of time.[19]
[19] ts 217, 20 February 2024.
For the following reasons, I will not take the first course of action proposed by the Appellant.
First, the matters arise in two different jurisdictions. I do not consider that a matter in the Court's appeal jurisdiction can simply be treated as an application in the Court's review jurisdiction. I do not regard the commencement of an appeal rather than an application for prerogative relief to be an irregularity which can be remedied by order of the Court under RSC O 2 as was submitted by the Appellant. Order 2(1) of the RSC is intended to deal with procedural irregularities and not jurisdictional errors of a fundamental kind.[20]
[20] Deveigne v Askar (2007) 69 NSWLR 327 [141].
Secondly, even if I could proceed under RSC O 2 as proposed by the Appellant, I would not do so. Different parties are involved in judicial review proceedings than those who have been served in the appeal. The Warden would need to be served with the application. Although it is almost inevitable that he would file a notice of intention to abide he is still a party, and it is not inconceivable that he may wish to provide some factual material for consideration in a judicial review proceeding for the assistance of the court that would not offend the Hardiman principle.[21] It may also be thought necessary for the Attorney General to seek leave to appear on the hearing of the judicial review application in order to advance what he regards to be the proper construction of the Mining Act. An opportunity to consider taking that course should be accorded to him.
[21] R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The High Court further said that this was not a course which it would wish to encourage and that 'where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal'.
Thirdly, as the application for judicial review would be out of time, leave to proceed with it would be required. Matters such as any prejudice occasioned by the delay in commencing the proceeding would need to be considered in determining whether to grant such leave. While it may well be the case that no prejudice could be said to have been occasioned by delay given that the Respondent has been on notice that the Appellant takes issue with the Warden's decision since the appeal was filed, I do not presently have sufficient evidence upon which to determine that question. I do, however, note that the Respondent seems to indicate that it would oppose the grant of leave on the basis that the jurisdictional issue had been raised by it some months ago and the Appellant made its choice and should be bound by it.[22]
[22] ts 72, 15 February 2024.
Fourthly, prerogative relief is discretionary and there is no evidence before the Court addressing any discretionary factors which might be advanced in opposition to the grant of prerogative relief. Orders for the filing of any evidence and submissions going to those matters would need to be made and the evidence and submissions considered in any judicial review proceeding. It is not the case that I can be certain that there would be nothing further for the court to consider in determining a judicial review application.
The Appellant's second proposed course of action also presents some difficulties. First, in some respects the Appellant could be seen to be asking for an advisory opinion from the court. Secondly, how much of the substantive issues raised in the appeal should I determine in this proceeding in addition to the point about the nature of a warden's function under s 122A(6) of the Mining Act? I am reluctant to embark on too much consideration of the law before I ascertain whether the Attorney General would seek to be heard in relation to the proper construction of the Mining Act if I find that the matter (or part of it) should have proceeded as a judicial review application. Doing so might not be appropriate before having the benefit of the Attorney General's submissions. In so saying, I acknowledge that not doing so may prolong the resolution of this matter and that the Attorney General may decide not to seek to appear on the basis that the Respondent is an appropriate contradictor.
Additionally, as I have already identified in this case, no order was made giving effect to the decision of the Warden that the Royalty Agreement formed part of the Sale Agreement and gave rise to an equitable lien, equitable trust or constructive trust.
If I find that the decision to consent to the lodgement of a successive caveat is a matter for judicial review rather than appeal, then, to the extent that the Appellant needs, or wishes, to continue to pursue an appeal, it is my preliminary view that the consequence of the absence of a declaration to that effect is that there would be nothing which could then be the subject of an appeal to this court. As much was acknowledged by counsel for the Appellant.[23] This is because appeals to this Court are from a 'final judgment, determination or decision of a warden's court' under s 147 of the Mining Act rather than from reasons for decision.[24]
[23] ts 217, 20 February 2024.
[24] See Allesch v Maunz (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ). While the case concerned whether an appeal under s 79A(1A) of the Family Law Act 1975 (Cth) proceeded by way of a rehearing or a hearing de novo the majority stated: The critical difference between an appeal; by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error …
The Appellant contends that, if I find that the granting of consent to the successive caveat was an administrative decision, it will submit that the Warden's findings that the Royalty Agreement formed part of the Sale Agreement and gave rise to an equitable lien, equitable charge or constructive trust are wrong and caused him to make a jurisdictional error. If that is the case, then it may be that there is no need for any aspect of the current appeal to continue, and no need for any declaration to have been made by the Warden.
Having regard to those matters, I have come to the conclusion that the best course is not to embark on consideration of the grounds of appeal unless I determine that the decision to consent to the lodgement of a successive caveat was a decision of the warden's court.
