Carnegie Gold Pty Ltd v Maughan
[2018] WASC 366
•29 NOVEMBER 2018
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
Siberia Mining Corporation Pty Ltd v Wilson [2015] WASC 322
Strahan v Brennan [2014] WASC 190
Strother v Tavener [2016] WASC 85
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
ARCHER J:
Introduction
The applicant (Carnegie Gold) holds two mining leases. On 6 February 2015, Carnegie Gold applied for an exemption from expenditure conditions in relation to each lease, under s 102 of the Mining Act 1978 (WA) (Act). The second respondent, Mr Brewer, filed objections to the exemption applications.
On 15 June 2017, the mining warden recommended to the Minister that the exemption applications be refused. This was because the warden considered that it was not open to Carnegie Gold to apply for an exemption from the expenditure conditions in circumstances where Carnegie Gold had claimed to have met the minimum expenditure commitment for the relevant year in 'Form 5 Expenditure Reports'.
Carnegie Gold applies for judicial review of that decision. It seeks a writ of certiorari and a declaration that the decision is of no force and effect.
The application alleges that the warden:
1.erred in law as to the proper interpretation of s 102 of the Act, by finding that no application for exemption from expenditure can be granted where an applicant for exemption has lodged a Form 5 Expenditure Report [also known as an 'operations report'] in which it has recorded expenditure of an amount that meets or exceeds the minimum expenditure commitment for the relevant year; and
2.fell into jurisdictional error by purporting to exercise his jurisdiction to make the recommendation without hearing the exemption applications and the objections to the exemption applications, contrary to the procedure provided in s 102 of the Act and the requirement of procedural fairness.
The warden and second respondent gave notice that they will abide the decision of the court, save as to costs.
The Attorney General of Western Australia sought, and was granted, leave to appear as amicus curiae. Counsel for the Attorney General filed extensive written submissions and appeared at the hearing. I was greatly assisted by this.
The primary issues that arise for determination are as follows.
(1)On the proper construction of s 102 of the Act, can an application for exemption from expenditure be granted where the applicant has lodged an operations report in which it has recorded expenditure of an amount that meets or exceeds the minimum expenditure commitment for the relevant year?
(2)Was the warden required to hear the exemption applications and the objections to the exemption applications? If so, did the warden fail to meet this requirement?
(3)Did the warden fail to accord procedural fairness?
As will be seen, the answer to each question is 'yes'.
Before dealing with the issues, I will set out the legislative framework, the factual background, and the relevant legal principles.
Legislative framework
Under the Act, various mining tenements may be granted, including mining leases. Mining leases are subject to expenditure conditions, unless an exemption is granted.[1] If the expenditure conditions are not met, an application may be made for forfeiture of the lease. Tenement holders must also lodge, among other things, 'operations reports', sometimes called 'Form 5s' or 'expenditure reports'.[2]
Expenditure conditions
[1] Section 82(1)(c) of the Act.
[2] Sections 82(1)(e) and 115A of the Act and reg 32 and Form 5 of the Mining Regulations 1981 (WA) (Regulations).
The expenditure conditions[3] for a mining lease are prescribed in reg 31 of the Mining Regulations 1981 (WA) (Regulations). Regulation 31 relevantly requires the holder of a mining lease to 'expend or cause to be expended in mining on or in connection with mining on the lease' a specified amount 'during each year of the term of the lease'. Regulation 96C contains specific provision relating to allowable and non‑allowable expenditure for the purposes of calculating expenditure under a lease.
Operations reports and audits
[3] 'Expenditure conditions' are defined in s 8 of the Act to mean 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.
Operations reports must be lodged annually[4] and they must be in the form specified in Form 5 of the Regulations. Form 5 includes a section for the itemisation of expenditure on mining activities.
[4] Regulation 32 and Form 5 of the Regulations.
The Minister may require the holder of a mining tenement to file an audit statement, or cause an audit statement to be filed, for the purposes of verifying the expenditure amount shown in an operations report. If the amount of expenditure shown in an audit statement differs from the amount shown in the operations report, the Minister may determine that the audit amount is to be regarded as the expenditure amount for the period to which the operations report relates for the purposes of the Act.[5]
Forfeiture of a mining lease for failing to comply with expenditure conditions
[5] Section 115B of the Act.
The holder of a mining lease is liable to have the lease forfeited if it is in breach of, among other things, any of the conditions of the lease.[6]
[6] Section 82(1)(g) of the Act.
Section 98 of the Act allows applications to be made for forfeiture of mining leases where expenditure conditions have not been met. It relevantly provides:
(1)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.
…
(3)The application for forfeiture shall be heard by the warden.
