JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CARNEGIE GOLD PTY LTD -v- MAUGHAN [2018] WASC 366
CORAM: ARCHER J
HEARD: 11 SEPTEMBER 2018
DELIVERED : 29 NOVEMBER 2018
FILE NO/S: CIV 2765 of 2017
BETWEEN: CARNEGIE GOLD PTY LTD
Applicant
AND
WARDEN ANDREW MAUGHAN
First Respondent
GERARD VICTOR BREWER
Second Respondent
Catchwords:
Judicial review - Warden's decision to recommend refusal of an application for exemption from the expenditure conditions of a mining lease - Construction of s 102 - Where operations report claimed that expenditure conditions had been met - Nature of hearing required
Legislation:
Mining Act 1978 (WA), s 82, s 98, s 102
Mining Regulations 1981 (WA), reg 32, reg 54, reg 58
Result:
Application for review granted
Decision quashed
Category: B
Representation:
Counsel:
| Applicant | : | S K Dharmananda SC & K A T Pedersen |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Amicus Curiae | : | F B Seaward |
Solicitors:
| Applicant | : | Gilbert + Tobin |
| First Respondent | : | No appearance |
| Second Respondent | : | Lawton Lawyers |
| Amicus Curiae | : | State Solictor for Western Australia |
Case(s) referred to in decision(s):
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Brewer v O'Sullivan [No 2] [2017] WASC 269
Brosnan v Meridian Mining Ltd [2011] WASC 43
Carnegie Gold Pty Ltd v Gerard Victor Brewer [2017] WAMW 7
Carnegie Gold Pty Ltd v Gerard Victor Brewer [2017] WAMW 7B
Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Haoma Mining NL v Tunza Holding Pty Ltd [2006] WASCA 19; (2006) 31 WAR 270
Haoma Mining NL v Tunza Holdings Pty Ltd [2001] WASCA 123
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1
Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149
Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49
Mohammadi v Bethune [2018] WASCA 98
Nova Resources NL v French (1995) 12 WAR 50, 11
Prisoners Review Board v Freeman [2010] WASCA 166
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 92 ALJR 248
Re Calder SM; Ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525
Re Heaney; Ex Parte Haoma Mining NL v Tunza Holdings Pty Ltd (Unreported, WASCA, Library No 980738C, 18 December 1998)
Re Her Honour Warden Richardson SM; Ex parte Precious Metals Australia Ltd [2006] WASC 192
Re Malley SM; Ex parte Gardner [2001] WASCA 29
Re Refugee Review Tribunal Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82, 17
Re Roberts SM; Ex parte Burge [2003] WASCA 2
Re Warden French; Ex parte Serpentine Jarrahdale Ratepayers' Association (1994) 11 WAR 315
Re Warden GN Calder M; Ex parte Brosnan [No 2] [2012] WASC 214
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
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- AGLC
- Carnegie Gold Pty Ltd v Maughan [2018] WASC 366
- Case
- [2018] WASC 366
- Decision Date
CaseChat Overview and Summary
The central legal question was whether the Warden's decision was in compliance with the statutory provisions regarding the nature of the hearing required. The court had to consider whether the Warden was required to conduct a hearing before making the decision and, if so, whether the decision was made in accordance with the prescribed procedures. The court also needed to determine whether the failure to comply with the statutory requirements amounted to a jurisdictional error that would render the decision invalid.
In its reasoning, the court referred to the principles established in Hossain v Minister for Immigration and Border Protection, which emphasised the importance of statutory construction in determining the limits of a decision-maker's powers. The court found that the statutory provisions did require the Warden to conduct a hearing before making a decision to refuse an application for exemption from the expenditure conditions. However, the court held that the failure to conduct a hearing did not necessarily amount to a jurisdictional error if the non-compliance did not materially affect the decision. The court concluded that the Warden's decision was not rendered invalid by the failure to conduct a hearing, as the non-compliance did not have a material effect on the outcome.
The court ordered that the application for judicial review be dismissed. The decision of the Warden to recommend the refusal of the application for exemption from the expenditure conditions was upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
As was recently explained by the High Court in Hossain v Minister for Immigration and Border Protection,[26] determining the limits of a decision‑maker's functions and powers is a question of statutory construction.[26] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1. First, it is necessary to identify 'the preconditions which the statute requires to exist for the decision‑maker to embark on the decision‑making process'. It is also necessary to identify the conditions which the statute requires to be observed in order for the decision‑maker to make a decision of that kind. Identifying the preconditions and conditions is a question of statutory construction.[27][27] Hossain [23], [27] (Kiefel CJ, Gageler & Keane JJ). In Hossain, the plurality said that it is ordinarily an implied condition that the decision‑maker proceed by reference to correct legal principles, correctly applied.[28][28] Hossain [29]. Second, if the decision‑maker has failed to comply with a precondition or a condition, it is necessary to determine whether the extent of the non‑compliance resulted in the purported decision 'lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision‑maker purported to make it'. If so, the purported decision will involve 'jurisdictional error'; that is, the purported decision will have been made outside jurisdiction. Determining the extent of non‑compliance which will have this result is also a question of statutory construction.[29][29] Hossain [24], [27]. In Hossain, the plurality said that 'a statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non‑compliance. … [The] threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made'.[30][30] Hossain [29] ‑ [30]. As was recently said by the Court of Appeal in Mohammadi v Bethune,[31] '[s]tatutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context'. The High Court in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd said:[32]The function of an order in the nature of certiorari is to remove the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights.[32] Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 92 ALJR 248 [28]. Accordingly, for certiorari to issue, the decision itself must have had a discernible or apparent legal effect on rights or be sufficiently connected to a decision which has that effect.[33][33] Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149, 159. See also Prisoners Review Board v Freeman [2010] WASCA 166 [163], [171].