I therefore turn to determine the threshold question of whether the decision to consent to a successive caveat is a decision capable of appeal under s 147 of the Mining Act, or one which would need to be challenged by way of judicial review.
Appeal or judicial review ‑ is the decision to consent to lodgement of a successive caveat an exercise of administrative or judicial power
Appeals are creatures of statute. That is, an entitlement to appeal is a statutory right. Section 20 of the Supreme Court Act 1935 (WA) (Supreme Court Act) confers on the Supreme Court jurisdiction to determine any appeal that the Court or judge is empowered by written law to determine.
Section 147 of the Mining Act provides that, subject to s 135(2) and s 151, any person aggrieved by any final judgment, determination or decision of a warden's court, may appeal therefrom to the Supreme Court. Sections 135(2) and 151 are not relevant in this case.
Therefore, a right of appeal to this Court may be made only from a final judgment, determination or decision of the warden's court and not from administrative decisions of a warden. Decisions of the latter kind are amenable to prerogative writs.[25]
[25] Hunt M, Kavenagh T & Hunt J, Hunt on Mining Law of Western Australia (5th ed), Federation Press 2015, pages 297 ‑ 302.
Determining whether the Warden's decision to consent to the lodging of a successive caveat in this case was an administrative decision or a judicial decision of the warden's court, begins with identifying the relevant provisions of the Supreme Court Act and the Mining Act.
Thus, in order to determine whether the decision to consent to the lodgement of the successive caveat is a judicial or administrative decision, I need to determine whether the power exercised by Warden Maughan to permit the lodging of a successive caveat is properly to be regarded as a final judgment, determination or decision of a warden's court.
The Respondent submits that both it and the Appellant were entitled to invoke the jurisdiction of the warden's court to have its true interest in M15/1362 determined. It submits that the Warden did so in the warden's court in the exercise of judicial power by determining that the Royalty Agreement was valid and enforceable and that the Respondent had a vendor's lien (or an analogous equitable lien) or equitable charge or constructive trust over the Tenement because the Royalty Agreement formed part of the Sale Agreement. However, the Respondent submits that the Warden was exercising administrative power rather than judicial power when subsequently determining whether to exercise his discretion to give consent to the lodgement of the successive caveat under s 122A(6) of the Mining Act.
The Appellant contends that the Warden's decision to give consent to the lodgement of the successive caveat was made in proceedings in the warden's court[26] and was a decision made in the exercise of judicial power. The Appellant submits that, the Respondent having sought that relief in its counterclaim to the Plaint, proceedings which were clearly in the warden's court, cannot now claim that the decision is administrative rather than judicial in nature.[27]
[26] The Warden's decision was set out in reasons in a warden's court decision: ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2023] WAWC 1.
[27] Indeed, the Appellant's counsel described the Respondent's position as an 'extraordinary proposition' at ts 211, 20 February 2024.
As to that last point, a party cannot consent to jurisdiction that a decision maker does not have.[28] Accordingly, the Respondent is entitled to submit in this proceeding that the Appellant cannot appeal the Warden's consent to the lodgement of the successive caveat on the grounds that the decision is not amendable to appeal notwithstanding that it may have taken a different position in the proceeding below.
[28] That is different from a party being estopped from denying jurisdiction after consenting, including by conduct, to the waiver of an irregularity.
Having identified the entitlement to appeal under the Supreme Court Act and the Mining Act, it is necessary to construe the Mining Act in order to determine whether the power conferred under s 122A(6) is a final judgment, determination or decision of the warden's court. It will also be necessary to consider whether the decision which is made under that section is one which involves the exercise of judicial or non‑judicial power.
The principles of statutory construction are well understood. They were recently restated by the Court of Appeal in Prichard v M 6:8 Legal Pty Ltd in the following passages:[29]
[29] Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4 [41] ‑ [44] (Mitchell JA, Hall JA & Solomon J).
[41]This court recently reiterated the importance of statutory text to the exercise of statutory construction in Chief Executive Officer, Department of Water and Environmental Regulation v Waroona Resources Pty Ltd. Consistently with that discussion, statutory construction is a process of determining the objective meaning of the legislation by the application of recognised rules of interpretation to the legislative text, understood as a whole and in its context. As the High Court observed in Zheng v Cai:
It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor. Rather, judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws … the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy. (citations omitted)
[42]The primacy of the language which Parliament has chosen to use was emphasised by French CJ, Hayne, Crennan, Bell and Gageler JJ in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself. (citation omitted)
[43]The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.
[44]Legislative purpose is to be ascertained from what the legislation says, rather than any assumption about the desired or desirable reach or operation of the relevant provisions. Identifying the legislative purpose is itself an objective exercise of statutory construction, which does not involve a search for what those who promoted or passed the legislation may have had in mind when it was enacted. (This is why the appellant's attempt to rely on a statutory declaration by a member of Parliament at the time of enactment of the Amendment Act was properly rejected by the primary judge). Nor is it for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.
