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

1. 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.

2. At the hearing before the mining warden, the Bonds conceded that the expenditure conditions for the relevant year had not been met.

3. 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.

4. 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).

5. In these proceedings, the Bonds apply for judicial review of that recommendation and for a writ of certiorari.

6. As will be seen, the Bonds sought to amend the grounds of their application.  However, the application as it stands alleges jurisdictional errors that can be summarised as follows:

   1.the warden identified the wrong section of the Mining Act 1978 (WA) as the source of his power, and so applied the wrong test;

   2.as a consequence of identifying and applying the wrong section, the warden failed to assess the totality of the evidence to consider whether the non‑compliance, in the circumstances of the case, was of sufficient gravity to justify forfeiture;

   3.the warden incorrectly held that the Bonds had the burden of proving there was a scientific basis for dowsing as a form of exploration before expenditure on dowsing could be taken into account; and

   4.the warden incorrectly excluded the 2015 rent from the expenditure calculation because he misconstrued reg 96C of the Mining Regulations 1981 (WA).

7. The proposed amendment seeks, in effect, to add a new ground that the warden failed to assess the totality of the evidence in considering whether there was non‑compliance 'as regards' expenditure on fuel and work done by the father of Stuart and Ward Bond.  The Bonds' father, Mr Leonard Bond, was not a holder of the lease.

8. The warden gave notice that he will abide the decision of the court.

9. The primary issues that arise for determination are:

   1.Did the warden identify the wrong section of the Act as the source of his power and apply the wrong test?

   2.If so, did the warden, as a result of that error, fail to assess the totality of the evidence to consider whether the non‑compliance, in the circumstances of the case, was of sufficient gravity to justify forfeiture?

   3.Did the warden find that the Bonds had the burden of proving there was a scientific basis for dowsing as a form of exploration before expenditure on dowsing could be taken into account?

   4.Did the warden incorrectly exclude the 2015 rent from the expenditure calculation because he misconstrued reg 96C?

   a.If not, did the warden misunderstand when the 2015 rent was incurred?  If so, was this a jurisdictional error?

   5.Should leave to amend ground 2 be granted?  Did the warden make the error alleged in the amended version of ground 2?

10. As will be seen, I refuse leave to amend the application and dismiss the application.  However, before considering the issues, it is convenient to set out the framework in which the issues will be determined.

Legislative framework

1. Under the Mining Act, various mining tenements may be granted, including prospecting licences and mining leases.  Both prospecting licences and mining leases are subject to expenditure conditions.  If the expenditure conditions are not met, an application may be made for forfeiture of the lease.

Mining leases

Expenditure conditions

1. The expenditure conditions for a mining lease are prescribed in reg 31 of the Mining Regulations.  Regulation 31 relevantly provides:

   31.Expenditure condition

   (1)The holder of a mining lease shall expend or cause to be expended in mining on or in connection with mining on the lease not less than $100 for each hectare or part thereof of the area of the lease with a minimum of $10 000 during each year of the term of the lease; but if the holder is directly engaged part‑time or full‑time in mining on the lease itself then an amount equivalent to the remuneration that the holder would be entitled to if engaged, under a contractual arrangement, in similar mining activity elsewhere in the district shall be deemed to have been expended:

   Provided that where the area of a mining lease does not exceed 5 ha the minimum annual expenditure shall be $5 000.

   (1a)Expenditure incurred under subregulation (1) during the month in which the anniversary date of the commencement of the term of the lease occurs may be treated by the holder as expenditure incurred in either the year immediately preceding that anniversary date or the year starting from such date.

   (1b)The specific provisions in regulation 96C, relating to allowable expenditure and non‑allowable expenditure for the purposes of calculating expenditure under a lease, apply when calculating expenditure under this regulation.

2. Regulation 96C(2a), referred to in reg 31(1b), relevantly allows annual tenement rent to be used in the calculation.

Forfeiture of a mining lease for failing to comply with expenditure conditions

1. Section 98 of the Act allows applications to be made for forfeiture of mining leases where expenditure conditions have not been met.  It relevantly provides:

   98.Application for forfeiture on other grounds

   (1)Where the requirements of this Act are not being complied with in respect of the expenditure conditions applicable to an exploration licence or a mining lease, any person may apply for the forfeiture of such licence or lease as provided in this section.

   …

   (3)The application for forfeiture shall be heard by the warden.

   (4A)When the warden finds that the holder of an exploration licence or lessee of the mining lease has failed to comply with such requirements as are mentioned in subsection (1), the warden may recommend the forfeiture of such licence or lease, or impose a penalty not exceeding $10 000 as an alternative to the forfeiture or dismiss the application.

   …

   (5)A recommendation shall not be made under subsection (4A) unless the warden is satisfied that the non‑compliance with such requirements is, in the circumstances of the case, of sufficient gravity to justify the forfeiture.

   (6)As soon as practicable after the hearing of the application the warden shall forward to the Minister the notes of evidence, with a report and the warden's recommendation, if any, on the application and the Minister may, before acting on the recommendation, require the warden to take such further evidence or rehear the application as the Minister directs.

   (7)No exploration licence or mining lease shall be forfeited for non‑compliance by the holder or lessee thereof with the expenditure conditions, if the holder or lessee satisfies the Minister that the non‑compliance therewith has been occasioned by a strike.

Prospecting licences

1. As will be seen, grounds 1 and 2 of the application refer to s 96 of the Act. Section 96 of the Act concerns applications for forfeiture of prospecting licences and miscellaneous licences on various grounds, including that expenditure conditions have not been met. For convenience, the relevant parts of s 96 are set out here, as follows:

   96.Forfeiture of certain mining tenements

   (1)The warden may upon the application of -

   (a)the Minister or any mining registrar or other officer of the Department authorised by the Minister in writing in that behalf; or

   (b)any person, made in the prescribed form and in the prescribed manner, make an order for the forfeiture of any prospecting licence or a miscellaneous licence granted or acquired under this Act or by virtue of the repealed Act.

   …

   (2)An order for forfeiture may be made in relation to a mining tenement to which subsection (1) applies if -

   …

   (b)any term or condition to which the mining tenement is subject, including any condition referred to in section 46 or section 50, is not complied with; or

   …

   but an order shall not be made under subsection (1) unless the warden is satisfied that the requirements of this Act in relation to such mining tenement have not been complied with in a material respect and that the matter is of sufficient gravity to justify the forfeiture of the mining tenement.

