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 were three important features of the expenditure established by the evidence.
First, Mr Lapelerie did not pay Mr Ward in cash for the work he undertook. Rather, pursuant to agreed rates, the value of the work earned Mr Ward a 34% interest in ML 51/863.
Secondly, the work was not undertaken on the physical land of ML 51/863. Rather, Mr Ward remained in Queensland and the work consisted of analyses and processing undertaken by Mr Ward without any attendance on the land itself.
Thirdly, the agreement between Mr Ward and Mr Lapelerie, whereby Mr Ward would earn an interest in ML 51/863 for the work he undertook, was a 'verbal gentlemen's agreement'. No evidence was adduced of any written agreement.
The central issue that divided the parties and that arose for the warden's determination was whether the work undertaken by Mr Ward could be taken into account for the purpose of calculating expenditure under the Act. Mr Brosnan claimed that the work could not be taken into account for two reasons.
First, as the payment for the work was constituted by the earning of an interest in the tenement, it was said to be precluded by reg 96C. Regulation 96C specifies particular types of expenditure that may or may not be used in the calculation of expenditure in fulfilment of an expenditure condition of a tenement. Regulation 96C(4)(b) provides that 'any costs associated with the acquisition or sale of mining tenements' cannot be used in the calculation of expenditure. Mr Brosnan contended that the earning of an interest in the tenement as consideration for the work, meant that reg 96C(4)(b) precluded the work from being used in the calculation of expenditure to fulfil the condition of ML 51/863.
Secondly, Mr Brosnan contended that Mr Ward's work did not qualify as 'paid work', which the warden understood to mean that Mr Ward had yet to be paid for the work or had yet to realise the 34% share of the tenement.
The warden rejected both contentions. As to the first contention, the warden observed that the type of work undertaken by Mr Ward was, of itself, plainly work that could be used in the calculation of expenditure to fulfil an expenditure condition. The fact that the work was also the basis for earning an interest in the tenement did not disqualify it from constituting work that counted towards expenditure in order to fulfil the condition. The warden concluded that reg 96C(4)(b) is not concerned with the acquisition or sale of a tenement being used as a means of payment for work carried out on a tenement. It is only concerned to prevent costs associated with the acquisition or sale of a tenement, which of themselves are not in connection with mining, being included as expenditure simply on the basis that the costs are the means of acquisition of an interest in a tenement.
As to the second contention, the warden concluded that the undertaking of the work by Mr Ward created a liability on the part of Mr Lapelerie and that was sufficient to qualify as expenditure.
The warden also concluded that even if his construction of reg 96C(4)(b) was not correct, in the circumstances, he did not consider that the breach of the conditions would in any event be of sufficient gravity to justify forfeiture of the tenement.[3]
[3] See s 98(5) of the Act.
In light of those conclusions, the warden dismissed Mr Brosnan's application for forfeiture.
Ground of review
As part of the application for judicial review, Mr Brosnan seeks a writ of certiorari and a declaration that the warden committed a jurisdictional error in dismissing Mr Brosnan's application for forfeiture, and that the application for forfeiture has not been heard pursuant to s 98(3) of the Act.
Mr Brosnan advanced one ground of review in his application:
The First Respondent Mining Warden committed a jurisdictional error in dismissing the Applicant's Application for Forfeiture 537850 in that the Warden found the Other Party Tenement Holder had exceeded his minimum expenditure obligation in circumstances where the Warden took account of expenditure for work done by another person in the absence of any evidence of any instrument in writing authorising the other person to do so.
Mr Brosnan contended that, by reason of s 118A of the Act, in order to claim expenditure undertaken by a third party in satisfaction of the expenditure conditions, there must be a written agreement between the tenement holder and the third party. The existence of a written agreement is thus an essential precondition to any finding by the warden that the expenditure condition had been met. As there was no evidence of a written agreement, and indeed to the contrary, the evidence was that there was merely a verbal agreement, the warden committed a jurisdictional error in finding that Mr Lapelerie had satisfied the expenditure conditions.
It should be noted that the issue now agitated by Mr Brosnan was not raised by him, or anyone else, before the warden. However, on Mr Brosnan's case, it matters not that the issue was not raised before the warden. It is a matter of jurisdiction or legal power. The warden lacked power to make the decision because a jurisdictional precondition or fact was not present. Mr Lapelerie did not take issue with that aspect of Mr Brosnan's application.
In Strother v Taverner, Pritchard J summarised the position in respect of an application for judicial review of a decision of the warden under the Act:
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.[4]
[4] Strother v Taverner [2016] WASC 85 [44].
The predicate of Mr Brosnan's position on this application is that s 118A of the Act precluded the expenditure on the work undertaken by Mr Ward from being used towards satisfaction of an expenditure condition for ML 51/863, in the absence of a written instrument authorising Mr Ward to undertake the work. If that is correct, then other issues may arise as to the consequences of the absence of a written authority. But the first and threshold question is whether s 118A has the effect contended for by Mr Brosnan. If s 118A does not have the effect urged by Mr Brosnan, then that is the end of the matter; the application must fail. That threshold question is a matter of the proper construction of s 118A and is a matter that has not previously been considered by this court.