The scheme of the Mining Act and the amendments made by the Mining Amendment Act 2004 (WA)
The terms 'warden' and 'warden's court' are defined in s 8 of the Mining Act. Those definitions are:
warden means a warden of mines appointed in accordance with this Act;
warden's court means the warden's court constituted under this Act or deemed so to be for the mineral field or district thereof in which the subject matter in relation to which the term is used arose or is.
Section 132 of the Mining Act sets out the jurisdiction of the warden's court. It provides as follows:
132.Jurisdiction of warden's court
(1)A warden's court has jurisdiction to hear and determine all such actions, suits and other proceedings cognizable by any court of civil jurisdiction as arise in respect of —
(a)the area, dimensions, or boundaries of mining tenements;
(b)the title to, and ownership or possession of, mining tenements or mining products;
(c)water to be used for mining and any questions or disputes relating thereto;
(d)trespass or encroachment upon, or injuries to, mining tenements;
(e)specific performance of contracts relating to mining tenements or mining;
(f)transfers and other dispositions of, and charges upon, mining tenements;
(g)trusts relating to mining tenements or mining;
(h)partnerships relating to mining tenements or mining, the existence, formation, and dissolution thereof, the taking of accounts connected therewith, the contribution of the partners as between themselves and the determination of all questions arising between the partners;
(i)contribution by or between persons holding joint or several interests in mining tenements towards rent or other expenses in relation thereto;
(j)encroachment or trespass upon, or injury to, land by reason of mining, whether the land is held under this Act or otherwise;
(k)encroachments upon, injuries to, and matters affecting roads, tramways, railroads or other property of whatever kind constructed, held or occupied under this Act;
(l)the partition, sale, disposal, or division of any mining property, or the proceeds thereof, held by 2 or more persons having conflicting interests therein,
and generally all rights claimed in, under or in relation to any mining tenement or purported mining tenement, or relating to any matter in respect of which jurisdiction is under any provision of this Act conferred upon the warden's court.
(2)Every warden's court has jurisdiction throughout the State, including any area that comes within paragraph (b) of the definition of land in section 8(1), but any action, suit or other proceeding within the jurisdiction of a warden's court in respect of, or in relation to, any mining tenement shall be brought in the warden's court for the mineral field or the district thereof assigned to the court and in which the mining tenement is.
(3)Where a warden's court is satisfied that any action, suit or other proceeding pending in the court has been erroneously brought before the court, or could more conveniently be dealt with in another warden's court, the court may, notwithstanding subsection (2), order the mining registrar of the court —
(a)to transmit a copy of the record of the proceedings to the mining registrar of such other court; and
(b)to give notice thereof to the parties to the action, suit or proceeding.
(4)When the mining registrar receives a copy of the record transmitted to him pursuant to subsection (3) —
(a)he shall appoint a day for the hearing or further hearing or other consideration of the action, suit or proceeding so transmitted; and
(b)he shall give notice thereof to the parties thereto,
and the action, suit or proceeding shall be heard or considered accordingly.
Section 132 of the Mining Act does not expressly confer on the warden's court any express jurisdiction in relation to caveats.
Section 134 sets out the powers of the warden's court. The powers conferred by that section are, of course, only exercisable where there is jurisdiction conferred on the warden's court under s 132 of the Mining Act. Section 134 provides as follows:
134.Powers of warden's court
(1)A warden's court has power to make orders on all matters within its jurisdiction, for —
(a)the enforcement of contracts;
(b)the awarding of damages or compensation;
(c)the appointment of receivers;
[(d) deleted]
(e)the determination of the area, extent, dimensions or boundaries of any mining tenement or as to the respective rights of the owner of the primary tenement and the special prospecting licence or mining lease for gold granted in relation to that tenement pursuant to section 56A, 70 or 85B;
(f)the declaration or enforcement of any trust relating to mining tenements or mining operations and the product thereof;
(g)the declaration of any partnership proved to exist between any persons, the taking of accounts relating thereto, the determination of contributions between the partners therein, and the settlement of all questions arising in relation thereto;
(h)the dissolution of mining partnerships and the division of the property thereof between the parties entitled thereto either by sale, partition or otherwise, as may be agreed between the parties or as the warden's court, in case of dispute, may order;
(i)the partition, sale, disposal, or division of any mining property, or the proceeds thereof, held by 2 or more persons having conflicting interests therein;
(j)the cessation or suspension by any party of any mining operations or works in connection therewith causing or likely to cause, injury to any other party,
and generally for the determination and settlement of all actions, claims, questions and disputes properly brought before the warden's court, and for the enforcement and carrying out of any order previously made, and for awarding or apportioning costs in any such proceedings.