   …

   (3)A warden, as he thinks fit in the circumstances of the case, as an alternative to making an order under this section for forfeiture of such mining tenement may -

   (a)impose on the holder of the mining tenement -

   (i)in a case where expenditure conditions have not been complied with, a penalty not exceeding $10 000;

   (ii)…

   or

   (b)award the whole or any part of the amount of any such penalty to the applicant if the applicant is not the Minister, a mining registrar or an officer of the Department authorised in writing by him; or

   (c)impose no penalty on the holder.

   …

   (7)No prospecting licence shall be forfeited for non‑compliance by the holder thereof with the expenditure conditions, if the holder satisfies the warden that the non‑compliance therewith has been occasioned by a strike.

2. As can be seen, an order for forfeiture may be made under s 96(2)(b) where there has been non‑compliance with conditions referred to in s 46 or s 50. Section 50 refers to expenditure conditions.

Policy of the Act

1. In Nova Resources NL v French,[2] the Full Court reviewed a warden's decisions to order the forfeiture of a prospecting licence and to recommend the forfeiture of a mining lease.  In relation to the policy of the Act, the Court said:[3]

   The primary object, so far as it impacts on this case, is to ensure as far as practicable that land which has either known potential for mining or is worthy of exploration will be made available for mining or exploration.  It is made available subject to reasonably stringent conditions and if these, including expenditure conditions, show that the purposes of the grant are not being advanced, then the Act and regulations make provision for others who have an interest in those purposes on that land to apply for forfeiture so they may exploit the area.  There is power for a tenement holder to seek exemption from complying with certain conditions for cause, and one assumes that it is not only for record purposes that a Form 5 must be filed each year.

   [2] Nova Resources NL v French (1995) 12 WAR 50.

   [3] Nova Resources NL v French (57 ‑ 58) (Rowland J, with whom the other judges agreed).

2. In Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum,[4] the Court of Appeal noted that the primary object identified in Nova Resources was not the only object of the Act.  The court said that other objects or purposes identified by the courts include (footnotes omitted):[5]

   1.identifying circumstances in which a tenement holder will be allowed to hold a mining tenement without mining or giving it up for others who may wish to actively mine the land.

   2.protecting tenement holders who have defaulted in compliance with the Act in some minor respect, or because of some circumstances beyond the control of the tenement holder, against loss of the tenement.

   3.providing that, in general, the holder of a mining tenement should carry out the relevant mining activity on the tenement.

   [4] Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 (Forrest) [96].

   [5] Forrest [96].

Judicial review - legal principles

1. Pritchard J helpfully summarised the relevant legal principles in Strother v Tavener (citations omitted):[6]

   A warden who hears a forfeiture application does so in the exercise of administrative power conferred by the Act, rather than in the exercise of any judicial power.

   …

   In an application for a writ of certiorari, the court may quash a decision made by a decision maker in the exercise of a statutory power if there is an error of law on the face of the record, or if it is established that the decision maker made a jurisdictional error.  In the case of a decision made in the exercise of a statutory power, a jurisdictional error will exist if the decision which was made fell outside the parameters of the decision making power granted by the statute. An error of law in the construction of the statutory provision which is the source of the decision maker's power may give rise to a jurisdictional error if that construction causes the decision maker to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or to make an erroneous finding or to reach a mistaken conclusion.

   [6] Strother v Tavener [2016] WASC 85 [34], [44].

2. In Re Refugee Review Tribunal; Ex parte Aala,[7] Hayne J explained:

   There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do.  By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction.  (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.)  The former kind of error concerns departures from limits upon the exercise of power.  The latter does not.

   [7] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163]. This statement was applied in Forrest [86] ‑ [88].

1. In Forrest,[8] the Court of Appeal summarised the approach to be taken when the purported exercise of a statutory power is sought to be impugned for jurisdictional error.  The court said (citations omitted):

   [W]here action taken in the purported exercise of a statutory power is sought to be impugned for jurisdictional error, the only question will be whether what was done was authorised by the empowering legislation.  The answer to that question will turn on the identification of the limits of the authority conferred by the relevant statutory provision, and an analysis of the facts to ascertain whether those limits have been exceeded.  This may also be described as identifying the conditions for the valid exercise of the statutory power.

   The identification of the conditions for the valid exercise of the relevant statutory power is entirely a question of statutory construction.  That construction of the relevant statute is 'reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy'.

   Those rules require primary attention to be directed to the text of the relevant provisions.  There must be regard to the language of the statutory instrument viewed as a whole, considered in its context.  An important part of that context will be the purpose of the legislation, ascertained from what the legislation says (rather than any assumption about the desired or desirable reach or operation of the relevant provisions).  Once the purpose of the legislation is established, a construction that would promote that purpose shall be preferred to a construction that would not promote the relevant purpose.

   …

   An assertion of jurisdictional error in relation to the exercise of a statutory power therefore involves a contention that the decision‑maker has purportedly exercised his or her power otherwise than in accordance with the conditions for the valid exercise of the relevant power.  The identification of those conditions which mark the limits of the decision‑maker's authority to decide is purely a matter of statutory construction.  Those limits are to be identified by the application of common law and statutory rules of construction to the language which Parliament has chosen, understood in the context in which it appears.

Evaluating a magistrate's reasons

[8] Forrest [88] ‑ [92].

1. When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates.  As was pointed out by Martin CJ in Strahan v Brennan,[9] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day.  Accordingly:[10]

   [I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error.  Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated.  That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.

   [9] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].

   [10] Strahan v Brennan [90].

2. In my view, this applies to magistrates when acting as wardens.[11]

   [11] This was conceded by counsel for the Bonds - see ts 70 ‑ 71.

Grounds of review

1. Immediately prior to the hearing, the Bonds' grounds of review were set out in an amended application for judicial review filed 5 October 2017 (October application).  The October application alleged the warden made five errors that were jurisdictional errors and/or errors on the face of the record.  The Bonds ultimately abandoned each allegation of error on the face of the record and abandoned ground 3 altogether.  This left four grounds of review in the October application, each alleging jurisdictional error.  In these reasons, I will refer to the October application with those matters abandoned as the Application.