Statutory construction

I turn first to the relevant legal principles. Summarising the High Court in Thiess v Collector of Customs, the Court of Appeal in State of WA v Williams recently reiterated the correct approach to statutory construction as follows:
The principles of statutory construction are well settled. Statutory construction involves attribution of meaning to statutory text. The Court's task in that regard must begin and end with the statutory text as a whole considered in its context, including its objectively discerned statutory purpose.[5]

Legislative provisions

[5] State of WA v Williams [2022] WASCA 105 [40] citing Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] - [23].

Section 118A of the Act provides:
Tenement holder may authorise mining by third party
(1)In this section -
authorisation means an authorisation under subsection (2).
(2)The holder of a prospecting licence, exploration licence or mining lease (the relevant tenement) may, by instrument in writing, authorise another person to carry out mining of a kind authorised by the relevant tenement on the land the subject of the relevant tenement.
(3)An authorisation may be given subject to conditions specified in the authorisation.
(4) Mining carried out under an authorisation is to be regarded for the purposes of this Act as mining carried out by the holder of the relevant tenement.
(5) Expenditure on or in connection with mining carried out under an authorisation is to be regarded for the purposes of the prescribed expenditure conditions referred to in section 50, 62 or 82(1)(c) as expenditure by the holder of the relevant tenement.
(6) The giving of an authorisation does not affect the duties or obligations of the holder of the relevant tenement under this Act.
In order to understand the effect of s 118A on its proper construction, it is necessary to understand the section in its statutory context. That requires some understanding of the broader regime embodied in the Act.
Section 18 of the Act provides that all Crown land, not being Crown land that is the subject of a mining tenement, is open for mining and, as such, is land which may be the subject of an application for a mining tenement. Mining tenement is defined in s 8 of the Act to include a mining lease.
Part IV of the Act is entitled 'Mining tenements' and is divided into six divisions. The first five divisions are concerned with the different varieties of mining tenements.
Division 3 of the Act is entitled 'Mining lease' and contains the statutory provisions governing mining leases. Section 74 provides for an application for a mining lease and s 71 provides for the granting of a mining lease by the minister.
Within pt IV div 3, s 85 sets out the rights of a holder of a mining lease. Under s 85(1), the rights authorised by a mining lease include the right of the holder and the holder's agents and employees on the holder's behalf to -
(a) work and mine the land in respect of which the lease was granted for any minerals; and
(b) take and remove from the land any minerals and dispose of them;
…
(d)do all acts and things that are necessary to effectually carry out mining operations in, on or under the land.
By reason of s 85(2), the holder of a mining lease owns all minerals lawfully mined from the land under the mining lease.
Section 85(3) provides that the rights conferred by s 85 are exclusive rights for mining purposes in relation to the land in respect of which the mining lease was granted.
The definitions of 'mine', 'mining' and 'mining operations' are provided by s 8:
Mine, as a verb, includes any manner or method of mining operations;
Mining includes fossicking, prospecting and exploring for minerals, and mining operations;
Mining Operations means any 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 combusted or refined or dealt with for the purpose of obtaining any mineral or processed mineral resource therefrom whether it has been previously disturbed or not and includes -
(a) the removal of overburden by mechanical or other means and the stacking, deposit, storage and treatment of any substance considered to contain any mineral; and
(b) operations by means of which salt or other evaporites may be harvested; and
(c) operations by means of which mineral is recovered from the sea or a natural water supply; and
(da) operations by means of which a processed mineral resource is produced and recovered; and
(d) the doing of all acts incident or conducive to any such operation or purposes;
Section 82 provides for the imposition of conditions of a mining lease. Every mining lease is granted subject to conditions. Those conditions include that the holder shall comply with the prescribed expenditure conditions applicable to such land (unless an exemption has been granted).
Section 8 defines 'expenditure conditions' as follows:
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.
The prescribed expenditure conditions for a mining lease are found in reg 31. Regulation 31(1) provides that:
[T]he 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 $5000.
The final division of pt IV of the Act, div 6, deals with the surrender and forfeiture of mining tenements. Section 98 provides that where the requirements of the Act are not being complied with in respect of the expenditure conditions applicable to a mining lease, any person may apply for forfeiture of the lease. Section 98(4A) stipulates that where the warden finds that the holder of a mining lease has failed to comply with the expenditure conditions, the warden may recommend the forfeiture of the mining lease or a penalty not exceeding $10,000. Section 98(5) states that such a recommendation shall not be made unless the warden is satisfied that the non-compliance is in the circumstances of the case, of sufficient gravity to justify forfeiture.
Section 98 was the statutory provision under which Mr Brosnan brought his application for forfeiture of ML 51/863. It was also pursuant to s 98 that, as noted above, the warden found that there had not been a failure of compliance in respect of the expenditure for Mr Ward's work, and that in any event any non-compliance would not have been of sufficient gravity in the circumstances to warrant a recommendation under s 98(4A).
Part V of the Act contains a general assortment of provisions governing mining and mining tenements. It begins with s 104, which confers and governs the authority on any person or an agent of that person to enter on land for the purpose of marking out the land in connection with an application for a mining tenement. The subsequent provisions in Part V deal with various matters such as the process of marking out a tenement, priorities between applicants, the offence of destroying markings, rent and royalties payable, the ability of the minister to limit the minerals that may be mined on a mining lease, a broad reserve power on the minister to terminate or refuse an application for a mining tenement, the power of officers of the department to enter land for surveys, and the indefeasibility of an instrument of license or lease. The section immediately before s 118A is s 118, which requires an applicant for a mining tenement over land the subject of a pastoral lease or similar instrument to give the holder of that lease a map of the boundaries of the proposed mining tenement.
It is within that context, in pt V, that s 118A is placed. The provisions immediately following s 118A, that is ss 119 and 120, deal with the selling, assignment, encumbering and mortgaging of mining tenements. It is readily apparent that pt V is not directed to an overarching theme or subject but rather deals with a miscellaneous array of provisions that govern the various mining tenements.
Part V of the Act is followed by pt VI which deals with caveats, and pt VII which deals with compensation. Part VIII of the Act is entitled 'Administration of justice' and deals with the establishment and jurisdiction of the Wardens Court and related matters including appeals to the Supreme Court. Part IX of the Act is entitled 'Miscellaneous and regulations'. The 'regulations' include various offences. Two provisions were the subject of consideration in this judicial review application.
Section 155 creates the offence of mining without authority. It provides that subject to certain exceptions a person commits an offence and is liable to a fine if a person carries on mining on land unless the person is duly authorised under the Act or any other Act to do so.