(2)The costs of all proceedings in the warden's court under this Act shall be in the discretion of the court and the amount thereof may be determined by the court or taxed by the warden or the mining registrar, as the court may direct.
(3)A warden's court at any stage of any proceedings pending therein may, of its own motion, or on the application of any party to those proceedings, order —
(a)the adding, joining, substituting, or striking out of any party in, to, for or from those proceedings;
(b)any person having the possession, custody, or control of any minerals or other chattels to which those proceedings relate, to deposit the minerals or chattels with such person at such time and place as is specified in the order pending any further order with respect thereto;
(c)the valuation, sale or other disposal of any such mineral or such chattels of any person;
(d)the appropriation and delivery of any such minerals or chattels or any portion or part thereof or proceeds thereof, to any person in or towards the satisfaction of any order made against the owner thereof for the payment of any sum of money;
(e)the seizure of any such minerals or chattels by any bailiff or other person specified in the order and the detention thereof pending any further order with respect thereto;
(f)the cessation or suspension at any time and from time to time of any mining operations or works, or the carrying on thereof under the direction or control of some person appointed by the warden's court, for such period as seems necessary to the court;
(g)that any person shall do, or refrain from doing, as the case may require, any such act or thing upon or in relation to any mining tenement or property the subject matter of any proceeding as the court thinks fit;
(h)the measurement or survey of any land or mining tenement or part thereof, and the making of plans and drawings thereof by any person duly qualified for the particular purpose;
(i)the inspection of any land, mine or works by any specified person, and the taking of samples of any mineral or that a report thereon be made to the warden's court by any specified person;
(j)the taking of accounts by any specified person in relation to any mining partnership or to the respective shares or interests of any person interested in any mining property, mining tenement or mineral;
(k)the payment to any person or into court of any sum of money, or the giving of security therefor, for or towards the expenses of carrying out or giving effect to any such order, or for the payment of costs,
and any such order may be made upon such terms or conditions as to costs, compensation, security or otherwise, as the court thinks fit.
(4)Without affecting the exercise by the court of its other powers, the power conferred by subsection (3)(g) may be exercised by the court of its own motion or on the application of any person prior to the commencement of an action or other proceeding in the court, if the court is satisfied that the applicant has sufficient grounds for making the application.
(5)Subject to this Act and without affecting the jurisdiction of a warden's court, a warden's court has and may exercise in relation to all matters relating to any civil proceeding under this Act the like powers and authorities as are conferred upon the Supreme Court.
(6)In all respects, except as expressly provided by or under this Act, the practice and procedure of a warden's court as a court of civil jurisdiction shall be the same as the practice and procedure of the Magistrates Court in like matters.
Section 134 confers no express power on the warden's court to consent to the lodgement of a successive caveat over a mining tenement.
The power to consent to the lodging of a successive caveat is conferred by s 122A of the Mining Act which deals with caveats generally. That section provides:
122A.Lodgment of caveats
(1)A person claiming an interest in a mining tenement may lodge —
(a)a caveat against the mining tenement forbidding the registration of a dealing or surrender affecting the mining tenement or interest; or
(b)a caveat against the mining tenement forbidding the registration of —
(i)a dealing affecting the mining tenement or interest unless the dealing expressly states that it is to be subject to the interest claimed by the caveator; or
(ii) a surrender affecting the mining tenement or interest.
(2)If —
(a)the holder of a mining tenement has entered into an agreement with another person relating to —
(i)the sale of the holder's interest in the mining tenement; or
(ii)any other matter connected with the holder's interest in the mining tenement; and
(b)the agreement so provides, either party to the agreement may lodge a caveat against the mining tenement forbidding the registration of a dealing or surrender affecting the mining tenement or interest together with a copy of the agreement.
(3)A caveat lodged under this section is to —
(a)be in the prescribed form; and
(ba)be lodged in the prescribed manner; and
(b)be accompanied by the prescribed fee; and
(c)state the full name and address of the caveator; and
(d)be signed by the caveator or an agent of the caveator; and
(e) give an address within the State for the service of notices and proceedings in relation to the caveat.
(4)If a caveat is lodged under this section —
(a)a memorial or copy of the caveat is to be entered in the register; and
(b)except in the case of a consent caveat lodged by the holder of a mining tenement, a notice stating that the caveat has been lodged is to be sent by certified mail to the holder of the mining tenement affected by the caveat.
(5)Subject to section 122B, a caveat lodged under this section has effect from the time of lodgment.
(6)Successive caveats shall not be lodged by, or on behalf of, the same person in respect of the same subject matter except with the consent of a warden.