2. For ease of reference to the submissions and the transcript, I will refer to the last of the two remaining grounds by their original numbers.  The grounds are:

   1.The [warden] made a jurisdictional error when he erroneously identified s 96 of Act as the source of his power and functions and, applying the test in s 96, then purported to make a forfeiture recommendation. Section 98 is the source of his power and functions, and a recommendation 'as provided in' s 98 is a precondition to the Minster's power under s 99 of the Act to determine a forfeiture application. As such, the warden, by misapprehending the nature and limits of his functions and powers, acted outside the limits of those functions and powers, and, also, identified the wrong issue, asked the wrong question, ignored relevant considerations and/or took into account irrelevant considerations.

   2.Further, and in the alternative, the warden made a jurisdictional error when, as a consequence of erroneously identifying and applying s 96 of the Act, he 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, and, consequently, identified the wrong issue, asked the wrong question, ignored relevant considerations and/or took into account irrelevant considerations.

   4.Further, and in the alternative, the warden made a jurisdictional error by misconstruing the Act and misconceiving his function in erroneously holding that, beyond proof of work and expenditure on dowsing, the Bonds had to satisfy him of a scientific basis for dowsing as a 'form of exploration', and, consequently, identified the wrong issue, asked the wrong question, ignored relevant considerations and/or took into account irrelevant considerations.

   5.Further, and in the alternative, the warden made a jurisdictional error by misconstruing the Act and the Regulations in erroneously holding that under Reg 96C 'only the particular year's annual rent may be included in the particular year's expenditure calculation', misapprehending when the 2015 rent was incurred and excluding it from the expenditure calculation, and, consequently, ignored relevant considerations (and also identified the wrong issue, asked the wrong question and/or took into account irrelevant considerations).

The warden's reasons

1. The hearing before the warden was held on 13 ‑ 14 March 2017.  On 19 May 2017, the warden handed down his decision.[12]

   [12] Lightrange.

2. The warden noted at [13] of his reasons that the Bonds conceded the expenditure condition was not satisfied for the relevant year.

3. In the following paragraphs of his reasons, the warden analysed the evidence of expenditure.

4. The warden rejected some of the claimed expenditure due to inadequate evidence,[13] or because the expenditure was not connected to mining.[14]  The warden rejected work done by Leonard Bond on the basis that he was not paid for his work.[15]  As noted earlier, Leonard Bond was the father of the tenement holders but was not himself a holder of the lease.  The warden also rejected part of the claim for annual rent.[16]

   [13] See, for example, Lightrange [25].

   [14] See, for example, Lightrange [33].

   [15] Lightrange [27] ‑ [29].

   [16] This is further discussed in relation to ground 5.

5. The warden accepted that time spent by Stuart and Ward Bond in travelling to and from the tenement in March and October 2015, and the days they spent working there, could be treated as expenditure.  He allowed $3,000 for this travel and work time.[17]  The warden also allowed $500 in relation to fuel and oil costs for those trips.[18]

   [17] Lightrange [26].

   [18] Lightrange [32].

6. The warden then concluded that the total expenditure proved was $14,362.61.[19]

   [19] Lightrange [43].

7. The warden found that, in completing the relevant forms, Stuart Bond was not intentionally acting dishonestly; rather, he was simply ignorant as to the law.  However, the warden noted that tenement holders are required to know and comply with their obligations.  For that reason, the warden found that Stuart Bond's ignorance weighed against the Bonds in considering the gravity of their non‑compliance.[20]

   [20] Lightrange [45].

8. The warden then set out three matters relied on by the Bonds in relation to gravity:[21]

   [46]As to issues of gravity the Respondents submit:

   (i)they are genuine 'would be' explorers and miners who had held the ground for some time and have progressed it from being a prospecting licence to a mining lease.  To do this they had to satisfy the Minister for Mines that the granting of the mining lease was justified;

   (ii)that the forfeiture action should be seen as one whereby a neighbouring tenement holder who wishes to acquire the ground, having failed by negotiations, now seeks to bully the Respondents into relinquishing it;

   (iii)that whilst the work carried out by Leonard Bond is not claimable per se it is an indication that the tenement holders had been 'working the tenement' and have not 'fallen asleep on their rights'.

   The work done by Mr Leonard Bond largely comprised of dousing and I make no conclusive finding as to whether there is any scientific basis for that form of exploration, there being a lack of evidence.  It is however, for the Respondents to satisfy me that it is a matter to be taken into account beyond merely stating 'we believe in it'.  They have not done so to the required standard.

   [21] Lightrange [46].

9. The warden concluded:[22]

   [47]In my view in light of:

   i.the significant under expenditure in the relevant financial year;

   ii.the doubt cast on expenditure in previous years and the probable inaccuracies in the previous Form 5s filed for the tenement;

   iii.the well‑known 'jealous neighbour principle', [such that] little weight should be attributed to the submission made at paragraph 46(ii);

   [t]he Applicant has satisfied me that a prima face case for forfeiture is made out.  I am not satisfied on the basis of the evidence adduced by the Respondents that the non‑compliance was not of sufficient gravity to warrant a forfeiture.

   [22] Lightrange [47].

10. Accordingly, the warden recommended to the Minister that the mining lease held by the Bonds, 51/847, be forfeited.

Ground 1 - s 96

1. Ground 1 alleges the warden erroneously identified s 96 of the Act as the source of his power and functions, instead of s 98. As noted earlier, s 96 concerns applications for the forfeiture of prospecting and miscellaneous licences. Section 98 is the relevant provision for applications for the forfeiture of mining leases, as this lease was.

2. Lightrange submit that the warden did not make this mistake. Lightrange submit that the warden acted under s 98, the correct provision, and that the warden's references to s 96 were 'slips'. For the reasons that follow, I accept this submission.

3. The Bonds note that the warden did not use the expression 'in all of the circumstances'. This expression is contained in s 98 but not in s 96. In my view, this is a neutral factor. Whether the warden was applying the test under s 96 or s 98, the warden would be required to consider all the relevant circumstances. It is apparent from the warden's reasons that the warden did consider all the circumstances that he considered relevant.

4. The Bonds also point out that the warden referred to s 96 in his reasons. First, the warden reproduced s 96 in [10] of his reasons (and did not reproduce s 98). Then, in the following paragraph, the warden said that '[p]ursuant to s 96(2)(b), non‑compliance with expenditure obligations may lead to forfeiture'.