(4A)When the warden finds that the holder of an exploration licence or lessee of the mining lease has failed to comply with such requirements as are mentioned in subsection (1), 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.
…
(5)A recommendation shall not be made under subsection (4A) unless the warden is satisfied that the non‑compliance with such requirements is, in the circumstances of the case, of sufficient gravity to justify the forfeiture.
(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.
After receiving the recommendation from the warden, the Minister may declare the mining lease forfeited, impose a penalty or determine not to forfeit the mining lease or impose any penalty.[7]
[7] Section 99(1) of the Act.
If the Minister declares the mining lease forfeited, the applicant for forfeiture has a right in priority to mark out and/or apply for a mining tenement upon the whole or part of the land that was the subject of the forfeited lease.[8]
Exemption from expenditure conditions
[8] See s 100(2) of the Act.
The holder of a mining lease can apply for an exemption from the expenditure conditions under s 102 of the Act. Section 102 provides:
(1)Subject to this Act, on an application (an application for exemption) made, as prescribed, by the holder of a mining tenement (other than a retention licence) or his authorised agent prior to the end of the year to which the proposed exemption relates, or within the prescribed period after the end of that year, the holder may be granted a certificate of exemption in the prescribed form totally or partially exempting the mining tenement to which the application relates from the prescribed expenditure conditions relating thereto, in an amount not exceeding the amount required to be expended -
(a)in respect to any mining tenement other than a mining lease, in any one year; and
(b)in respect to a mining lease, subject to subsection (7), in a period of 5 years.
(1a)An application for exemption may relate to more than one mining tenement.
(2)A certificate of exemption may be granted for any of the following reasons -
(a)that the title to the mining tenement is in dispute; or
(b)that time is required to evaluate work done on the mining tenement, to plan future exploration or mining or raise capital therefor; or
(c)that time is required to purchase and erect plant and machinery; or
(d)that the ground the subject of the mining tenement is for any sufficient reason unworkable; or
(e)that the ground the subject of the mining tenement contains a mineral deposit which is uneconomic but which may reasonably be expected to become economic in the future or that at the relevant time economic or marketing problems are such as not to make the mining operations viable; or
(f)that the ground the subject of the mining tenement contains mineral ore which is required to sustain the future operations of an existing or proposed mining operation; or
(g)that political, environmental or other difficulties in obtaining requisite approvals prevent mining or restrict it in a manner that is, or subject to conditions that are, for the time being impracticable; or
(h)that -
(i)the mining tenement is one of 2 or more mining tenements (combined reporting tenements) the subject of arrangements approved under section 115A(4) for the filing of combined mineral exploration reports; and
(ii)the aggregate exploration expenditure for the combined reporting tenements would have been such as to satisfy the expenditure requirements for the mining tenement concerned had that aggregate exploration expenditure been apportioned between the combined reporting tenements.
(2a)In subsection (2)(h) -
aggregate exploration expenditure means expenditure -
(a)on, or in connection with, exploration for minerals on the combined reporting tenements; and
(b)worked out in a manner specified in the regulations.
(3)Notwithstanding that the reasons given for the application for exemption are not amongst those set out in subsection (2), a certificate of exemption may also be granted for any other reason which may be prescribed or which in the opinion of the Minister is sufficient to justify such exemption.
(4)When consideration is given to an application for exemption regard shall be had to the current grounds upon which exemptions have been granted and to the work done and the money spent on the mining tenement by the holder thereof.
(5)An application for exemption -
(a)where an objection to the application is lodged, shall be heard by the warden; but
(b)otherwise, shall be forwarded to the Minister for determination by the Minister.
(6)The warden shall as soon as practicable after the hearing of the application transmit to the Minister for his consideration the notes of evidence and any maps or other documents referred to therein and his report recommending the granting or refusal of the application and setting out his reasons for that recommendation.
(7)Where the warden finds that the reasons given by the holder of the mining lease are sufficient to justify the granting of a certificate of exemption and so recommends, or if the Minister is satisfied whether or not a recommendation is made by the warden, the Minister may grant a certificate of exemption in an amount not exceeding the amount required to be expended in respect of the mining lease in the period of 5 years from the commencement of the year to which the application relates.
The Regulations prescribe the form and other requirements of an application for an exemption and a certificate of exemption.[9]
[9] Regulations 54 and 58 and Forms 18 and 19 of the Regulations.
Upon the granting of a certificate of exemption, the tenement holder is deemed to be relieved, to the extent, and subject to the conditions specified in the certificate, from its obligations under the prescribed expenditure conditions relating to the mining tenement.[10]
Purpose of the Act
[10] Section 103 of the Act.