The Mining Act has and continues to confer both administrative and judicial functions on mining wardens. Historically, it has been difficult to determine when a warden was exercising administrative functions and powers and when a warden was exercising judicial power. The Mining Amendment Act 2004 (WA) (Mining Amendment Act),[30] which commenced on 31 March 2007, was said to have 'clarified' the issue by making amendments to the Mining Act to 'separat[e] the warden's administrative functions from the judicial functions of the warden's court' with the result that, where it is intended that something is to be done by a warden exercising a judicial power reference is made to the 'warden's court' whereas when an administrative function is conferred the reference is to the 'warden'.[31]
[30] In particular, pt 9 of that Act.
[31] Hunt M, Kavenagh T & Hunt J, Hunt on Mining Law of Western Australia (5th ed), Federation Press 2015, page 304.
The Explanatory Memorandum for the Mining Amendment Bill 2004 (WA) said in relation to pt 9:
Part 9 rationalises the different roles of the warden and the warden's court. At present the Act empowers a warden with both administrative and judicial powers, however the Mining Act 1978 is unclear as to when and in what circumstances a warden acts judicially as opposed to acting in an administrative capacity, and as distinct from the role of the warden's court.
Inconsistent terminology used throughout the Act further clouds the issue. What powers a warden has impacts on such issues as to whether costs may be awarded to parties to a dispute and in what circumstances, the issue of subpoenas and summons for witnesses in what instances security for costs may be ordered.
This Part therefore amends the Act to distinguish between the roles of the warden and warden's court and provides for the warden's separate powers and functions to be prescribed in the regulations.
Consideration of the Mining Amendment Act indicates a distinction was drawn between matters undertaken in the warden's court, where that expression was inserted into the Mining Act and where functions were performed by the warden.
The fact that s 122A(6) uses the word 'warden' rather than the expression 'warden's court' therefore tends to indicate an intention by Parliament that decisions about whether to consent to the lodgement of a successive caveat would be an administrative decision of the warden, and not a judicial decision made in the warden's court.
Nevertheless, it might be that if the warden's court has the jurisdiction to resolve the dispute that arose between the parties as to the validity of the Royalty Agreement and the question of whether the Royalty Agreement formed part of the Sale Agreement, then the consent to the lodgement of the successive caveat which followed from the resolution of that dispute:
(a)is a power exercised for the 'determination and settlement of all actions, claims, questions and disputes properly brought before the warden's court' and thus exercisable by the warden's court pursuant to s 134(1); or
(b)alternatively, in the exercise of the power conferred on the warden's court by s 134(2)(g) to permit a person to do a thing in relation to any mining tenement as the warden's court thinks fit.
Under the Mining Act, a caveat is a means of protecting unregistered and unregistrable legal and equitable interests in mining tenements. A caveat operates as an injunction preventing the registration of any interests inconsistently with the caveat thus protecting the interests claimed in the caveat against subsequent registrations, if substantiated.
A caveat under the Mining Act will continue until the caveat is withdrawn, the warden orders its removal,[32]or in the case of a consent caveat, the expiry of the time specified in the agreement. Additionally, under s 122E(1)(c) of the Mining Act an absolute caveat or a subject to claim caveat lapses on the expiry of 14 days after notification by or on behalf of the Minister of an application for registration of a dealing or surrender. This process forces the caveator to act to substantiate the interest in the caveat when a dealing or surrender is lodged for registration. Section 122D of the Mining Act authorises the warden to consent to the registration of a dealing or surrender while a caveat is in force.
[32] Mining Act s 122E(1)(a), s 122E(1)(b) and s 122E(2).
While arguable, I do not consider that the approval of the lodging of the successive caveat can be said to be the exercise of a power conferred upon the warden's court by s 134(1) or s 134(2)(g) of the Mining Act. The power to consent to the lodgment of a successive caveat is expressly conferred by s 122A(6). A dispute about whether the Royalty Agreement was valid and formed part of the Sale Agreement is not resolved by the consent to the lodgment of successive caveat. In my view, that dispute is resolved by a declaration as to the validity or otherwise of the Royalty Agreement and a declaration as to whether it forms part of the Sale Agreement.
The caveat merely protects the interest determined to exist where the warden, acting under s 122A(6) consents to the lodgment of the successive caveat until it is withdrawn, the warden orders its removal,[33]or in the case of a consent caveat, the expiry of the time specified in the agreement or in accordance with s 122E(c) of the Mining Act.
The indicia of judicial power
[33] Mining Act s 122E(1)(a), s 122E(1)(b) and s 122E(2).
The determination of the warden's court or the warden acting administratively is informed by consideration of whether the decision under s 122A(6) of the Mining Act bears the hallmarks of judicial or administrative power.
In Huddart, Parker & Co Pty Ltd v Moorehead, the High Court defined judicial power in the following terms:[34]
[t]he power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
[34] Huddart, Parker & Co v Moorehead [1909] HCA 36; (1909) 8 CLR 330, 357 (Griffith CJ).
