Brosnan v Meridian Mining Ltd
[2011] WASC 43
•24 FEBRUARY 2011
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
Woodley v Minister for Indigenous Affairs [2009] WASC 251
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) for forfeiture of the mining lease M70/816 held by Meridian, on the ground that Meridian had failed to comply with the expenditure conditions for that lease for the expenditure year ending in August 2007. Another applicant, Mr Bronte Stewart applied for forfeiture of all four of the tenements held by Meridian, including M70/816.
On 10 December 2009 the warden heard the all of the applications together. In his report to the Minister under s 98, the warden found there was a 'relatively large non‑compliance' in respect of M70/816. He also found failure to comply with the expenditure condition, although in a relatively small amount, in relation to a contiguous tenement M70/815. He concluded:
I am of the opinion that the shortfall in the expenditure of those two tenements is not sufficient in all the circumstances to justify forfeiture.
The warden dismissed all of the applications.
The applicants apply to have the decision quashed as regards their application. Mr Stewart has not applied to the court.
The current application
The applicants now seek an order that:
The Warden sitting as Warden of the South West Mineral Field do show cause before the Court of Appeal why a Writ of Certiorari should not be issued against him to remove into that Court for the purpose of being quashed the decision made by Warden G N Calder M on the 20th May 2010 with respect to Application for Forfeiture 279986 affecting Mining Lease 70/816 (the tenement) whereby the Warden dismissed the Application for Forfeiture.
There are three grounds to the application as set out in the minute of proposed amended notice of originating motion:
(1)The learned Warden in his decision delivered 20 May 2010 erred in law in dismissing the Applications for Forfeiture in respect to the tenement by including a pre‑payment as claimable expenditure.
(2)The Warden failed to give any or any proper consideration to the terms of regulation 96C(3e) of the Mining Regulations when allowing the respondent's claim for expenditure in respect of a pre‑payment for an aerial survey relating to the tenement.
(3)The Warden erred at law in allowing the costs of wages and superannuation for Morellini and Denn to be claimed as expenditure in its own right.
Each of the grounds was accompanied by particulars.
The amendment of the application
The application was originally brought by originating summons, rather than by originating motion. It was based upon two grounds, essentially grounds 2 and 3 of the present application. The amended application changes the wording and format of the original grounds, as well as adding what is now ground 1.
At the hearing of the application for an order to show cause, the applicants sought to amend their application to include ground 1. The application was opposed, primarily because it was brought outside the six months limited by Rules of the Supreme Court 1971 (WA) O 56 r 11 for bringing an application for certiorari.
Order 56 r 6 of the Rules of the Supreme Court provides for the amendment of an application. In particular, r 6(2) provides that the court may allow any amendment which it thinks necessary for the advancement of justice. Otherwise, an applicant may only rely on the grounds set out in the order nisi or notice of motion 'except by leave of the court'.
In my opinion, it is appropriate to allow the amendment to include the additional ground at this stage of the proceedings, that is when it is still an application for an order to show cause. The application was brought within the time limited by O 56 r 11. The choice of the wrong originating process was an irregularity which was readily corrected. Ground 1 advances a further argument in relation to whether Meridian was entitled to claim allowable expenditure for a prepayment for an aerial survey. The applicant has, from the filing of the originating summons, challenged the lawfulness of that prepayment being included in the allowable expenditure. In the circumstances, I think it is necessary for the advancement of justice to allow the amendment to be made at this stage.
The legislative scheme
The Mining Act in s 82 provides, relevantly:
(1)Every mining lease shall contain and be subject to the prescribed covenants by the lessee and in particular shall be deemed to be granted subject to the conditions that the lessee shall -
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(c)comply with the prescribed expenditure conditions applicable to such land unless partial or total exemption therefrom is granted in such manner as is prescribed.
'Expenditure conditions' is defined in s 8.
expenditure conditions in relation to a mining tenement means the prescribed conditions applicable to a mining tenement that require the expenditure of money on or in connection with the mining tenement or the mining operations carried out thereon or proposed to be so carried out.
Mining operations is also defined. The definition refers to various operations and processes for the purpose of obtaining minerals, and includes 'the doing of all lawful acts incident or conducive to any such operation or purposes'.
Regulation 31(1) of the Mining Regulations 1981 (WA) prescribes the following expenditure conditions:
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.
Regulation 31(1b) further provides that the specific provisions in reg 96C, relating to allowable expenditure and non‑allowable expenditure for the purposes of calculating expenditure under a lease, apply when calculating expenditure under the regulations.
