Burke v Heylen - [2005] SAWC 2

WARDENS COURT OF SOUTH AUSTRALIA
BURKE V HEYLEN
of Dr A.J. Cannon Senior Warden
3 June 2005
Headnote: Mineral Lease, forfeiture, preliminary argument, sickness, lack of miners right, MARP not approved. Plaint dismissed, no costs.

:    ROBERT JOHN BURKE
:      UNREPRESENTED
:   KINGSFORD ROSS HEYLEN
:      MR M. EVANS
Third Party:   MS S. WATSON - PIRSA

Hearing Date/s:      3/6/05

File No/s:              04/615

Burke v Heylen
Dr A.J. Cannon Senior Warden
Wardens Court

This has been listed for me to make preliminary rulings to save costs. This judgment is extempore. The first point arises from the fact that the plaint for forfeiture here was filed with the court on 10 December 2004. The plaintor Mr Burke did not have a miner’s right at that time. He obtained miner’s right 8849 on 14 January 2005. The relevant section of the Act is s.70 which empowers this Court in these terms:
“The Wardens Court may upon application by any interested person ...recommend that the lease be forfeited.” An ‘interested person’ is defined as “someone who is the holder of a miner’s right”.
Mr Burke did not hold a miner’s right at the time of taking out the plaint. Can he successfully remedy that? . There is plenty of law to suggest a final ruling on that point would be adverse to Mr Burke. He had to have the miners right at the time when he commenced the legal proceedings to enforce the rights.
The second point is whether the sickness of Mr Heylen from 1 October onwards excused him from complying with any labour conditions on his lease. When I last granted him a suspension of six months, I intimated that no further suspension for ill health would be granted. Reg. 53 provides protection to holders of tenements in these terms: “The owner of a lease is protected from forfeiture ... due to illness.’ Notwithstanding that the point I made previously was that there was nothing to prevent him from arranging for others to comply with the labour conditions and having granted a suspension for six months due to his hip problems, gave him ample time in that period for him to arrange for others to work for him. Clearly if the remaining illness was related to related to his hip problems and the operation on his hi that would not excuse him from work in terms of reg.53.
However this is more complicated. I now have some additional information that indicates that the illness he presently is suffering from and has been from the beginning of October is pulmonary tuberculosis. I note that was diagnosed in November 2004. In other words he was aware of that illness well before the intimation I gave about arranging for alternative workers to be in place (note this is incorrect: see the end of the judgment). Simply there is not sufficient factual information for me to finally rule today whether the breach from October of failing to work is sufficient or is insufficiently explained or justified in terms of reg. 53 to protect Mr Heylen from forfeiture.
Just because someone is sick, it does not give them automatic relief under reg.53. To interpret the regulation that way would completely subvert the policy of the Act. There is uncertainty, in my view, as to Mr Heylen’s obligations and the consequence of his not working from October onwards.
Finally, I am asked to rule on the status of the obligation to work the lease. I have mentioned the decisions on this point in the Simnovec and later cases. A black letter interpretation of the lease conditions was applied. It overturned and did not apply the foundation principles on which this Court has operated for decades. That foundation principle is that the holder of a mining tenement is expected to work the tenement for all periods outside statutory holidays, unless there is a suspension of labour conditions and some other minor exception such as reg. 53, and failure to honour the work condition, renders the lease liable for a recommendation to the Minister that it be forfeited.
It can be seen from subsequent decisions that to the extent I am able I have continued to still apply the underlying policy that I have set out above. I am, of course, bound by the decisions of higher courts.
In relation to this lease, I think Mr Heylen has a good argument that his obligation to mine the lease is in accordance with clause 6(4) of the lease. That clause makes his obligation to mine in accordance with the first schedule. The first schedule requires that any mining operation must be in accordance with a developmental plan approved in writing by the Chief Inspector of Mines.
There is such a developmental plan. It was approved in relation to the previous holder of the tenement. When Mr Heylen took the lease over he received a written instruction from the Chief Inspector of Mines that that previous developmental plan no longer applied and that he was to submit a new plan. He can strongly argue that the effect of the direction from the Chief Inspector was to remove the obligation to work in accordance with the previous developmental plan. With some encouragement from the department he finally submitted his own developmental plan. I have asked for a report and have received a report on the status of that. The report criticises the plan in relation to detail. The plan submitted by Mr Heylen has never been approved. There is no indication that Mr Heylen has been advised that the program has never been approved or that it would not be approved in its present form, nor that he has been asked to correct the deficiencies. There is no record of Mr Heylen taking it upon himself to ensure the approval of the plan.
I have commented before and I comment again that the consequences of the Simnovec decision require the Chief Inspector of Mines to be rigorous in requiring developmental plans to be submitted and approved in relation to leases that have these standard form conditions, linking the obligation to work to the developmental plan.