5. The warden also extracted a passage from the decision in Commercial Properties v Italo Nominees Pty Ltd[23] without mentioning that it related to s 96. However, I note that the passage extracted is not itself specifically directed to s 96, but rather discusses forfeiture applications for failure to comply with expenditure conditions generally.[24]

   [23] Commercial Properties v Italo Nominees Pty Ltd (Unreported, WASCA, Library No 7427, 16 December 1988).

   [24] For completeness, I note that the warden said in [5] of his reasons that the forfeiture application had been made 'under s 96(1)(3) [sic] or 98'. The Bonds did not rely on this reference. No doubt this was because the application was made on what appears to be a standard form which is headed 'Applications for Forfeiture under s 96(1)(b) or s98' (see Affidavit of Garry Hamilton Lawton sworn 15 September 2017, page 4). Accordingly, the warden's reference to s 96 in the context of the application is irrelevant.

6. Despite these references, there are multiple indicators that the warden was actually applying s 98.

7. First, the warden made a recommendation to the Minister that the tenement be forfeited, which is consistent with s 98 and inconsistent with s 96.

8. Second, the warden clearly understood that the matter related to a mining lease, rather than a prospecting licence or a miscellaneous licence.  He referred to the Bonds' tenement as a mining lease.[25] He also referred to the expenditure conditions imposed by s 82 of the Act and reg 31 of the Regulations, each of which solely concern mining leases, not licences.

   [25] See, for example, Lightrange [1], [3], and, in distinction to a prospecting licence, [46(i)].

9. Third, the warden did not use any of the language that is unique to s 96, such as 'in a material respect'. The Bonds submit that this is not an indicator that the warden was applying s 98 because they had conceded non‑compliance. The Bonds submit that, therefore, the warden did not have to consider if the non‑compliance was 'in a material respect'. I do not accept this submission. The entire focus of the warden's reasons was evaluating the extent of the non‑compliance and whether it was of sufficient gravity to justify forfeiture.

10. Fourth, the parties' submissions to the warden referred only to s 98.

11. Fifth, in evaluating whether the references to s 96 were 'slips', it is appropriate to take into account the nature of the work of a warden. In particular, some infelicity of language is to be expected.

12. It is for the Bonds to establish that the warden applied s 96. I am not satisfied that he did apply s 96. Accordingly, I dismiss ground 1.

Is there a material difference in the tests?

1. There is potentially an additional reason to dismiss ground 1. If the test in s 98(5) is in fact the same as the test in s 96(2), the warden's decision would not be invalidated even if he did apply s 96.[26]

   [26] Prisoners Review Board v Freeman [2010] WASCA 166 [134] ‑ [138].

2. In City of Kwinana v Lamont,[27] the Court of Appeal said (citations omitted):

   The … starting point and ending point for the task of statutory construction is the statutory text.  The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text.  The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have.  Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision.

   [27] City of Kwinana v Lamont [2014] WASCA 112 [47].

3. Both s 96(2) and s 98(5) prohibit the warden from exercising the relevant power unless the warden is satisfied of something. Both require the warden to be satisfied that something is of sufficient gravity to justify forfeiture.

4. The difference lies in the words used to describe that something. Section 96(2) requires the warden to be satisfied 'that the requirements of this Act in relation to such mining tenement have not been complied with in a material respect and that the matter is of sufficient gravity'. Section 98(5) requires the warden to be satisfied 'that the non‑compliance with such requirements is, in the circumstances of the case, of sufficient gravity to justify the forfeiture'.

5. Ordinarily, the fact that different words are used would indicate that the tests are different.  However, I doubt they are.

6. 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.

7. 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.

8. 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).

9. 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.

10. 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 - 'in the circumstances of the case'

1. 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'.

2. As I have found that the warden did not apply the wrong test, this ground falls away.

3. In any event, I am not satisfied that the warden failed to assess the totality of the evidence, for the following reasons.

4. The Bonds submit that, in considering the gravity requirement, the warden considered only the expenditure, and not the broader circumstances of the case.  The Bonds submit that, as a result, the warden failed to consider relevant information.[32]

   [32] Outline of Submissions filed 8 December 2017 (Bonds' Review Submissions) [62] ‑ [65].

5. For this error to be shown, the Bonds need to identify what evidence or circumstance the warden should have taken into account in considering the gravity requirement, but failed to take into account.  In the hearing before me, the Bonds accepted that the warden was not required to take into account anything that had not been raised by the Bonds.[33]

   [33] ts 72.

6. The Bonds' primary submission to the warden was that the gravity requirement was not met because the work done on the tenement would, if assessed on monetary terms, equate to the shortfall in expenditure.[34]  The Bonds referred to the work done by the tenement holders and Leonard Bond in the March and October trips, the other trips of Leonard Bond, and the fuel costs for those trips.  Most of the Bonds' written submissions to the warden sought to establish this point.

   [34] Respondent's Outline of Submissions dated 17 February 2017 [16].

7. The final five paragraphs of the Bonds' written submissions to the warden were as follows:

   [38]The Respondents are genuine, would be explorers and miners.  They have held the ground for some time and have progressed it from a prospecting licence to a mining lease.  To do this, they had to satisfy to the Minister for Mines that the grant of a mining lease was justified.

   [39]This action should be seen as one whereby a neighbouring tenement holder who wishes to acquire their ground, having failed in negotiations, now seeks to bully the Respondents into relinquishing it.

   [40]Evidence of the activities of Lightrange Pty Ltd and/or its history on other tenements or adjoining ground is irrelevant to that enquiry, as is the history of work and expenditure on M51/847 in prior years.

   [41]Likewise, evidence of expenditure by Lightrange Pty Ltd is totally irrelevant.  Proceedings for Forfeiture are not an 'entrepreneurial battlefield'.

   [42]In all of the circumstances of the case, any non‑compliance is not of sufficient gravity to justify forfeiture or a fine, as the equivalent of work in excess of the required minimum expenditure has been made.

8. Accordingly, the Bonds' submissions to the warden on the gravity requirement were limited to the extent of the non‑compliance (including the time and fuel costs for the trips which they argued could be equated to expenditure) and the matters set out in [38] and [39] of their submissions.

9. The warden's reasons were set out earlier.  The warden considered the extent of the non‑compliance (after taking into account the travel time and fuel costs for the trips and time spent at the tenement), but he also considered other circumstances.

10. First, the warden noted that, in light of the evidence, he could not rely on expenditure forms filed in previous years.  Therefore, he could not further consider the assertion that there had been under‑expenditure in previous years.[35]

    [35] Lightrange [44(iii)].