I will return to reg 96C later in these reasons.
Under s 98(1) of the Act:
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.
Section 98(2) provides for when an application must be brought; the application shall be heard by the warden: s 98(3). The warden may not order forfeiture. Rather, when the warden finds that the lessee of a mining lease has failed to comply with expenditure requirements, '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': s 98(4A). The warden is not to recommend forfeiture unless the warden is satisfied that the non‑compliance is, in the circumstances of the case, of sufficient gravity to justify the forfeiture: s 98(5).
By s 98(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.
Under s 99(1):
The Minister, after receiving the recommendation of the warden as provided in section 98, may, as the Minister thinks fit -
(a)declare the exploration licence or the lease to which the recommendation relates, forfeited;
(b)impose a penalty not exceeding $10 000 as an alternative to forfeiture;
(c)award the whole amount of the penalty or any part thereof to the applicant who applied for forfeiture; or
(d)determine not to forfeit such licence or lease or impose any penalty.
In hearing an application for forfeiture, and reporting and making a recommendation to the Minister, the warden performs an administrative function: Re His Worship Calder SM, Ex parte Gardner[1999] WASCA 28; (1999) 20 WAR 525; Hawks v Shadmar Pty Ltd [2004] WASC 252.
The criteria for the grant of the writ of certiorari
The remedy of certiorari will lie for jurisdictional error, and also for error of law on the face of the record: Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [56]. It is not necessary, having regard to the grounds put forward by the applicants, to deal with the distinction between jurisdictional and non‑jurisdictional error of law. The applicants base their application entirely on error of law on the face of the record.
There is a preliminary question of what is the record for the purposes of the application. In Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 [30], the Court of Appeal referred to the many decisions, not all consistent, dealing with whether or not reasons form part of the record. The position has now been clarified to some extent, at least as regards reasons. First, reasons will not generally form part of the record for the purposes of certiorari unless the tribunal giving them chooses to incorporate its reasons: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 180 ‑ 181. Second, regard must be had to the statutory context to determine whether the reasons of the tribunal are intended to be part of the record: this may be done explicitly (see, for example, Kirk [89]), or by implication: Re Roberts SM; Ex Parte Burge [2003] WASCA 2. In any event, the decision of the court in Re Roberts SM; Ex Parte Burge is directly on point, and requires me to hold that the record includes the reasons - that is, the report of the warden (compare Re Heaney; Ex Parte Flint v Nexus Minerals NL (Unreported, WASCA, Library No 970065, 26 February 1997). In that decision, Olsson AUJ also suggested at [59] that should he be incorrect, he would afford the defendants the opportunity to apply to vary the order nisi to also invoke the grounds of jurisdictional error as more appropriate bases for certiorari.
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.
The test for the grant of an order nisi
The test for an applicant to meet at this stage has been variously formulated. It is generally accepted that an applicant for an order nisi must demonstrate an arguable case for the relief sought: see, for example, Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282 [54]; Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264. In McKay v Commissioner of Police[2006] WASC 189, and Woodley v Minister for Indigenous Affairs [2009] WASC 251, Martin CJ suggested that it would be an 'inappropriate' exercise of power for a judge to issue an order nisi unless the judge was also satisfied that the case had some reasonable prospects of success.
In the present case, Meridian was represented and opposed the grant of the order to show cause. The court has had the benefit of argument on behalf of both the applicants and Meridian.
The grounds
Ground 2
It is convenient to begin with ground 2. The warden found that Meridian entered into a contract with Fugro Airborne Surveys Pty Ltd (Fugro) during the relevant expenditure year and paid pursuant to that contract, an amount of $64,559 inclusive of GST. The contract was for Fugro to undertake aerial surveys of the three Tampia tenements. Payment was made during the 2007 expenditure year, but the work was not done until the following year. This question of prepayment is dealt with in both grounds 1 and 2.
Ground 2 relies on the specific expenditure provisions in reg 96C dealing with aerial survey. Regulation 31(1b) provides that the specific provisions in reg 96C apply when calculating expenditure under reg 31. In its relevant parts reg 96C provides:
(3b)The cost of an aerial survey may be used in the calculation of expenditure expended on, or in connection with, mining on any mining tenement that is located wholly or partly within the boundaries of the survey when those boundaries are projected onto the surface of the Earth.
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(3d)Where the cost of an aerial survey is used in the calculation of expenditure for more than one mining tenement, the cost is to be apportioned between the mining tenements in such a way that the total expenditure claimed does not exceed the cost.