Section 155 provides:
Offence of mining without authority
(1) Subject to subsection (2) a person shall not carry on mining on any land unless he is duly authorised under this or any other Act to do so.
Penalty:
(a)for an individual - a fine of $150 000 and, if the offence is a continuing one, a further fine of $15 000 for each day or part of a day during which the offence has continued;
(b) for a body corporate - a fine of $300 000 and, if the offence is a continuing one, a further fine of $30 000 for each day or part of a day during which the offence has continued.
(2) Subsection (1) does not apply in respect of mining operations carried on on any private land with the consent of the owner of the land if he is the owner of the mineral being mined on the land.
(3) A person who is convicted of an offence under this section is not thereby relieved from any other obligation or liability that he may have incurred by reason of having carried on unauthorised mining.
(4) A person who owns minerals in their natural state may take proceedings in any court of competent jurisdiction for the recovery of those minerals or their value from any person who unlawfully takes, removes or mines the minerals.
(5) Where a person is convicted of an offence against subsection (1) the court may, in addition to imposing the penalty under this Act in relation to the offence, order the offender to rehabilitate the land to the satisfaction of the Minister within the time specified in the order.
(6) A person who fails to carry out an order made under subsection (5) commits an offence and is liable to a penalty of $500 and in addition the court may require the offender to pay the costs of rehabilitating the land to the satisfaction of the Minister.
(7) Any sum specified in an order under subsection (6) constitutes a debt due to the crown and may be recovered in any court of competent jurisdiction.
Section 156 provides:
Offences
(1) A person who -
(a)takes or removes from the mining tenement of any other person any mineral or other mining product without the authority of that other person; or
(b)assaults, obstructs, resists or insults -
(i) any warden or any officer of the Department; or
(ii) any other person duly authorised under this Act to perform any act or duty, in the course of performance of that act or duty,
or who when required to do so by him fails to give to any such warden, officer or person information as to his name, address, or authorisation for being on any land or who gives false or misleading information; or
(c) when lawfully evicted or removed under this Act from any mining tenement, re-enters the mining tenement or retakes possession thereof; or
(d) prevents, resists or obstructs the taking or diverting of any water or the doing of any other act by any person acting in pursuance of an order of the warden's court,
commits an offence against this Act.
(2) Subsection (1)(a) does not apply to a person who removes a mineral in the exercise of the authorisation conferred by section 40D(1)(c).