11. Second, as already mentioned, the warden found that Stuart Bond was not intentionally dishonest in completing the relevant forms.  Rather, the warden found that Stuart Bond was simply ignorant as to the law.  The warden found that that ignorance weighed against the Bonds in considering the gravity requirement.[36]

    [36] Lightrange [45].

12. Third, the warden noted the issues referred to by the Bonds in [38] and [39] of their written submissions.

13. As to the Bonds' submission in [38], in every case where forfeiture of a mining lease is being considered, the holder of the lease would have had to satisfy the Minister that a grant of a mining lease was justified.  If a person did not satisfy the Minister of that, the mining lease would not be granted, and no issue of forfeiture could arise.

14. As to the submission in [39], while the warden said little weight should be given to it, he did not discount it entirely, nor find that it was entirely irrelevant to the analysis.

15. In considering this ground, it is necessary to bear in mind that it is not appropriate to scrutinise the reasons for decision given by wardens with a fine‑tooth comb or with an eye keenly attuned to the identification of error.

16. In my view, the warden did not limit his consideration of the gravity requirement to expenditure and did not fail to consider other relevant circumstances.  The warden considered each of the matters raised by the Bonds.  Accordingly, I dismiss ground 2.

Ground 4 - dowsing

1. Ground 4 alleges the warden erred in holding that the Bonds had the burden of proving there was a scientific basis for dowsing as a form of exploration before expenditure on dowsing could be taken into account.  The Bonds submit that, upon the Bonds adducing evidence of work and expenditure on dowsing, Lightrange had the evidentiary and legal burden of proving that it should not be included in calculating expenditure.[37]

   [37] Application [6]. See also Bonds' Review Submissions [73] ‑ [74].

2. In support of this ground, the Bonds rely on the last sentence of [46] of the warden's reasons.  That paragraph of the warden's reasons is set out earlier.

3. I reject this ground for the following reasons.

4. In [46(iii)] of the warden's decision, the warden was discussing the Bonds' submission that Leonard Bond's work was an indication that the tenement holders had not 'fallen asleep on their rights'.  In the final sentence of [46], the warden was explaining why he was not satisfied that the work was relevant to that.  In [46], the warden was not considering whether dowsing work should be included in the expenditure calculation.

5. In the hearing before the warden, the Bonds conceded that Leonard Bond's work was not undertaken by either of the tenement holding Bonds, and so could not automatically be deemed to be expenditure.  However, the Bonds submitted to the warden that Leonard Bond's work should nevertheless be treated as expenditure, because the tenement holding Bonds had agreed to pay his mortgage in exchange.  However, the warden found that Leonard Bond did not have a mortgage on his portion of the home that he shared with his sons.  This was the reason the warden refused to make any allowance for Leonard Bond's work in the expenditure calculation.[38]

   [38] Lightrange [27] ‑ [29]. See also the concession by counsel for the Bonds at ts 57.

6. Accordingly, the warden's refusal to make an allowance for dowsing work in the expenditure calculation was unrelated to whether it was a valid form of exploration.

7. I dismiss ground 4.

Ground 5 - rent

The alleged error

1. Ground 5 of the Application did not clearly identify whether it alleged a single jurisdictional error or several.  However, the Bonds' submissions[39] made it clear that ground 5 alleged a single jurisdictional error - that the warden erroneously held that only the particular year's annual rent may be included in the particular year's expenditure calculation under reg 96C. The balance of the matters asserted in ground 5 were said to be either precursors to this finding or consequences flowing from it.

Regulations 31 and 96C(2a)

[39] Bonds' Review Submissions [76] ‑ [77].

1. As noted earlier, reg 31(1) prescribes the minimum amount that the holder of a mining lease must expend or cause to be expended in mining, or in connection with mining, on the lease.

2. Regulation 31(1a) provides that expenditure incurred during the anniversary month of the lease's commencement may be treated by the holder as expenditure incurred in either the year immediately preceding the anniversary date or the year starting from that date.

3. Regulation 96C(2a) provides that annual tenement rent may be used in the expenditure calculation.

4. It was not in dispute that, in calculating expenditure for a particular year, the Regulations permit the warden to take into account that year's annual rent.  It was not in dispute that the regulations also permit the warden to take into account annual rent for the subsequent year, if that rent was paid in the anniversary month of the lease's commencement.  It was not in dispute that, in the latter case, the rent could only be claimed once.

5. The anniversary month of the lease's commencement was November.

The warden's reasons on rent

1. The warden dealt with the rent expenditure at [34] ‑ [41] of his reasons.

2. The warden noted the Bonds claimed $7,661 by way of rent for 2015 and 2016.  The warden then referred to the Bonds' evidence in support of those payments.[40]

   [40] Lightrange [34] ‑ [35].

3. The warden then set out a submission by Lightrange,[41] where Lightrange submitted that only the particular year's annual rent may be included in the particular year's expenditure calculation.

   [41] Lightrange [36].

4. Next, the warden set out reg 96C.[42]

   [42] Lightrange [37].

5. The warden then, in [38] repeated Lightrange's submission on this point.

   The Applicant submits that Regulation 96C of the Regulations clearly states 'annual tenement rents and local government rates' may be used in the calculation of expenditure.  Properly construed, it is clear that only the particular year's annual rent may be included in the particular year's expenditure calculation.

6. The warden next set out reg 31(1a) of the Regulations.

7. The warden then said:[43]

   It is not apparent to me on the evidence as to when the 2015 rents were incurred and therefore unclear that they can be claimed in the 2016 year as contemplated by regulation 31(1a).  The sum of rent claimed is therefore halved.

   [43] Lightrange [40].

8. There is clearly a typographical error in the dates. The Bonds were seeking to claim the 2016 rent in the 2015 year. However, the warden clearly understood that rent could be claimable in a particular year even if it was not rent for that year, provided reg 31(1a) applied. Having just set out reg 31(1a), the warden clearly understood when such rent would fall within reg 31(1a) - namely, if it was incurred in the anniversary month of the lease's commencement.

9. However, the warden said the evidence was not clear as to when the rents were incurred.  In other words, he considered that the evidence did not show whether the 2016 rent was incurred in the anniversary month.  As the evidence did not establish that, the warden rejected half of the rent claimed (presumably on the basis that the rent was the same each year).