In R v Trade Practices Tribunal; Ex parte Tasmania Breweries Pty Ltd,[35] the High Court elaborated upon that description of judicial power saying that it generally involves 'a decision settling for the future' an issue or question that arises between parties as to the existence of a right or obligation, 'so that an exercise of power creates a new charter by reference to that question [or issue] is in the future to be decided as between those persons or classes of person'.
[35] R v Trade Practices Tribunal; Ex parte Tasmania Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, 374 (Kitto J).
The question of whether a decision maker is exercising judicial or administrative power is determined by considering a number of factors. As the High Court observed in Attorney General (Cth) v Alinta Ltd,[36] there is no single combination of necessary or sufficient factors which taken together identify a power as judicial power.
[36] Attorney General (Cth) v Alinta Ltd (2008) 233 CLR 542 [35] (Kirby J), [93] (Hayne J with whom Gleeson CJ & Gummow J generally agreed), [151] (Crennan & Keifel JJ).
It is well accepted, however, that an important indicia of judicial power is that it involves the determination of presently existing legal rights and obligations in the context of a dispute about those matters. In Rizeq v Western Australia,[37] the High Court identified the judicial power as involving the 'quelling of controversies about legal rights and obligations through the ascertainment of facts, the application of the law and, where appropriate, the exercise of judicial discretion'.
[37] Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1, 23 (Bell, Gageler, Keane, Nettle & Gordon JJ) citing Fencott v Muller (1983) 152 CLR 570, 608.
In GM v MS,[38] Quinlan CJ stated that 'judicial power is concerned with the ascertainment and enforcement of existing rights and obligations'. His Honour stated:[39]
The unique and essential function of judicial power is the quelling of controversies about legal rights and legal obligations through ascertainment of the facts, the application of the law and the exercise where appropriate, of judicial discretion.
[38] GM v MS [2019] WASC 255 [62].
[39] GM v MS [60].
That is, judicial power involves the determination of what a person's rights and obligations are, rather than what they should be.
In contrast, in Precision Data Holdings v Wills,[40] the High Court stated that the determination of what legal rights and obligations should be created in the future will generally be 'outside the realm of judicial power'.
[40] Precision Data Holdings v Wills [1991] HCA 58; (1991) 173 CLR 167, 189.
As Quinlan CJ notes in GM v MS,[41] one of the difficulties in determining whether a decision maker is exercising judicial or administrative power is that there is often:
[an] overlap between those functions which sits at the 'core' of judicial power (and which are exclusively and essentially part of it) and those functions that may be regarded as 'purely' administrative.
That is because, on the one hand, there will be aspects of judicial power that will commonly be found in administrative powers. The ascertainment of facts, and the making of value judgments as to those facts, in the exercise of powers conferred by legislation, may be found in both judicial and administrative powers …
[41] GM v MS [66] ‑ [67].
Additional considerations such as in whom the power is reposed, for example a judicial officer or minister or public official, historical considerations and whether the repository of the power can enforce their own orders are factors to which regard is had when determining whether a power is judicial or administrative.
In this case, the person in whom the power is reposed is a warden who can act in both a judicial and an administrative capacity. That consideration therefore provides no assistance in determining whether the question of whether to consent to the lodgement of a successive caveat is made in the exercise of an administrative or judicial power.
Given the historical difficulty in identifying what was done in the warden's court by a warden acting judicially or by the warden acting administratively before the commencement of amendments made in the Mining Amendment Act, the question is not easily answered by reference to historical considerations.
While the parties have not referred me to any cases which deal with the question, in the 1992 case Bunnings Forest Products Pty Ltd v Reynolds Australian Alumina Ltd,[42] Warden Thobaven stated that decisions of the warden under s 122A(6) of the Mining Act were 'purely administrative acts by the warden'. The conclusion that the warden acted administratively under s 122A(6) of the Mining Act was not, however, the ratio of the case. While the decision of Warden Thobaven is not binding on me, and the case concerned the interpretation of an earlier iteration of the Mining Act, it does at least indicate that at that point in time there was a view that decisions under s 122A(6) (which was unchanged by the Mining Amendment Act) were administrative in character.
[42] Bunnings Forest Products Pty Ltd v Reynolds Australian Alumina Ltd (Unreported, WAWC, Vol 8, Folio 19, 12 February 1992) (4 – 5) (Thobaven SM).