Consideration

It is uncontroversial on this appeal that the expenditure was in respect of work undertaken by Mr Ward 'in mining on or in connection with mining on the lease'. That is, the work was of a nature that was capable of satisfying the conditions of the lease. It is also common ground that the work was not undertaken on the land of the lease itself, but by Mr Ward in Queensland. As I have already noted, Mr Brosnan's position in this application rests on the proposition that s 118A on its proper construction, precludes the inclusion of the expenditure in the absence of a written authority from Mr Lapelerie to Mr Ward to undertake that work.
Section 118A(2) is framed in permissive terms. Relevantly, it allows the holder of a mining lease, by a written instrument, to authorise a person who is not the holder of the lease to carry out mining on the land. Section 118A(3) provides that the authority can be given conditionally.
Subsections (4) and (5) then deal with particular consequences or effects of work undertaken under a written authority permitted by s 118A(2). Subsection (4) has the effect that such work is regarded as having been carried out by the holder of the mining lease. That is significant for example because it would prevent the person so authorised from contravening s 155 or s 156(1)(a). Subsection (5) provides that if the work carried out under the written authority is 'on or in connection with mining', then the expenditure for that work will contribute to the satisfaction of the expenditure condition under, relevantly, s 82(1)(c)
Subsection (2) refers to 'mining... on the land'. Section 8 provides that:
Land includes water; and also includes -
(a) the foreshore as defined in section 25(1)(a); and
(b) the sea bed and subsoil between the mean low water springs level and the inner limits of the coastal waters of the State as defined in section 16(1) and (2) of the Offshore Minerals Act 2003.
That definition of land is, on its face, not exhaustive. It simply clarifies that certain areas associated with the sea are encompassed by the term 'land'. It does not otherwise limit the meaning of the word land. But consistently with the ordinary meaning of land, the inclusive definition assumes that land refers to physical area. Similarly, the ordinary meaning of 'on the land' means on the physical land. The plain and ordinary meaning of 'mining on the land' therefore means the various activities encompassed by the definition of mining and mining operations that takes place on the physical land the subject of the tenement. It follows that subsection (2) is a permissive provision by which a tenement holder, by written instrument, may allow someone who is not the tenement holder to carry out any of those activities on the physical land the subject of the mining lease. On its plain and ordinary meaning, the subsection is not concerned with activity that does not take place on the physical land the subject of the mining lease.
Counsel for Mr Brosnan contended that the expression 'mining…on the land' encompassed work such as that done by Mr Ward, off the land. The submission focussed on the words 'to carry out mining of a kind authorised by the relevant tenement on the land the subject of the relevant tenement'. The argument appeared to be advanced on the following basis. The word 'mining' itself, by reason of the definition in s 8 is broad and is capable of referring to work off the land. That is clear from (at least) subsection (d) of the definition of 'mining operations'. The reference to 'mining' in s 118(2) is immediately followed by the words 'of a kind authorised by the relevant tenement on the land the subject of the relevant tenement'. The relevant tenement is a mining lease and the kind of mining authorised by a mining lease is found in s 85. Section 85(1) authorises the holder of a mining lease to do various things including, by subsection (1)(a), 'mine the land'. Again, using the broad definition in s 8 of 'mine', that would include activities off the land. Properly understood in light of those provisions, the words 'on the land' in s 118A(2) do not limit the mining to the physical land but rather are a refence to the tenement and the broad rights conferred by the tenement, which include mining activity both on and off the land. Counsel explained that the reference to 'the land, properly qualifies the tenement';[6] it does not have the effect of limiting the subsection to activity on the physical land. As I understood the submission, it was that the broad definition of 'mine' and 'mining' in s 8 of the Act, and the effect of s 85, compelled a reading of s 118A(2) such that the words 'on the land' qualified the words 'of a kind authorised by the relevant tenement' rather than the word 'mining'. The provision should, in effect, be read '[t]he holder of the relevant tenement may, by instrument in writing, authorise another person to carry out mining, of a kind authorised by the relevant tenement on the land, the subject of the relevant tenement'.