This case highlights the need for that rigour. There is a real risk of there being no obligation to work if the Chief Inspector does not do his work promptly in ensuring approval of plans.
I have also observed and reiterate in relation to this case that, in my view, there is an obligation on the miner to seek the expeditious approval of a developmental plan to ensure that he can comply with the obligation to work a lease. A lease is not an exploration tenement; a lease is an operational tenement and leaseholders should use their best endeavours, and are obligated to use their best endeavours, to ensure a mining operation commences and is carried out on the tenement.
As to whether there is an existing obligation and has been an existing obligation on Mr Heylen to work, it is arguable. I do not make a final determination of that today because I do not have to. There is an argument that there is no obligation on Mr Heylen to work because there is no approved developmental plan. There is a countervailing argument that he is in breach through not having ensured that such a plan is in place and that there remains a general obligation for him to undertake activities on the lease, particularly in the circumstances of this case where his proposal involved work underground of a nature that has no obvious environmental or other risks. In those circumstances there’s a good argument that he should have done that.
I am told in a submission from the bar table that he says that he has done that and I note that by way of particulars. That is, that he has gone to the lease, gone down the shaft with the incline and worked underground. That is a matter for another day.
This matter came to the court as a preliminary point because new information in relation to the illness came to Mr Burke’s attention and he did not want to proceed and undertake the cost risk without a ruling on that point. It then became clear that he had his own problems of not having had the miner’s right in time and these other issues in relation to the work conditions have come out.
This is a matter that it would be imprudent for Mr Burke to proceed with at this point because of the factors I have set out above. So, without further ado I will, subject to one further order that I will make in a moment, dismiss this plaint.
The further matter is in relation to the future obligation to work. Because there is some ambiguity as to existence and extent of the obligation to work I intend to remove that ambiguity. I have considered my powers under regulation 53. I have noted the heading ‘Exemptions’ which apply to that. I turn now to regulation 50. That provides under the heading ‘Working conditions’:
“(3)Unless otherwise determined by the Warden's Court, a mining lease must, immediately after the Minister gives notice that the lease has been approved, be diligently worked ...”
it goes on to set out the requirement if the Wardens Court has not made a determination.
Because of the ambiguity here in relation to the work obligations I now exercise the power given to me by that regulation and order that Mr Heylen must organise work on his lease, commencing next Monday, of 100 hours per month and the nature of the work is to comply with his own proposed work of 24 November 2001.
I encourage the Inspector of Mines to do two things;
(1)in relation to this lease, to promptly attend to any requisitions he has in relation to that proposed work plan so that any problems he sees with it are drawn to the attention of the miner so the miner can attend to them; and to be rigorous in making sure the miner attends to them, and
(2)to apply the same rigour to every current lease in the State that has these conditions, to ensure that, in accordance with the policy of the Act and the regulations, holders of mining leases have a current obligation to work.
I reiterate that mining leases are an operational tenement, not an exploration tenement.
As to the future, Mr Burke can take his own advice on whether he now commences another plaint or whether he waits for a while to see whether work is done.
MR EVANS: Just in relation to the history that your Honour recited, it doesn’t affect the orders that are being made, but just as to the date of Mr Heylen’s illness, which was the tuberculosis which he had in October and November, it was not diagnosed till November, that was November ’04. I may have misunderstood your Honour, because your Honour indicated that to Mr Heylen on the suspension application on 7 April 2004.
WARDEN: I have my dates mixed and I am glad to be corrected because I was wrong. I clarify that on the certificates I have, Mr Heylen was not aware of his tuberculosis until after his previous suspension when I gave the intimation about his health in the context of his hip problems and that strengthens his case that regulation 53 applies because it was a new and different illness.
MR EVANS: The only other matter was just a question of costs. The court has a discretion in relation to costs. My instructions are to ask for costs. Mr Burke did not have standing to bring the plaint and it is been dismissed.
WARDEN: In relation to costs, there is an application for costs. One aspect of Mr Burke’s problem is the failure to have a miner’s right, but against that he sensibly called this matter on to address another aspect of it, which was whether it was a supervening illness and whether regulation 53 protected Mr Heylen. Having taken that step to minimise costs risks. In my view, he should not be punished with a cost order. To do so would be a serious discouragement to people seeking, as the Act and regulations encourage them, to ensure that those who are not working lose their leases.
So, in all the circumstances, there is no order as to costs.