(3e)For the purposes of subregulations (3b) and (3d) the cost of an aerial survey comprises -
(a)the cost of acquiring data, in the air and on the ground, during the period in which the aerial survey is conducted; and
(b)the cost of processing that data to produce fully corrected, point‑located digital data stored on an appropriate computer-compatible medium.
The applicants argue that on its proper construction, reg 96C(3e) permits only expenses in relation to an aerial survey in the year the survey was conducted, that is, the aerial survey must be flown during the relevant expenditure year. They submit that the words in sub-paragraph (a), 'during the period in which the aerial survey is conducted,' are words of limitation. Where prepayment is made for an aerial survey, that prepayment is not part of the cost of acquiring data during the period in which the aerial survey was conducted.
The question raised in ground 2 is seriously arguable and requires resolution after a full hearing. It is necessary in construing legislation to strive to give meaning and effect to all of the words in the section, and not to assume that some part of the provision is superfluous or of no effect: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 382 [71]. The effect of reg 96(3e)(a) must be considered.
It is unnecessary to say anything further at this stage. The test for the grant of an order to show cause has been satisfied, and an order with regard to ground 2 should be made.
The amount claimed as cost of the aerial survey is a large component of the expenditure allowed by the warden. A finding that it should not be included will be important to any re-exercise of the warden's discretion whether to recommend forfeiture of the tenement.
Ground 3
The warden accepted that wages and superannuation paid to Mr Denn and Mr Morellini by Meridian, apportioned and allocated appropriately, were claimable as allowable expenditure. When calculating the expenditure on mining lease M70/816, the warden allowed an amount of $1,930 for wages and superannuation for Mr Denn, and $5,276 for wages and superannuation for Mr Morellini.
Mr Denn is a geologist. He first became associated with Meridian in late 2005 and was a director of Meridian from 8 February 2007 to 18 June 2007 (that is during the relevant expenditure year). From mid‑March 2007 until 18 June 2007 he was Meridian's managing director. During that time he was paid a salary. Mr Denn was paid at the rate of $170,000 a year; the warden calculated the amount paid for the three months from March to June of 2007 as $42,500. The warden found that during that period most of Mr Denn's time was occupied in work connected with a proposed public float of Meridian. He concluded that had Mr Denn not been engaged in that work, the time he would have spent in relation to the Tampia tenements would amount to $21,250 (that is, 50% of his time). The warden said that no specific figures have been given in evidence regarding the amount of time that Mr Denn had spent, but continued:
I am not prepared to accept that he spent any more than 25 per cent of his time on or in connection with mining on the tenements. 25 per cent of $21,250 is $5,312 for the three Tampia tenements; allocation between each of those three tenements should therefore be $1,771.
His Honour then allowed for superannuation and arrived at the amount of $1,930 for each of the three tenements.
With regard to Mr Morellini, the warden found that during the period 19 March 2007 to August of 2007, Mr Morellini was paid wages of $43,231 and superannuation of $4,251. The warden allocated 50% of that to the three Tampia tenements, and then took two‑thirds of that amount as allowable expenditure. That resulted in $5,276 being allocated to each of the three tenements, including M70/816.
The applicants complain that there was no evidence from which the warden could find either that Mr Denn spent 25% of his time on the three Tampia tenements, or from which he could allocate that time equally between those three tenements. Similarly, there was no evidence from which findings could be made that Mr Morellini carried out work in relation to the three tenements; that 50% of his wages ought to be allocated to the three Tampia tenements; that two‑thirds of that 50% could be attributed to allowable expenditure on the three Tampia tenements; or that the amount could be equally allocated over the three tenements.
The applicants raise a second argument regarding the warden's treatment of wages and superannuation for Mr Denn and Mr Morellini. Under reg 96C(3):
Administration and land access costs relating to land which is the subject of a mining tenement may be used in the calculation of expenditure expended on, or in connection with, mining on the mining tenement, but only up to 20% of the minimum commitment, or 20% of the total expenditure on the mining tenement, whichever is the greater amount.
Meridian Mining claimed $9,203 - the maximum allowable claim for administration under s 96C(3). If the wages and superannuation for Mr Denn and Mr Morellini were administration expenditure, no further amount could be claimed for them.
The term 'administration expenditure' is not defined, although the prescribed form for returning expenditure on a mining tenement refers to 'administration and overheads' as 'all non‑field activities such as head office costs, accounting, mining tenement management, administration, research, literature studies, training, etc'. The applicants contend that, properly construed, administration costs include wages and superannuation of the two directors. This is particularly so for Mr Morellini who did not have expertise relevant to field activities.