[6] Transcript, Alan Neville Brosnan v His Honour Warden John Francis O'Sullivan, Supreme Court at Perth, 27 April 2022, 38.
As part of that submission, counsel for Mr Brosnan invited a comparison of s 85(1)(a) and s 85(1)(b). Subsection (a) refers to the right to 'work and mine the land…' whereas subsection (b) refers to the right to 'take and remove from the land'. It was submitted that subsection (a) includes work off the land by virtue of the broad definition of 'mine' in s 8, whereas subsection (b) can only sensibly be a reference to the physical land. Once is it understood that the words 'mine the land' in s 85(1)(a) include work undertaken off the land, it is apparent that the words 'mining of a kind authorised by the relevant tenement on the land' in s 118A(2), also encompass work off the land and the subsection is not limited to work on the physical land.
By reference to s 85, including the phrase in s 85(3) 'in relation to the land', counsel for Mr Brosnan also submitted that the words 'the land' can have a different effect in different statutory provisions and the use of the words 'the land' in a provision of the Act do not necessarily denote activity limited to that which is undertaken on the physical land. When one considers the broad definition of 'mine' or 'mining' and its use in the different statutory provisions, it indicates that the expression 'mining… on the land' in s 118A(2) is not limited to activity on the physical land.
I do not accept the construction of s 118A(2) advanced on behalf of Mr Brosnan for the following reasons.
First, in my view, s 118(2) should be given its plain and ordinary meaning, that is, it refers to the mining authorised under the relevant tenement undertaken on the physical land.
Secondly, it is not necessary to read the words 'mine the land' in s 85(1)(a) as including work off the land because such work is in any event included within the rights provided for by s 85(1)(d). But even if the words 'mine the land' encompass the broader scope of activity contended for by counsel for Mr Brosnan and are not limited to work on the physical land, the words are quite different from the phrase 'from the land' or 'on the land'. As counsel for Mr Brosnan readily accepted, the words 'from the land' in s 85(1)(b) must mean the physical land. I am unable to accept that any sensible distinction can be drawn between 'from the land' in s 85(1)(b) and 'on the land' in s 118A(2).
Thirdly, the offence created by s 155 refers to a person who, without authority, carries on 'mining on any land'. In my view, that can only be a reference to the physical land. Counsel for Mr Brosnan, awake to the challenge presented by those words, suggested that an offence was indeed committed by a person who, without authority, undertook work encompassed by the broad definition of mining, that is, even if undertaken off the land. Thus, a desktop study of drilling results performed in a West Perth office in relation to a tenement in the Pilbara region would amount to an offence if undertaken without the authority of the tenement holder. Counsel for Mr Brosnan accepted that he was driven to that outcome because of the contended construction of s 118A, in which he adopted the broad definition of 'mining' and its application to s 85, so as to conclude that the expression 'mining on the land' in s 118A was not limited to activity on the physical land.
Counsel for Mr Brosnan was correct to concede that he was required to embrace that conclusion. A primary object of statutory construction is to construe the relevant provision so that it is consistent with the language of all the provisions of the statute: Mohamaadi v Bethune.[7]
[7] Mohamaadi v Bethune [2018] WASCA 98 [32].
However, in my view, that outcome serves to illustrate why the strained and unnatural reading of the words 'mining on the land' in s 118A is not correct. Counsel for Mr Brosnan candidly accepted that it was a surprising outcome to reach the point that an offence under s 155 is committed by activity not undertaken on the physical land, and for example, could be committed by someone undertaking a desktop study far away from the land.[8] The surprise in that outcome was sought to be calmed by a suggestion that although it would be an offence under s 155, it would not, in practice, be the subject of a prosecution because it would not be in the public interest. That submission need only be articulated to illustrate why it is an unsatisfactory approach to statutory construction. The more satisfactory approach is to give the words 'mining on land' in both s 118A and s 155 their ordinary meaning, that is, mining undertaken on the physical land the subject of the tenement. As senior counsel for the Other Party observed, quite apart from the natural meaning of the words in the provision, there is also no apparent purpose to be achieved by construing the offence in that extended way.