10. The Bonds submit that the warden found in [38] of his reasons that 'only the particular year's annual rent may be included in the particular year's expenditure calculation' under reg 96C.[44] In [38], the warden was expressly quoting Lightrange's submission. He followed that up by reproducing reg 31(1a) and then setting out the deficiency in the evidence in [40]. He made no finding in [38] and his following paragraphs demonstrate that he did not accept Lightrange's submission on this point.

    [44] Bonds' Review Submissions [75], including the footnote.  See also ts 48.

11. When this was pointed out during the hearing before me, the Bonds said that if the warden did understand the test, he did not apply it.  I was taken to evidence which showed that the 2016 rent had been paid in November 2015.[45]  However, if the warden failed to appreciate that this evidence existed, this would not be a jurisdictional error.  The warden was not bound to take this evidence into account.

    [45] Affidavit of Peter John Curran sworn 6 September 2016, page 36.

12. Accordingly, I dismiss ground 5.

13. In deference to the warden, I note that it is not clear to me that this evidence was adequately drawn to his attention.  In [35], the warden quoted a paragraph from the affidavit of Stuart Bond, which did not identify the payment date - simply that rent payments were made during the expenditure year.  In the hearing before me, the Bonds said that their legal representative in the Warden's Court had drawn the warden's attention to a document that showed the payment date.[46] On the page of the transcript to which I was taken, the Bonds' representative told the warden that two lots of rent were paid in the relevant year and the amounts of the payments of rent appeared on page 36 of a particular affidavit. The representative told the warden that neither were claimed in the 2013 year, and gave the warden a page number of the same affidavit that showed this. The representative referred to reg 31(1a) and the anniversary date of November. However, at least on the page of transcript to which I was taken, the representative did not actually tell the warden that the 2016 rent was paid in November or that the document showed when the rent was paid.[47]

    [46] ts 49.

    [47] See the transcript of the hearing before the Warden's Court, page 3 of 14 March 2017 (at page 443 of the Bundle of Evidence filed in the judicial review proceedings).

Application to amend ground 2

Procedural history

1. Since commencing the proceedings, the Bonds have made several applications to amend their grounds of review.

2. The original application was filed on 17 July 2017.  On 15 September 2017, the Bonds filed a proposed amended application.  On 5 October 2017, the Bonds filed a further proposed amended application, to be substituted for the one filed in September.

3. Lightrange elected not to oppose the October application so as to avoid delay.  Therefore, on 18 October 2017, I gave the Bonds leave to amend their application in accordance with the October application.  The matter was then programmed for hearing.  The parties filed their submissions in December 2017.

4. The hearing was listed for 8 March 2018.  Two days before the hearing, the Bonds filed supplementary submissions in response to supplementary submissions that had been filed by Lightrange.  In those submissions, the Bonds advised that ground 3 was no longer pressed.  During the hearing, the Bonds also advised that they abandoned the allegations that there were errors of law on the face of the record.[48]

   [48] ts 63.

5. The afternoon before the hearing, the Bonds filed an application seeking to further amend the grounds of review.  I will refer to this application as the 7 March Application.  The Bonds' solicitors explained, in effect, that they only noticed the point sought to be raised in the 7 March Application the day before the hearing, and that was why the application was filed so late.[49]  Lightrange opposed the application.

   [49] ts 11.

6. Ground 2 of the 7 March Application alleged:

   Further, and in the alternative, the Warden made a jurisdictional error, and further or alternatively an error of law on the face of the record, when, as a consequence of erroneously identifying and applying s 96 of the Act, he failed to assess the totality of the evidence to consider whether:

   (a)in accordance with s 98(1) there was non‑compliance as regards:

   (i)expenditure on fuel and oil during the relevant expenditure year; and

   (ii)work performed on the lease in the relevant expenditure year in mining or in connection with mining by Leonard Alvin Bond; and

   (b)(in accordance with s 98(5)) the non‑compliance, in the circumstances of the case, was of sufficient gravity to justify forfeiture, and, consequently, identified the wrong issue, asked the wrong question, ignored relevant considerations and/or took into account irrelevant considerations.

7. As can be seen, the proposed amendment sought to insert par (a) into ground 2. However, it did not alter the underlying premise alleged in ground 2 - that the warden erroneously applied s 96. In other words, in order for the proposed amended ground to succeed, the Bonds would still first need to show that the warden erroneously applied s 96. When that was raised with counsel for the Bonds at the hearing, counsel sought leave to propose a further amendment to ground 2.[50]

   [50] ts 12.

8. Counsel for Lightrange maintained his submission that the application to amend should be refused.  He said that his clients wanted to 'get on with mining' and that, if the matter was adjourned, costs would not be adequate.[51]

   [51] ts 16, 18.

9. I accept that Lightrange has a legitimate interest in avoiding any further delays.  However, I was not willing to refuse the application without having had the opportunity to fully consider it.  Accordingly, I reserved my decision on the point.

10. Rather than requiring counsel for the Bonds to articulate the precise wording of the proposed further amendment to ground 2 on the spot, I gave the Bonds leave to file a proposed further amended application after the hearing by 12 March 2018.  I invited counsel for the Bonds to proceed with the hearing on the assumption that leave would be granted.

11. I advised counsel that, if leave was granted, the Bonds' submissions on the proposed amendments would be limited to the written submissions filed the day before the hearing and the oral submissions made on the day.

12. I gave Lightrange leave to file written submissions after the hearing as to whether the proposed new grounds could properly found an allegation of jurisdictional error or warrant relief.  I indicated that I may also subsequently invite Lightrange to file written submissions as to the merits of the proposed new grounds.  I divided the topics in this way to keep open the possibility of avoiding unnecessary costs.  The two topics are entirely distinct.  If I concluded, after considering the submissions on the first topic, that leave should not be granted, it would not be necessary for the more labour‑intensive (and costly) submissions to be made on the merits.

13. The proposed further amendment was filed on 12 March 2018, and I will refer to it as the 12 March Application.

14. In the 12 March Application, ground 2 alleged that the warden made a jurisdictional error in either of two ways (or in both ways):

    (a)he failed to assess the totality of the evidence in considering whether there was non‑compliance 'as regards' expenditure on fuel and work done by Leonard Bond; and/or

    (b)as a consequence of identifying and applying the wrong section, he failed to assess the totality of the evidence in considering whether the non‑compliance in the circumstances of the case was of sufficient gravity to justify forfeiture.