In Nova Resources NL v French,[11] the Full Court reviewed a warden's decision to order the forfeiture of a prospecting licence and to recommend the forfeiture of a mining lease. In relation to the purpose of the Act, the court said:[12]
The primary object, so far as it impacts on this case, is to ensure as far as practicable that land which has either known potential for mining or is worthy of exploration will be made available for mining or exploration. It is made available subject to reasonably stringent conditions and if these, including expenditure conditions, show that the purposes of the grant are not being advanced, then the Act and regulations make provision for others who have an interest in those purposes on that land to apply for forfeiture so they may exploit the area. There is power for a tenement holder to seek exemption from complying with certain conditions for cause, and one assumes that it is not only for record purposes that a Form 5 must be filed each year.
[11] Nova Resources NL v French (1995) 12 WAR 50.
[12] Nova Resources (57 ‑ 58) (Rowland J, with whom the other judges agreed).
In Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum,[13] the Court of Appeal noted that the primary object identified in Nova Resources was not the only object of the Act. The court said that other objects or purposes identified by the courts include (footnotes omitted):[14]
1.identifying circumstances in which a tenement holder will be allowed to hold a mining tenement without mining or giving it up for others who may wish to actively mine the land.
2.protecting tenement holders who have defaulted in compliance with the Act in some minor respect, or because of some circumstances beyond the control of the tenement holder, against loss of the tenement.
3.providing that, in general, the holder of a mining tenement should carry out the relevant mining activity on the tenement.
[13] Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425.
[14] Forrest [96].
Factual background
The factual background was helpfully summarised in Carnegie Gold's written submissions, with useful additions provided in the Attorney General's submissions.[15] The following summary reproduces, with some minor changes, those submissions.
[15] Applicant's Outline of Submissions in Support of an Application for Judicial Review dated 31 January 2018 (Carnegie Gold's Submissions) [9] ‑ [29], Outline of Submissions of Amicus Curiae dated 9 August 2018 [7].
Carnegie Gold holds mining leases M16/470 and 30/102 (Mining Leases). The relevant expenditure years for the Mining Leases ended on 8 and 10 December 2014 respectively.
On 12 January 2015, Mr Brewer lodged applications for forfeiture of each of the Mining Leases.
On 20 January 2015, Carnegie Gold lodged responses to the forfeiture applications. By the responses, Carnegie Gold denied that it had failed to comply with the expenditure requirements for the Mining Leases, stated that the sum to be reported in the operations reports for the expenditure year was expected to be in excess of the minimum requirement for each of the Mining Leases, and stated that, in any event, any failure to comply with the expenditure requirements was not of sufficient gravity to justify forfeiture of the Mining Leases.
On 6 February 2015, Carnegie Gold lodged operations reports for each of the Mining Leases. The reports asserted that there had been expenditure in excess of the required minimum expenditure as follows:
(a)M16/470: total expenditure of $61,325 compared with the required expenditure of $57,700; and
(b)M30/102: total expenditure of $15,500 compared with the required expenditure of $11,600.
On the same date, Carnegie Gold also lodged applications for an exemption from expenditure conditions in respect of each Mining Lease. The applications relied upon the following grounds:
(a)time is required to evaluate work done on the mining tenement, to plan future exploration or mining or raise capital therefor (s 102(2)(b));
(b)the ground the subject of the mining tenement contains a mineral deposit which is uneconomic but which may reasonably be expected to become economic in the future or that at the relevant time economic or marketing problems are such as to not make the mining operations viable (s 102(2)(e));
(c)the ground the subject of the mining tenement contains mineral ore which is required to sustain the future operations of an existing or proposed mining operation (s 102(2)(f)); and
(d)for any other reason which may be prescribed or which in the opinion of the Minister is sufficient to justify such exemption, including (but not limited to) the Company's management structure and procedural operations (s 102(3)).
On 4 July 2016, Mr Brewer lodged objections to the exemption applications, disputing the genuineness of the grounds on which they had been sought.
On 22 August 2016, Carnegie Gold lodged detailed particulars of the matters relied upon in support of the grounds. The particulars also referred to s 102(2)(h) of the Act (in relation to aggregate expenditure on multiple tenements), although that was not a ground relied upon by Carnegie Gold in its exemption applications. In addition, the particulars asserted there was an excess in expenditure.
On 23 September 2016, Mr Brewer lodged an interlocutory application (Interlocutory Application) seeking an order that the exemption applications be dismissed on the basis that they were an abuse of process.