[8] ts 27 April 2022, 52.
Fourthly, to achieve the objective effected by Mr Brosnan's preferred construction, the statutory provision could have finished with the words 'authorised by the relevant tenement'. The words that appear after that are rendered unnecessary on Mr Brosnan's construction.
Fifthly, the evident purpose of s 118A(2) is to confirm that authority has been conferred when activity is undertaken on the physical land. That is important for other purposes such as the offences under s 155 and s 156. Mining on someone else's tenement is unlawful. There is an evident purpose in providing for a written authority to avoid the contravention. There is no evident necessity to extend that mechanism to work undertaken off the land.
In addition to those reasons, in my view, subsection (5) is consistent with what I consider to be the correct construction of s 118A(2). Subsection 118A(5) is cast in broader terms than s 118A(2). It is not limited to expenditure on mining on the land. The word 'land' does not appear in the subsection, but perhaps more importantly, it does not permit the inclusion of expenditure merely on 'mining' undertaken under a written authority. Rather, it allows any expenditure 'on or in connection' with mining carried out under the written authority to be regarded as expenditure in order to meet the expenditure conditions of the tenement. Thus, for example, the expenditure conditions may be satisfied not only by work carried out on the physical land under a written authorisation, but also by work undertaken 'in connection' with such work. That more expansive wording in respect of expenditure in subsection (5) in contrast to the wording in subsection (2), reinforces the notion that the statutory object of a written authority is directed to activity on the physical land itself.
It follows that in my view, the applicant cannot succeed on the threshold question of construction of s 118A. Section 118A(2) has no application where the work is not undertaken on the physical land. The applicant's contention in this matter relates solely to the work undertaken by Mr Ward which was, uncontroversially, not undertaken on the land itself. As the work in question in this matter was not mining on the land, s 118A does not arise. That work, in order to satisfy the expenditure conditions, did not itself need to be undertaken pursuant to a written authority.
I should note that the parties referred to two published decisions of the warden that concern the construction of s 118A; Pawson v Northwestern Mining Co P/L[9] and Dixon, Longman, Eucalyptus Gold Mines P/L & Regal Resources P/L v Lantex P/L.[10] In those matters, a question arose as to whether mining undertaken on the land without written authorisation may nevertheless, be included in the expenditure to satisfy an expenditure condition of a tenement. As those cases concerned work undertaken on the physical land, they are not relevant to the issue that arises in this matter.
[9] Pawson v Northwestern Mining Co P/L [2013] WAMW 8.
[10] Dixon, Longman, Eucalyptus Gold Mines P/L & Regal Resources P/L v Lantex P/L [2014] WAMW 6.
There is a further basis to decline the relief sought by Mr Brosnan. As I have noted, the warden found that even if the construction he adopted of reg 96C(4) was incorrect, he would have dismissed the application for forfeiture under s 98(5) of the Act because the non-compliance would not have been of sufficient gravity. That was because there was no question that work of sufficient value and of the requisite character had been undertaken; it would simply not have been able to 'count' because that work had also been used to acquire an interest in the tenement. In my view, it is likely, if not invariably the case, that the warden would adopt the same approach here. That is, even if, contrary to the construction of s 118A I have found, the Act did require a written authorisation to Mr Ward for the work he undertook, there was similarly no question that work of sufficient value and of the requisite character had been undertaken.
In the circumstances, in my view, the application must be dismissed, and I shall so order.