In Sim v Nirvana Pty Ltd,[43] (also decided before the amendments to the Mining Act brought about by the Mining Amendment Act commenced) Warden Calder held that because s 122(3) of the Mining Act provides that unless the warden orders otherwise, no transfer or other instrument affecting the tenement the subject of a caveat may be registered while the caveat remains in force, the lodgement of a caveat and the refusal of the caveator to withdraw the caveat is a matter which may properly attract the jurisdiction of the warden pursuant to s 132 of the Mining Act. In making this finding, his Honour observed:[44]
It is, in my opinion a matter which goes to title and ownership of the subject tenement and is, in essence, from the point of view of either the tenement holder or a person who wishes to deal with the tenement holder and to register a transfer or other instrument affecting the subject tenement, an encumbrance on the title. I consider that the claim of Sim is an '… action, suit or proceeding cognizable by any court of civil jurisdiction …' arising in respect of title, ownership or possession of the tenement for the purposes of section 132(1)(b). What is claimed by Sim in the plaints now before me is, for purposes of section 132(1) of the [Mining] Act a right 'claimed in, under or in relation to ...' a mining tenement. The claim by the plaintiff is also a claim which, for purposes of section 132(1)(f) arises in respect of a transfer of the mining tenements. It is perhaps arguable that the power of the Warden to order the removal of a caveat as contemplated by section 122(1)(a) derives from section 122 itself and this is not a matter, for purposes of section 132 of the Act, which is a '… matter in respect of which jurisdiction is under any provision of this Act conferred upon either the Warden's Court or the Warden'. It may then be arguable that, because the Warden's Court only has power to make orders within its jurisdiction and thus only in respect of matters which are embraced by section 132 of the [Mining] Act, then the procedure contemplated by section 122 for an order being made by the Warden for the removal of a caveat is not a matter to be dealt with in the Warden's Court. In my opinion, however, even if it is the case that for purposes of section 132 of the [Mining] Act no 'jurisdiction' has been expressly conferred on the Warden's Court for the purposes of section 122 of the [Mining] Act, that, nevertheless, the claim by the plaintiff of entitlement to registration of transfer is a matter which arises in respect of title and ownership and possession for purposes of paragraph (b) of section 132(1) and which goes for the purposes of paragraph (f), to the transfer or right to transfer a tenement and that, as a consequence, the Warden is empowered pursuant to section 134(1) of the [Mining] Act to make the order sought in respect of the caveats. The reasons for that power being so vested in the Warden is that in order to determine that the plaintiff is entitled to register the transfer it is necessary for the warden to order that the caveat on each tenement be removed or that the transfers may be registered while the caveat remains in force (section 122(3)). Without the order for the removal of the caveat or an order permitting registration while the caveats remain in force any declaration or order by the Warden of entitlement to register the transfer would be pointless as section 122(3) of the Act would otherwise prevent registration.
[43] Sim v Nirvana Pty Ltd [2000] WAMW 1 (Sim).
[44] Sim (19 ‑ 21).
In that case, Warden Calder did not specifically refer to the power to consent to the lodgement of successive caveats as a power exercisable by the warden's court as part of the resolution of a dispute about rights within the warden's court's jurisdiction under s 132 of the Mining Act. It seems likely, given his reasoning, that his Honour would have considered that it was at least in circumstances where an application for consent was made in the course of the resolution of a dispute about existing rights as was the case in this matter.
It might be that making orders for the removal of a caveat under s 122E of the Mining Act involves the performance of a judicial function. That is arguably so because an order for the removal of a caveat is conceivably the remedy or relief that follows from the determination of rights of the parties, including whether the caveator has the right to maintain an existing caveat. It is not necessary for me to determine that matter because I am concerned here with the exercise of the power conferred under s 122A(6) of the Mining Act.
Part VII of the Mining Regulations 1981 (WA) (Mining Regulations) deals with proceedings in the warden's court. Regulation 121(1), which is part of pt VII of the Mining Regulations provides that that all civil applications to the warden's court are to be commenced by plaint. Part VIII of the Mining Regulations deals with proceedings before the warden under pt IV of the Mining Act. Part VIII of the Mining Regulations is therefore concerned with applications for forfeiture of tenements and objections which are made under pt IV of the Mining Act. Caveats are dealt with in pt VI of the Mining Act. Therefore, the Mining Regulations do not identify the application for consent to lodge successive caveats under s 122A(6) of the Mining Act as being either applications to be made to the warden in his administrative capacity.
In my view, the absence of applications for consent to lodge a successive caveat from the provisions of the regulations which deal with applications to the warden, as opposed to the warden's court, does not compel the conclusion that such applications are to be dealt with in the warden's court. It does not follow that because there is no administrative procedure prescribed in the regulations the matter must come within the judicial functions of the warden. Regulations do not determine the interpretation of the Act under which they are made.[45]
[45] Plaintiff M47/2012 v Director-General of Security[2012] HCA 46 [56] (French CJ).
The Appellant submits that the Respondent did not make an application that involved a recommendation to the Minister (which it says would involve the performance of an administrative function) nor did it make an application to which the laws of evidence did not relate.[46] It seems that it is implied that it therefore follows that the decision made by Warden Maughan is judicial in character.