On 9 November 2016, by consent of the parties, the warden ordered that the question to be determined pursuant to the Interlocutory Application was as follows:
Whether, on a proper construction of the Mining Act 1978 (WA), a holder of a mining tenement may apply for, and be granted, pursuant to s 102 Mining Act 1978 (WA), an exemption from the expenditure conditions relating to the tenement in circumstances where that tenement holder has lodged [an operations report] in which it has recorded expenditure of an amount that meets or exceeds the minimum expenditure commitment for the relevant year.
I will refer to this question as 'the Preliminary Issue'.
Both parties filed written submissions on the Preliminary Issue, and the matter was heard on 6 February 2017.
On 24 March 2017, the warden delivered written reasons in which he determined that the Preliminary Issue should be answered in the negative (First Decision).[16]
[16] Carnegie Gold Pty Ltd v Gerard Victor Brewer [2017] WAMW 7.
The warden reached this view primarily because of the ordinary meaning of the word 'exemption'. The warden considered that, where the applicant had submitted an operations report certifying that the expenditure condition had been met, an application for exemption could not specify in the prescribed form the amount for which exemption was sought.[17] The warden considered it would be absurd 'to suggest you could be exempt from spending money you have already spent'.[18]
[17] First Decision [26].
[18] First Decision [30].
The warden considered that Carnegie Gold's construction would undermine the self‑regulation imposed on the industry by the requirement to file operations reports. It would permit a tenement holder to 'have a bet each way' by saying 'I have met my obligation' on the one hand and 'I haven't met my obligation and seek an exemption' on the other.[19]
[19] First Decision [37] ‑ [41].
Subsequently, the warden ordered that Mr Brewer file submissions as to the future conduct of the proceedings and costs, and that Carnegie Gold file submissions in response. On 22 May 2017 the warden heard from the parties as to the future conduct of the proceedings.
On 15 June 2017, the warden delivered written reasons in which he said that there would be no further hearing of the exemption applications and recommended to the Minister that the applications be refused (Second Decision).[20]
[20] Carnegie Gold Pty Ltd v Gerard Victor Brewer [2017] WAMW 7B.
In the Second Decision, the warden recognised the statutory obligation to hear an application for exemption.[21] However, the warden considered he had discharged that obligation by permitting the applicant to be heard on the Preliminary Issue. Having determined the question adversely to the applicant, the warden considered that the applicant had no 'standing' to 'ventilate matters further'. This was because he considered, in effect, that it was not open to Carnegie Gold to seek an exemption when it had claimed to have met the expenditure conditions. He said that, regardless of what further grounds might be argued by the applicant, the Minister would have to refuse the applications for exemption, as a matter of law.[22]
[21] Second Decision [9].
[22] Second Decision [18].
Legal principles
Judicial review
A court may grant certiorari to 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.[23]
[23] Strother v Tavener [2016] WASC 85 [44].
In determining whether there was an error of law on the face of the record, I am bound to treat the record as including the warden's reasons.[24]
[24] Re Roberts SM; Ex parte Burge [2003] WASCA 2 (Burge) [57] ‑ [59] and Haoma Mining NL v Tunza Holdings Pty Ltd [2001] WASCA 123 (Haoma Mining 2001) [60] (Wallwork J), [21], [23] (Malcolm CJ & Pidgeon J agreeing). See also Brosnan v Meridian Mining Ltd [2011] WASC 43 [24] and Re Warden GN Calder M; Ex parteBrosnan [No 2] [2012] WASC 214 [65].
In Re Refugee Review Tribunal; Ex parte Aala,[25] Hayne J explained the nature of a jurisdictional error.
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
[25] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163]. This statement was applied in Forrest [86] ‑ [88].
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'.
Certiorari
[31] Mohammadi v Bethune [2018] WASCA 98 [31]. See also all of [31], and [32] - [36].
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].
The recommendation by a warden that an exemption application be refused where forfeiture has been sought has the capacity to affect the rights of the applicant so as to permit the remedy of certiorari.[34]
Evaluating a magistrate's reasons
[34] Haoma Mining 2001 [58] ‑ [60] (Wallwork J), [21], [23] (Malcolm CJ & Pidgeon J agreeing); Siberia Mining Corporation Pty Ltd v Wilson [2015] WASC 322 [20]. See also Hot Holdings (174).
When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[35] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly[36]
it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[35] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[36] Strahan [90].
In my view, this applies to magistrates when acting as wardens.
Proper construction of s 102 - first issue
The first issue for determination is whether, on the proper construction of s 102 of the Act, an application for exemption from expenditure may be granted where the applicant has lodged an operations report in which it has recorded expenditure of an amount that meets or exceeds the minimum expenditure commitment for the relevant year.