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

NW
Associate to Justice Solomon

6 DECEMBER 2022

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BROSNAN -v- O'SULLIVAN [2022] WASC 414 (S)
CORAM:   SOLOMON J
HEARD:   ON THE PAPERS
DELIVERED          :   21 DECEMBER 2022
PUBLISHED           :   21 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:

Practice and procedure - Costs - Judicial review - Whether court should order indemnity costs

Legislation:

Mining Act 1978 (WA), s 98

Result:

Application for indemnity costs dismissed
The other party pay the applicant's costs of the indemnity costs application

Representation:

Counsel:

Applicant	:	No appearance
Respondent	:	No appearance
Other Party	:	No appearance

Solicitors:

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

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

Brookvista Pty Ltd v Meloni [2009] WASCA 180
Brosnan v O'Sullivan [2022] WASC 414
Leng v Miller [2022] WASC 444
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)

SOLOMON J:

Introduction

On 6 December 2022, I dismissed an application by Mr Brosnan for judicial review of a determination by the mining warden under s 98 of the Mining Act 1978 (WA).
The details of that application were set out in my decision of Brosnan v O'Sullivan [2022] WASC 414 and need not be repeated. Upon publication of those reasons, the applicant and the other party, Mr Lapelerie, filed competing minutes of orders. The respondent filed a notice to abide in this matter and has not participated in the proceedings.
The parties are not in dispute that the applicant, as the unsuccessful party, should pay the other party's costs of the proceedings. The only matter in issue is whether those costs should be paid on an indemnity basis, as the other party has submitted, or on a party and party basis in the usual manner.
The other party filed written submissions in support of his application for indemnity costs on 8 December 2022. The applicant filed responsive submissions on 16 December 2022.

