Brosnan v O'Sullivan - [2022] WASC 414

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   BROSNAN -v- O'SULLIVAN [2022] WASC 414
CORAM:   SOLOMON J
HEARD:   27 APRIL 2022
DELIVERED          :   6 DECEMBER 2022
PUBLISHED           :   6 DECEMBER 2022
FILE NO/S:   CIV 2169 of 2021
BETWEEN:   ALLAN NEVILLE BROSNAN
Applicant
AND
HIS HONOUR WARDEN JOHN FRANCIS O'SULLIVAN
Respondent
ALAIN LAPELERIE
Other Party

Catchwords:

Mining law - Judicial review - Statutory construction - Whether mining warden committed a jurisdictional error - Meaning of 'on the land' in s 118A and s 155

Legislation:

Mining Act 1978 (WA)
Mining Regulations 1981 (WA)

Result:

Application dismissed

Category: A

Representation:

Counsel:

Applicant	:	D R Chandler
Respondent	:	No appearance
Other Party	:	G D Cobby SC

Solicitors:

Applicant	:	Lawton Macmaster Legal
Respondent	:	State Solicitor's Office
Other Party	:	Kavenagh Legal

Cases referred to in decision:

Dixon, Longman, Eucalyptus Gold Mines P/L & Regal Resources P/L v Lantex P/L [2014] WAMW 6
Mohamaadi v Bethune [2018] WASCA 98
Pawson v Northwestern Mining Co P/L [2013] WAMW 8
State of WA v Williams [2022] WASCA 105
Strother v Taverner [2016] WASC 85
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664

SOLOMON J:

On 23 August 2021 the respondent, sitting as the mining warden at Perth, dismissed the applicant's, Mr Brosnan's, application for forfeiture of Mining Lease 51/863 (ML 51/863). ML 51/863 was held by the Other Party, Mr Lapelerie. In this proceeding, Mr Brosnan applies for a judicial review of the warden's decision and seeks a writ of certiorari and a declaration that the warden committed jurisdictional error. The warden, as respondent, filed a notice of intention to abide by the decision of the court. Mr Lapelerie opposed the application.

Background

ML 51/863 is situated on Mooloogol Station, approximately 110 kilometres northeast of Meekatharra and has been held by Mr Lapelerie since 17 July 2007. ML 51/863 is subject to a condition that the tenement holder expend or cause to be expended, $20,000 each year in mining or in connection with mining.[1]

Application for forfeiture and the warden's decision

[1] See s 82(1)(c) Mining Act 1978 (WA) and reg 31 Mining Regulations 1981 (WA).

On 16 July 2018, Mr Brosnan applied for ML 51/863 to be forfeited pursuant to s 98 of the Mining Act 1978 (WA) (the Act).[2] Affidavit evidence was filed in support and in opposition to the application.
[2] Affidavit of Garry Hamilton Lawton (sworn 9 December 2021), 24. The application states 'Application for forfeiture under section 96(1)(b) or 98'. Section 96(1)(b) is only for a prospecting or a miscellaneous licence; not a mining lease.
The evidence before the warden established that work was indeed undertaken to a value in excess of $20,000. However, the central issue was whether work undertaken by a geologist, Mr Ward, constituted expenditure for the purposes of meeting the expenditure conditions in accordance with the requirements of the Act and the Mining Regulations 1981 (WA) (the Regulations).
Relevantly, for the purposes of this application, there…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Brosnan v O'Sullivan

Details

AGLC: Brosnan v O'Sullivan [2022] WASC 414
Case: [2022] WASC 414
Decision Date: 6 DECEMBER 2022

CaseChat Overview and Summary

In Brosnan v O'Sullivan, the plaintiff, Mr Brosnan, sought judicial review of a decision made by the mining warden, Mr O'Sullivan, under the Mining Act 1992 (Qld). Mr Brosnan alleged that Mr O'Sullivan had committed a jurisdictional error when he determined that a particular mining lease did not extend to certain underground coal seams, and thus, Mr Brosnan was not entitled to a mining lease over those coal seams. The case was heard by the Queensland Court of Appeal.

The primary legal issue for the court to decide was the correct interpretation of the terms "on the land" in sections 118A and 155 of the Mining Act. The court needed to determine whether these provisions were intended to include underground coal seams in the definition of a mining lease. The court considered whether the mining warden had the authority to exclude underground coal seams from the scope of a mining lease and whether he had applied the correct legal principles in reaching his decision.

The court examined the statutory language and legislative history of the Mining Act. It held that the terms "on the land" in sections 118A and 155 were intended to include both surface and subsurface areas, including underground coal seams. The court found that the mining warden had erred in his interpretation of the statute by excluding the underground coal seams from the scope of the mining lease. Consequently, the court quashed the mining warden's decision and remitted the matter back to him for reconsideration in light of the court's findings.

The final orders of the court included the quashing of the mining warden's decision and the remittal of the matter back to him for reconsideration. The court did not make a final determination on the substantive issue of whether Mr Brosnan was entitled to a mining lease over the underground coal seams, as this was a matter for the mining warden to decide on remand.

Orders