15. As can be seen, the 12 March Application sought, in effect, to add a new ground to the 7 March Application.[52]  Ground 2(a) would no longer be merely an alleged consequence of the allegation that the warden applied the wrong section.

The principles

[52] This was conceded by counsel for the Bonds - see ts 67.

1. The principles to be applied in considering an application to amend were helpfully summarised by Beech J (as his Honour then was) in Samsung C&T Corporation v Loots.[53]  His Honour said (citations omitted):

   [53] Samsung C&T Corporation v Loots [2016] WASC 330 [62] ‑ [63]. Although this decision was overturned on appeal, this aspect of his Honour's judgment was not the subject of complaint or comment - see Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2018] WASCA 27 and Duro Felguera Australia Pty Ltd v Samsung C&T Corporation [2018] WASCA 28.

   The goal in O 1 r 4A of the Rules of the Supreme Court 1971 (WA) and the objects in O 1 r 4B(1) are to be sought in exercising the power to grant leave to amend.

   In Aon Risk Services Australia Ltd v Australian National University, the High Court made observations about the considerations relevant to the exercise of a discretionary power to allow or refuse an amendment to a pleading in the Australian Capital Territory.  Notwithstanding some differences in the language of the relevant rules, their Honours' observations are of assistance in Western Australia, and have been applied by courts in Western Australia.  Those observations include the following:

   (a)The effect of an amendment on the court and on other litigants is relevant.

   (b)There is no right to amend to introduce an arguable case, and it is wrong to say that only in extreme circumstances would a party be shut out from litigating an arguable case.

   (c)Justice requires that parties have a proper opportunity to plead their case, but limits may be placed on repleading when delay and cost are taken into account.

   (d)A just resolution does not mean that a party will always be permitted to raise any arguable case at any point in the proceedings on payment of costs, even indemnity costs.

   (e)The inevitable strains of litigation must be taken into account in weighing the adverse consequences of delay (this applies to natural persons and other litigants).

   (f)The nature and importance of the amendment to the amending party must be taken into account.

   (g)Attention must be given to the extent of the delay, the costs associated with it, the prejudice which might reasonably be expected to follow from it, and any prejudice that is shown.

   (h)The point in the litigation relative to the trial may be an important consideration.

   (i)Where a party seeks to have a discretion exercised in their favour, they will generally need to explain the reason for their application and any delay in bringing it.

   (j)The point can be reached where it may be properly concluded that a party has had a sufficient opportunity to put its case and that it is too late for a further amendment.

Relevant considerations

The lateness of the application, the reason for the delay and prejudice

1. The 7 March Application was made the afternoon before the hearing.  It was brought so late because, in essence, the Bonds' legal representatives had not noticed the point until that time.[54]  While it is not uncommon for counsel to only notice points immediately prior to a hearing, the reason for the delay is not a factor in favour of granting the application.

   [54] Further Supplementary Affidavit of Garry Hamilton Lawton sworn 7 March 2018.

2. Lightrange did not have a meaningful opportunity to consider the 7 March Application before the hearing the following day.

3. The 12 March Application was foreshadowed during the hearing itself.  The 12 March Application was made because counsel for the Bonds had not appreciated that the proposed amended ground 2 would fail if ground 1 of the Application failed.[55]

   [55] ts 11 ‑ 12.

4. Obviously, Lightrange did not have any opportunity, prior to the hearing, to consider the further amendment foreshadowed during the hearing.

5. Lightrange did not want an adjournment.  Lightrange did not have a realistic opportunity to adduce evidence of prejudice (although it did not ask for time to do so).  I accept that I can infer Lightrange could be prejudiced by an adjournment.  If the Minister, after receiving the recommendation of the warden, declares the lease to be forfeited, Lightrange would have a right in priority to any other person to mark out or apply for a mining tenement on the land.[56]  If the Minister did ultimately declare the lease to be forfeited, any adjournment in these proceedings could delay Lightrange's acquisition of this right and its ability to exercise it.

Impact of allowing amendment

[56] Section 100(2).

1. I accept that the proposed amendment would not require any further evidence.[57]

   [57] Lightrange agreed - ts 18.

2. However, the proposed amendment would require more analysis of the evidence that was before the warden.  This would take time, and add to the costs.  That said, I do not think the costs would be prohibitive.  The evidence and transcript comprise less than 500 pages.

Merits of the proposed new ground

1. As noted earlier, I find that the warden did not wrongly identify s 96 as the source of his power and apply the test in that section. This finding would dispose of the 7 March Application proposed ground 2 and the 12 March Application proposed ground 2(b). This leaves the proposed ground 2(a) in the 12 March Application.

2. Proposed ground 2(a) alleges the warden made a jurisdictional error when he failed to assess the totality of the evidence to consider whether, in accordance with s 98(1), there was non‑compliance 'as regards':

   (i)expenditure on fuel and oil during the relevant expenditure year; and/or

   (ii)work performed on the lease in the relevant expenditure year in mining or in connection with mining by Leonard Alvin Bond.

3. At first blush, it is difficult to see how this could amount to a jurisdictional error.  An evaluation of the Bonds' submissions on this point demonstrates that it could not.

Fuel and oil - proposed ground 2(a)(i)

1. The Bonds submit that the warden found that there were four trips to the mine site, representing fuel and oil costs of $4,620.  The Bonds complain that, having made that finding, the warden only allowed $500.  The Bonds submit that this was a jurisdictional error for either of two reasons - either it was a failure to take into account a relevant consideration or it was legally unreasonable because he had made an arbitrary choice.[58]

   [58] ts 13.

2. The Bonds submit that it was open to them to argue these jurisdictional errors under proposed ground 2.[59]  I disagree.  In any event, as I will explain, the warden did not make either of the alleged errors.

The warden's reasons

[59] ts 13 ‑ 14.

1. The warden noted the evidence of Stuart Bond about trips to the site in the relevant year.[60]  Stuart Bond's evidence was:

   1.he travelled to the site in March 2015 with his father, Leonard Bond, but the relevant receipts had been lost;

   2.his father also went to the site in April and August 2015; and

   3.he, Ward Bond and their father went to the site in separate vehicles in October 2015.

   [60] Lightrange [17].

2. The warden said he would not make allowances for Leonard Bond's work and travel and explained why.[61]

   [61] Lightrange [26] ‑ [29].

