Bond v Maughan - [2018] WASC 162

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BOND -v- MAUGHAN [2018] WASC 162
CORAM:   ARCHER J
HEARD:   8 MARCH 2018
DELIVERED          :   31 MAY 2018
FILE NO/S:   CIV 2163 of 2017
BETWEEN:   STUART ROBERT LEONARD BOND
WARD DOUGLAS MICHAEL BOND
Applicants
AND
THE HON ANDREW MAUGHAN
First Respondent
LIGHTRANGE PTY LTD
Second Respondent

Catchwords:

Judicial review - Warden's decision to recommend forfeiture of a mining lease - Turns on its own facts

Legislation:

Mining Act 1978 (WA), s 46, s 50, s 96, s 100(2)
Mining Regulations 1981 (WA), reg 31, reg 96C(2a)
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B

Result:

Application to amend the grounds of review dismissed and application for review dismissed

Category: B

Representation:

Counsel:

Applicants	:	Ms T L Jonker
First Respondent	:	No appearance
Second Respondent	:	Mr D H Solomon

Solicitors:

Applicants	:	Lawton Lawyers
First Respondent	:	State Solicitor's Office
Second Respondent	:	Solomon Brothers

Case(s) referred to in decision(s):

City of Kwinana v Lamont [2014] WASCA 112
Commercial Properties v Italo Nominees Pty Ltd (Unreported, WASCA, Library No 7427, 16 December 1988)
Craig v Spargos Exploration NL (Unreported, Kalgoorlie Warden's Court, 22 December 1986)
Duro Felguera Australia Pty Ltd v Samsung C&T Corporation [2018] WASCA 28
Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126
Lightrange Pty Ltd v Stewart Robert Leonard Bond & Ward Douglas Michael Bond [2017] WAMW 12
Nova Resources NL v French (1995) 12 WAR 50
Pacminex (Operations) Pty Ltd v Australian (Nephrite) Jade Mines Pty Ltd (1974) 7 SASR 401
Prisoners Review Board v Freeman [2010] WASCA 166
Re Refugee Review Tribunal Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82
Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2018] WASCA 27
Samsung C&T Corporation v Loots [2016] WASC 330
Strahan v Brennan [2014] WASC 190
Strother v Tavener [2016] WASC 85

ARCHER J:

Background

On 9 March 2016, Lightrange Pty Ltd applied for forfeiture of a mining lease held by Mr Stuart Bond and Mr Ward Bond. Lightrange alleged the Bonds failed to comply with the expenditure conditions of the lease for the year ending 10 November 2015.
At the hearing before the mining warden, the Bonds conceded that the expenditure conditions for the relevant year had not been met.
It is a condition of the mining lease that the Bonds spend a minimum of $23,500 per year. The warden found that the Bonds spent only $14,362.61 in the relevant year, being about 60% of the minimum requirement.
The warden recommended to the Minister that the mining lease be forfeited.[1]
[1] Lightrange Pty Ltd v Stewart Robert Leonard Bond and Ward Douglas Michael Bond [2017] WAMW 12 (Lightrange).
In these proceedings, the Bonds apply for judicial review of that recommendation and for a writ of certiorari.
As will be seen, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bond v Maughan

Details

AGLC: Bond v Maughan [2018] WASC 162
Case: [2018] WASC 162
Decision Date: 31 MAY 2018

CaseChat Overview and Summary

In Bond v Maughan, the matter before the court involved a challenge to a decision made by a Warden under the Mining Act 1978 (WA) concerning the forfeiture of a mining lease. The Warden had recommended the forfeiture of the lease based on a failure to comply with certain conditions. The decision was brought into question by the applicant, Bond, who sought judicial review of the Warden's decision. The case was heard and determined by the Supreme Court of Western Australia.