Indemnity costs

The principles in relation to indemnity costs are well established and were outlined in Swansdale Pty Ltd v Whitcrest Pty Ltd.[11] Recently, this court in Sino Iron Pty Ltd v Mineralogy Pty Ltd summarised and affirmed those principles.[12]
[11] Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10].
[12] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151 [15].

The other party submits that he is entitled to indemnity costs. In support of that submission, the other party has put on affidavit evidence that his solicitors put the applicant on notice, by way of letter dated 25 November 2021, that his case was likely to fail on the basis that:
[E]ven if [the warden] was wrong in concluding that the expenditure conditions had been satisfied, the warden would not have been satisfied that the matter was of sufficient gravity to justify forfeiture of the tenement.[13]
[13] Affidavit of Timothy Joseph Kavenagh (sworn 8 December 2022), TK1.
The other party submits that in light of my comments at [62] of Brosnan v O'Sullivan, I should find that the applicant's choice to continue with his application was conduct such that the other party should be entitled to indemnity costs.
The applicant resists that submission and argues that 'insofar that the judgment records a second, discretionary reason for refusing the applicant relief…the applicant says this does not mean his case was hopeless or his conduct reasonable or improper'.[14]
[14] Applicant's Submissions on Costs, 16 December 2022 [14].
It is opportune to make some comment on applications for indemnity costs generally.[15] An indemnity costs order reflects a sanction marking the court's disapproval of improper or unreasonable conduct.[16] The High Court has spoken of indemnity costs in circumstances involving some relevant delinquency on the part of the unsuccessful party.[17]
[15] Since preparing these reasons, I have had the pleasure of reading the recent decision of Master Sanderson in Leng v Miller [2022] WASC 444. The Master's comments at [10] - [13] are particularly timely.
[16] Swansdale Pty Ltd v Whitcrest Pty Ltd [10(10)]; Brookvista Pty Ltd v Meloni[2009] WASCA 180 [32].
[17] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [44]
Generally, indemnity costs orders should only be made in exceptional circumstances.[18] Simply losing a case is not conduct warranting sanction. On the contrary, people ought not to be discouraged from advancing arguments before a court, even novel arguments, for fear of sanction and disapproval. There is invariably a loser is every case; there is rarely a delinquent.
[18] Swansdale Pty Ltd v Whitcrest Pty Ltd [7].
Assertions that an opponent's case is entirely hopeless are regrettably ubiquitous in the contemporary legal landscape, accompanied by formulaic threats of indemnity costs. That approach is not infrequently reinforced after judgment with applications for indemnity costs accompanied by 'I‑told‑you‑so' letters in strident terms.
Human nature often breeds an impenetrable belief in a person's own position or argument. Such an attitude does not comfortably align with the vast complexities and uncertainties of the contemporary legal environment. Yet, regrettably, even legal training and experience may occasionally fail to ameliorate inflated self-confidence. But one need not be dizzied by the challenges of moral relativism to appreciate that an argument can be wrong, but not hopeless or otherwise deserving of sanction.
Returning from those general comments to this matter, the conduct of the applicant in bringing this application was not so unreasonable or improper as to warrant the making of an indemnity costs order. I therefore consider that the other party should have his costs on the usual basis.
As the sole issue for argument in respect of costs was the matter of indemnity costs, the applicant is the successful party in relation to the argument regarding costs. It is therefore appropriate that the other party should pay the applicant's costs in respect of that issue.
I therefore make the following orders.

Orders

1.The application for judicial review is dismissed.
2.Subject to Order 3, the applicant pay the other party's costs of the proceeding on a party/party basis, to be taxed if not agreed.
3.The other party pay the applicant's costs of the costs argument on a party/party basis, to be taxed if not agreed

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

IS
Associate to the Honourable Justice Solomon

21 DECEMBER 2022