3. In relation to the fuel and oil costs, the warden said this:[62]

   [O]nly 3 receipts were produced in respect to fuel costs showing purchases made on 16, 17 and 18 October 2015.  The total of these 'proven' expense which was only $396.40.  The ATO allows the claim rate of 66 cents per kilometre in a vehicle used in business purposes resulting in a calculation of 875 kilometres x 2 (for each trip) equalling $1155 per vehicle/trip.

   I accept, on the basis discussed above, there is a total of 4 vehicle trips March (1), October (3) totalling therefore $4620.00.  It was entirely unclear to me on the basis of the evidence as to how the tenement holders have arrived at the figure of $3750.00 claimed in the Form 5.  I am only prepared to allow the value of the receipts for the October trip - increased to take account of cost which must have been incurred for the March trip.  I allow $500.00.

   [62] Lightrange [31] ‑ [32].

4. Accordingly, the warden allowed the costs shown by the receipts for the October trip.  He then made an additional allowance for Stuart Bond's March trip even though the receipts for that trip had been lost.

5. The warden did not refer to who owned each of the vehicles.  During the hearing before me, counsel for the Bonds advised that the evidence indicated that Leonard Bond owned the vehicle used in March and two of the vehicles used in October.  Ward Bond owned the other vehicle used in October.[63]

Conclusion on merits of fuel and oil ground

[63] ts 97 ‑ 98.

1. The warden did not commit a jurisdictional error by failing to take into account a relevant consideration.  It was not a mandatory requirement that the warden take into account the ATO allowance rate in making a decision under s 98 of the Act.  It was not mandatory that the warden allow costs in accordance with that rate.  In any event, the warden considered each of those two things and then explained why he was not allowing an amount calculated in that way.

1. Nor was the warden's decision legally unreasonable. Even putting aside the limits on that concept,[64] and the fact that the complaint here relates to a single component of one of many aspects of the warden's ultimate decision, the complaint is unfounded. The warden's choice was not arbitrary. He explained that he had decided to allow the amount proved by the receipts, and he also allowed, despite the lack of receipts, an extra amount to reflect that there would have been additional cost incurred in the March trip. If this was an error, it was an error within jurisdiction.

   [64] See Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313 [66] ‑ [68].

2. Returning to the proposed ground 2(a)(i) as it is actually framed, the warden did not fail to assess the totality of the evidence in relation to fuel and oil.  He did assess the totality of the evidence.  He simply decided to allow only an amount that would reflect the receipts, with an additional allowance for a separate trip for which there were no receipts.  If this was an error, it was an error in carrying out the assessment, not a failure to assess.  If it was an error, it was an error within jurisdiction.

The work done by Leonard Bond - proposed ground 2(a)(ii)

1. Proposed ground 2(a)(ii) alleges, in effect, that the warden failed to consider Leonard Bond's work in evaluating the extent of the non‑compliance with the expenditure condition.

2. Before the warden, the Bonds conceded that Leonard Bond's work should not be taken into account in calculating expenditure.[65]  In the hearing before me, the Bonds sought to withdraw that concession.[66]

   [65] ts 30 (see also 26 ‑ 31).

   [66] ts 31.

3. The Bonds submit that the evidence showed that Leonard Bond had done work to the value of $5,405.[67]

   [67] ts 37, 43 ‑ 44.

4. The warden found that Leonard Bond was not paid for his work.  This finding was not challenged.

5. The Bonds submit that reg 31 should be construed so as to permit unpaid work done by a person other than the holder of the mining lease to be given a monetary value and taken to be expenditure for the purpose of this regulation.[68]  I do not accept that submission for the following reasons.

   [68] ts 40 ‑ 41.

6. As noted above, reg 31(1) relevantly provides:

   The holder of a mining lease shall expend or cause to be expended in mining on or in connection with mining on the lease not less than $100 for each hectare or part thereof of the area of the lease with a minimum of $10 000 during each year of the term of the lease; but if the holder is directly engaged part‑time or full‑time in mining on the lease itself then an amount equivalent to the remuneration that the holder would be entitled to if engaged, under a contractual arrangement, in similar mining activity elsewhere in the district shall be deemed to have been expended.

7. As can be seen, reg 31(1) has two parts, separated by the semi‑colon.

8. The first part deals with actual money being spent, or caused to be spent, by the holder of the mining lease.  No payments were made to Leonard Bond for his work.

9. The second part allows work done by the holder of the lease to be given a monetary value and deemed to have been expended. It is expressly limited to the holder of the lease. It is, in effect, an exception to the requirement in the first part that money must be spent or caused to be spent by the holder. There is no warrant for reading additional words into the regulation. The plain meaning of reg 31(1) is that the only unpaid work that can be treated as expenditure is work done by a holder of the lease. Leonard Bond was not a holder of the lease.

Over‑arching importance

1. The Bonds submitted that if the warden had not made the errors alleged in proposed ground 2(a), he would have found that the expenditure conditions had been met.[69]

   [69] Further Supplementary Submissions filed 7 March 2018 [7].

2. As Lightrange pointed out, the entire hearing before the warden was conducted on the basis of the Bonds' concession that they had not complied with the expenditure conditions.[70]

Conclusion on application to amend

[70] This was expressly acknowledged in the Bonds' Review Submissions [9].

1. After receiving Lightrange's submissions on the first topic, and considering all the submissions made, I concluded that it was unnecessary to seek further submissions from Lightrange as to the merits.  This was because I concluded I should not permit the amendment to be made, irrespective of what Lightrange may submit on the merits.  I reached that conclusion having considered all of the matters discussed above.  The following factors were of particular weight in the circumstances.

2. First, allowing the amendment would require me to:

   1.give leave to the Bonds to amend their application, when the 7 March Application was only made the day before the hearing, and the 12 March Application was only foreshadowed during the hearing;

   2.allow the Bonds to allege errors had been made so that they could argue that there was in fact compliance with the expenditure conditions, contrary to the concession made before the warden;

   3.in relation to proposed ground 2(a)(ii), allow the Bonds to argue that Leonard Bond's work should count towards 'expenditure', contrary to a concession made before the warden.

3. Second, there is no merit in the proposed amended ground 2.

4. For these reasons, I refuse the applications to amend.

Conclusion

1. For the above reasons, I refuse leave to amend the Application, and dismiss the Application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AK

COURT OFFICER

31 MAY 2018