JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BROSNAN -v- MERIDIAN MINING LTD [2011] WASC 43
CORAM: ALLANSON J
HEARD: 15 FEBRUARY 2010
DELIVERED : 24 FEBRUARY 2011
FILE NO/S: CIV 2566 of 2010
BETWEEN: ALAN NEVILLE BROSNAN
PHYLLIS MARIE BROSNAN
PlaintiffsAND
MERIDIAN MINING LTD
Defendant
Catchwords:
Administrative law - Certiorari - Order to show cause - Error of law
Mining - Expenditure condition on mining lease - Forfeiture - Allowable expenditure - Prepayments - Aerial surveys - Administration expenses
Legislation:
Mining Act 1978 (WA), s 82, s 98(1), s 98(2), s98(3)
Mining Regulations 1981 (WA), reg 31(1), reg 31(1b), reg 96C
Result:
Order to show cause granted
Category: B
Representation:
Counsel:
Plaintiffs: Mr G H Lawton
Defendant: Mr M J McCusker QC
Solicitors:
Plaintiffs: Lawton Lawyers
Defendant: Mizen & Mizen
Case(s) referred to in judgment(s):
Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282
Collector of Customs v Agfa‑Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Hawks v Shadmar Pty Ltd [2004] WASC 252
Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531
McKay v Commissioner of Police [2006] WASC 189
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Heaney; Ex Parte Flint v Nexus Minerals NL (Unreported, WASCA, Library No 970065, 26 February 1997)
Re Her Honour Judge Schoombee; Ex Parte Attorney General for Western Australia [2011] WASC 23
Re His Honour Warden Calder SM; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289
Re His Worship Calder SM, Ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525
Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264
Re Plutonic Operations Ltd, Sipa Resources Ltd and The Minister for Mines; Ex Parte Roberts [1999] WASCA 133
Re Roberts SM; Ex Parte Burge [2003] WASCA 2
Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
Re Western Australian Planning Commission; Ex Parte Solomon [2010] WASC 192
Re Western Australian Planning Commission; Ex Parte South Fremantle/Hamilton Hill Residents' Association Inc [2005] WASC 50
Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473
Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54
ALLANSON J: Meridian Mining Ltd (Meridian) holds three mining leases and an exploration licence. Two of the mining leases (M70/815 and M70/816) are contiguous and are entirely contained within the boundaries of the exploration licence. Together they are sometimes referred to as the Tampia tenements. The other mining lease is geographically separate.
In December 2007, the applicants applied under s 98 of the Mining Act 1978 (WA)…
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- AGLC
- Brosnan v Meridian Mining Ltd [2011] WASC 43
- Case
- [2011] WASC 43
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the record of the warden's decision included the transcript of the evidence, and whether the errors alleged in the application were errors of law. The court found that the record of the warden's decision did not include the transcript of the evidence, but that question was arguable. The court also found that the errors alleged in the application were errors of law, as they related to the construction of the legislation and the interpretation of evidence.
The court granted the application for certiorari, quashed the warden's decision, and remitted the matter to the warden for reconsideration in light of the court's reasons. The court found that the warden's decision was flawed because it incorrectly treated prepayments as allowable expenditure, and it failed to consider whether the wages and superannuation for the two employees were expenditure on administration. The court also found that the warden's decision was unreasonable because it did not provide adequate reasons for the decision, and it did not consider the effect of the prepayments on the total allowable expenditure.
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
Whether the record includes the transcript is more contentious. Section 98(6) provides for the warden to forward to the Minister 'the notes of evidence'. This suggests that the notes of evidence are part of the report to the Minister. With modern technology, notes of evidence may be in the form of transcript: see Re Plutonic Operations Ltd, Sipa Resources Ltd and The Minister for Mines; Ex Parte Roberts [1999] WASCA 133 [32]. Whether that makes the transcript part of the record for the purposes of an application for a prerogative writ is, on my view of the authorities, open to question: see, for example, Re Heaney; Ex Parte Flint. For present purposes, senior counsel for Meridian accepted that the applicants' position is at least arguable, and the transcript may be part of the record. Senior Counsel also clearly foreshadowed that the respondent will put that question in issue on the return of the order nisi. The second preliminary question is whether the errors asserted in the grounds of the application are errors of law. The distinction between errors of fact and errors of law is not always readily drawn, and 'no satisfactory test of universal application has yet been formulated': Collector of Customs v Agfa‑Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 394. The first two grounds of the application claim errors in the construction of the legislation. In ground 1, the applicants claim, in substance, that reg 31 of the Mining Regulations does not allow a lessee to claim a prepayment as allowable expenditure. In ground 2, they claim that the warden failed to properly construe and apply reg 96C(3e), as that regulation (properly construed) does not permit a lessee to claim prepayment for the cost of an aerial survey as allowable expenditure, when the survey is not conducted during the expenditure year in which the expenditure is claimed. It is well established that 'the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law': Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 [7]; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287. Both grounds allege error of law. Ground 3 raises two questions. The first is whether there was any evidence on which the warden could find that the wages for Mr Morellini and Mr Denn were expenditure in mining on or in connection with mining on the lease. There is no error of law in making a wrong finding of fact: see, for example, Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77. But the question whether there is any evidence of a particular fact, and the question whether a particular inference can be drawn from the facts found or agreed, are both questions of law: Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473, 481, 483. The first aspect of ground 3 raises error of law. The second part of ground 3 is whether the warden erred in law in not treating the wages and superannuation of Mr Morellini and Mr Denn as expenditure on administration (the maximum amount for which had already been claimed). This may, at least in part, be a question of fact, although the ground also raises whether, as a matter of construction, those payments come within the category of administration.