Again, in my opinion, the contentions are reasonably arguable. The amounts involved are not as significant as the aerial survey cost. But would still be more than 10% of the minimum expenditure commitment for the relevant year.
Ground 1
Ground 1 is weak. The applicants assert that the prepayment for the aerial survey was not allowable expenditure; more generally, they submit that prepayment for any purpose cannot come within reg 31(1). Regulation 31 requires the expenditure to be for 'expenses in mining on or in connection with mining on the lease'. A prepayment cannot, in the applicants' submission, be in mining or in connection with mining.
The relevant prepayment was for the aerial survey carried out by Fugro. The warden found that there was a binding and enforceable agreement between Meridian and Fugro, under which Fugro was to perform work 'connected with its proposed future investigations to ascertain the nature and extent of any mineralisation within the three tenements over which the aerial survey was undertaken'. The agreement was entered into during the 2007 expenditure year, and payment was made by Meridian during that year. The work was carried out in November 2007, after the end of the expenditure year.
The construction of reg 31 put forward by the applicants is inconsistent with authority: see Re His Honour Warden Calder SM; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [36] ‑ [46]; see also Re Heaney; Ex parte Flint. In Ex Parte Lee, McLure JA said, at [45]:
That question is whether, following the cessation of mining operations and in the absence of any intention to conduct future mining, expenditure for the purpose of complying with conditions of the mining lease is capable of being 'in connection with mining'. It is apparent from the authorities to which I have earlier referred that the expression 'in connection with' can readily extend to expenditure on matters subsequent to and consequential upon the specified thing (in this case, mining operations). I see no basis in the language or purpose of the Act and Regulations to read down the expression 'in connection with' to exclude such matters.
The language of reg 31 similarly does not exclude a payment made for a service to be provided the following expenditure year from being an amount expended in connection with mining on the lease.
There is a second aspect to the applicants' argument under ground 1. The relevant prepayment was for an aerial survey. The applicants refer to reg 96C(3d) and submit that were it not for that provision, the cost of an aerial survey would not be allowable as expenditure on or in connection with mining. The cost of an aerial survey would only be expended in mining or in connection with mining if something were done 'on the ground'.
The argument is without merit. Regulation 96C(3b) is not required to make the cost of an aerial survey allowable expenditure. A survey would be allowable as an expense in connection with mining without reference to that regulation. Mining includes 'mining operations': s 8. Mining operations are:
[A]ny mode or method of working whereby the earth or any rock structure stone fluid or mineral bearing substance may be disturbed removed washed sifted crushed leached roasted distilled evaporated smelted or refined or dealt with for the purpose of obtaining any mineral therefrom whether it has been previously disturbed or not and includes … the doing of all lawful acts incident or conducive to any such operation or purposes.
In my opinion, it cannot be argued that a survey to ascertain the nature and extent of mineralisation over a tenement is not incident or conducive to recovering minerals.
What reg 96(3b) does is specify those tenements for which the cost can be claimed - those tenements 'located wholly or partly within the boundaries of the survey when those boundaries are projected onto the surface of the Earth'.
Accordingly, in my opinion, ground 1 does not have sufficient prospects of success to warrant an order to show cause in relation to it. The order to show cause should be in relation to grounds 2 and 3 only.
Return of order nisi before Court of Appeal
Under O 56 r 2 of the Rules of the Supreme Court, an order to show cause may be heard by a judge in chambers or in court, or in the Court of Appeal. The rules do not indicate in which circumstances the matter should be heard by the Court of Appeal, and do not limit the discretion of the judge granting the order nisi. The choice of court has been recently referred to in a small number of cases: Re Her Honour Judge Schoombee; Ex Parte Attorney General for Western Australia [2011] WASC 23; 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. There has been no attempt, so far as I am aware, to state any guidelines for the exercise of the discretion.
The originating motion sought the return of the order to show cause before the Court of Appeal. At the hearing of the application for an order nisi, counsel for the applicants agreed that the matter could properly be dealt with by a single judge. I agree. I am not aware of any factor arising in this application which makes determination by a single judge inappropriate. Return to a single judge is a better use of the finite resources of the court.
Conclusion
There will be an order that the warden show cause why a writ of certiorari should not be issued against him to remove into this court for the purpose of being quashed the decision made on 20 May 2010 with respect to application for forfeiture 279986 affecting Mining Lease 70/816 whereby the warden dismissed the application for forfeiture. The grounds of the order nisi will be those set out in grounds 2 and 3 of the application. The matter will be returned before a judge in court.
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