[46] As to the importance of which St Barbara Ltd v Minister for Energy, Resources, Industry and Enterprise [2008] WASCA 248 [27] ‑ [29] (Steytler P).
In my view, the fact that the Respondent sought the consent of the warden to the lodgement of the successive caveat in the proceedings which were commenced by the Appellant's Plaint is not determinative of the issue. Neither is the fact that the outcome was ordered in the Warden's reasons for decision in relation to the Plaint.
Nor, in my view is the decision one which can be made judicially if, as it was in this case, it is sought during proceedings in which the Warden determined a plaint and administratively on other occasions, such as where the approval is sought unrelated to any other proceeding. It is not a chameleon which can change its character in that way.
The character of the function is to be ascertained by determining whether the Warden was exercising administrative or judicial power in giving consent to the lodgement of the successive caveat.
The Appellant also submits that the Respondent made a counterclaim in the proceedings before the warden's court for relief based on pleaded equitable principles, which involved a four-day contested hearing and that, in that context, the reasons and order 3 involved Warden Maughan exercising his powers pursuant to s 132 of the Mining Act to 'decide upon competing private rights as between parties to the litigation' such that the approval to lodge the successive caveat was an exercise of the Warden's judicial function. The Appellant submits that it is the exercise of the Warden's power to determine the competing private rights from which it appeals and that the appeal is within the ambit of s 147(1) of the Mining Act. That submission essentially follows the same reasoning as that of Warden Calder in Sim.
While administrative functions of a warden frequently involve the making of a recommendation to the Minister, in my view ascertaining whether a warden is exercising administrative or judicial power in this case is not determined by whether the warden is making a decision or a recommendation to the Minister. For example, under reg 166 of the Mining Regulations, which concerns proceeding before the warden acting administratively, in contrast to those in pt VII of the Mining Regulations, which concern proceedings in the warden's court, a warden may review a decision of a mining registrar in relation to an assessment of costs upon application by a party who is dissatisfied by the mining registrar's decision. In doing so, the warden makes an administrative decision but does not make any recommendation to the Minister.
It is not necessary for the warden to conclusively determine existing rights in order to consent to the lodging of a successive caveat under s 122A(6) of the Mining Act. The warden could consent to the lodging of a successive caveat under that section where the warden is satisfied that there is an arguable case as to the existence of a proprietary interests which should be protected by the caveat until the matter comes to be finally determined.
In my view, the decision to consent to the lodgement of a successive caveat under s 122A(6) is properly to be regarded as the determination of future rights rather than the determination of existing rights of parties who are in dispute as to those rights.
In my view, the combined force of the fact that:
1.the expression 'warden', rather than 'warden's court' is used in s 122A(6) of the Mining Act;
2.the decision to consent to the lodgement of a successive caveat is not the determination of a dispute as to existing rights;
3.the decision to consent to the lodgement of a successive caveat is not a matter which is referred to as being within the warden's court's jurisdiction under s 132 of the Mining Act; and
4.the power to consent to the lodgement of a successive caveat is not a power referred to in s 134 of the Mining Act as a power conferred on the warden's court,
leads to the conclusion that the preferable view is that that the consent to lodging a successive caveat is a decision of the warden acting administratively.
Accordingly, it follows that I find that the Warden's decision to consent to the lodgement of the successive caveat by the Respondent is not amenable to appeal and can only be challenged through judicial review proceedings.
Conclusion
I have found that the decision to permit the lodgement of a successive caveat was an administrative decision of the Warden and not, therefore, a decision amenable to appeal. I have also found that it is not appropriate to simply treat the appeal as an application for judicial review.
I have explained that, as to the other matters about which the Appellant seeks to appeal, no orders exist which could be the subject of an appeal and I have come to the preliminary view therefore that the appeal is incompetent at this stage.
For the reasons set out above, I have formed the view that it is presently inappropriate to say any more about the merits of the ground of appeal even though the arguments made by the parties are substantially those that would be made in a judicial review and/or when a competent appeal is brought.
It is somewhat frustrating to me, and no doubt to the parties in light of the approach that I have decided to take to these issues, that the matter proceeded as it did to a full hearing of the submissions on the appeal in circumstances where the question of the lack of jurisdiction was raised in the Respondent's written submissions. The parties could have resolved a way forward, perhaps by the deferral of the substantive hearing while a judicial review application was filed, programmed and, if permitted to proceed, heard together with the appeal given the overlap of the issues which are to be raised in each type of action or perhaps, by the discontinuing of the appeal and the making of a judicial review application.
The parties are to confer about the orders to be made as a consequence of my decision that the consent to lodge a successive caveat was an administrative decision. After conferral, the parties are to lodge an agreed minute of proposed orders, or in the absence of agreement, their own minutes, by 19 April 2024.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MS
Associate to the Hon Justice Glancy
28 MARCH 2024
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