The primary legal issue before the court was whether the Warden had applied the correct legal test when considering whether the non-compliance with the mining lease conditions was of sufficient gravity to justify forfeiture. Specifically, the court needed to determine if the Warden had appropriately assessed the totality of the evidence and circumstances to decide if the non-compliance warranted the severe remedy of forfeiture. Another issue was whether the Warden had correctly interpreted the statutory provisions concerning the forfeiture of a mining lease.

The court found that the Warden had applied the wrong legal test when considering the gravity of the non-compliance. The Warden had used a test that was not aligned with the statutory requirements. The court noted that the statutory language did not explicitly include the phrase 'in the circumstances of the case', but a proper exercise of the power necessarily required the Warden to consider the case's circumstances. The court emphasised that the Warden's attention must be directed to factors beyond the mere material non-compliance. The Warden's failure to apply the correct test meant that the totality of the evidence was not properly assessed to determine if the non-compliance was of sufficient gravity to justify forfeiture. Consequently, the Warden's decision was flawed, and the matter was remitted back to the Warden for reconsideration.

The court ordered that the Warden's decision be quashed and that the matter be remitted back to the Warden for reconsideration in accordance with the correct legal test. The Warden was directed to reassess the evidence and circumstances to determine if the non-compliance with the mining lease conditions was of sufficient gravity to justify forfeiture.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Even though s 96(2) does not use the words 'in the circumstances of the case', a proper exercise of the power would inevitably require the warden to consider the circumstances of the case in deciding if he or she was satisfied as required by that subsection. Further, the requirement in s 96(2) that 'the matter' is of sufficient gravity to justify forfeiture directs the warden's attention to circumstances beyond simply the material non‑compliance. This was the view taken in Pacminex (Operations) Pty Ltd v Australian (Nephrite) Jade Mines Pty Ltd in relation to a South Australian provision that was relevantly identical to s 96(2).[28] In Craig v Spargos Exploration NL,[29] Warden Reynolds referred to Pacminex and concluded that the words 'in the circumstances of the case' in s 98(5) were used for the same reason as the word 'matter' was used in the South Australian legislation.[28] Pacminex (Operations) Pty Ltd v Australian (Nephrite) Jade Mines Pty Ltd (1974) 7 SASR 401, 412 (and see 407, where the equivalent provision is set out).[29] Craig v Spargos Exploration NL (Unreported, Kalgoorlie Warden's Court, 22 December 1986) 18 – 19. In addition, while s 98(5) does not state that there must have been non‑compliance 'in a material respect', like s 96(2) does, it is implicit that the warden could not recommend forfeiture under s 98(5) unless the non‑compliance was material. The warden could not be satisfied that the non‑compliance was of 'sufficient gravity to justify forfeiture' if the non‑compliance was immaterial. Further, the slightly different structure of the two sections is because the power under s 98(5) only arises if the warden has found, under s 98(4A), that the lease holder has failed to comply with requirements.[30][30] For completeness, I also note that s 96 deals with failure to comply with various conditions, whereas s 98 deals only with a failure to comply with expenditure conditions. However, I do not consider that this difference is relevant to the different structure of s 98(5) compared to s 96(2). In my view, the plain meanings of the pre‑conditions to the exercise of the powers in s 96(2) and s 98(5) are the same. Neither party submitted that the tests were the same.[31] No doubt for that reason, neither party referred to any extrinsic material that might have assisted in the construction of the sections. I would be reluctant to reach a concluded view without the benefit of full argument from the parties. However, as I have found that the warden did not apply s 96, it is unnecessary to reach a concluded view on this issue. Accordingly, the view that I have expressed is only a tentative one.[31] See, for example, counsel for Lightrange at ts 80. Ground 2 alleges that the warden, as a consequence of applying the wrong test, failed to assess the totality of the evidence to consider whether (in accordance with s 98(5)) the non‑compliance, in the circumstances of the case, was of sufficient gravity to justify forfeiture. For convenience, I will refer to this as the 'gravity requirement'.