Both Carnegie Gold and the Attorney General submitted that the answer to this question is 'yes', contrary to the warden's construction.
Two potential constructions
Two potential constructions of s 102 of the Act are suggested by the Preliminary Issue.
First, an application for exemption from expenditure cannot be granted where an applicant for exemption has lodged an operations report in which it has recorded expenditure of an amount that meets or exceeds the minimum expenditure commitment for the relevant year (Narrow Construction). This was the construction adopted by the warden.
Alternatively, an application for exemption from expenditure can be granted in those circumstances. The question of whether an expenditure condition has, in fact, been satisfied, will be a relevant consideration, but the fact of its satisfaction is not a disentitling factor either to the making or granting of an exemption application under s 102 of the Act (Broad Construction). Carnegie Gold and the Attorney General submit that this is the proper construction.
Analysis
No express words
There is nothing in the text of the Act or Regulations which precludes a tenement holder from applying for exemption in circumstances where the minimum expenditure condition has been met or claimed to have been met.
If the legislature had intended to preclude an application for exemption in these circumstances, it would have been simple to achieve that. As pointed out by Carnegie Gold, s 102(1) could have been prefaced with words to the effect of 'where the [expenditure or] reported expenditure is below the minimum expenditure condition for the year to which the operations report relates'. The legislature did not do this.
The only express requirement for a valid application under s 102 is the requirement that the application be made 'as prescribed'. The relevant requirements are that:[37]
(1)the application must be made in the prescribed form, Form 18. Form 18 requires, among other things, the tenement holder to state the 'Amount of expenditure for which exemption is sought';
(2)the application must be made by a particular time;
(3)the prescribed fee must be paid; and
(4)reasons for the application must be lodged.
[37] Section 102(1) of the Act and regs 54(1), (1a) and (3).
Form 18, and the Regulations as a whole, do not prohibit an applicant from specifying an amount where the applicant has submitted an operations report certifying that expenditure obligations have been met. As pointed out by the Attorney General, the form simply provides a space for an amount to be inserted.
The power of the Minister to grant an exemption certificate is conditional upon a recommendation from the warden that a certificate of exemption should be granted, or upon the Minister being satisfied that the reasons given by the holder of the mining tenement are sufficient to justify the granting of a certificate of exemption.[38]
[38] Section 102(7).
A warden considering whether to recommend an exemption, and the Minister deciding whether to grant an exemption, must have regard to those of the current grounds relied upon as have previously resulted in the grant of an exemption or exemptions in respect of the tenement under consideration. A warden and the Minister must also have regard to the work done and the money spent on the mining tenement by the holder.[39] While the second mandatory consideration shows that the money spent is relevant, there is no requirement that the amount spent must be less than the required expenditure before a recommendation or decision can be made to grant an exemption.
[39] Section 102(4) and Haoma Mining NL v Tunza Holding Pty Ltd [2006] WASCA 19; (2006) 31 WAR 270 [57] and [60].
If granted, a certificate of exemption:
(1)must be in the prescribed form, Form 19. That form requires the Minister to state the '[a]mount of expenditure (for each mining tenement affected)';
(2)may totally or partially exempt the holder from the expenditure conditions; and
(3)in respect to a mining lease, must be in an amount not exceeding the amount required to be expended in a period of five years, subject to s 102(7).[40]
[40] Section 102(1) and reg 58.
Again, there is no express prohibition contained in Form 19 or the Regulations as a whole against a holder being made exempt from expending money they have already spent (or claimed to have spent). The form simply provides a space for an amount to be inserted.
Both Carnegie Gold and the Attorney General submitted that it was significant that there was no express requirement that an application for an exemption from the expenditure requirements can only be made and granted in circumstances where the amount expended, or claimed to be expended, is less than that required. Both noted that, if this were the intention of the Act, then words to that effect could have been included.
I accept these submissions. The words of the Act and the Regulations do not compel or support the Narrow Construction.
Context and purpose
Further, as I will explain, the context and purpose do not support the Narrow Construction.
Reasons for exemption
The grounds on which an exemption may be granted are set out s 102(2) and (3) of the Act. Of those, only the ground in s 102(2)(h) focuses on under‑expenditure. I will refer to that ground as the 'project exemption ground'.
The project exemption ground allows certain expenditure[41] to be apportioned where there is a group of tenements in respect of which combined mineral exploration reports have been permitted to be filed. It allows the expenditure on the exploration of multiple mining tenements within a group to be aggregated, to facilitate substantial investments in the exploration of one of the tenements without risking the forfeiture of the others.[42]
[41] Excluding expenditure in connection with mining operations, as distinct from expenditure on exploration - see Brewer v O'Sullivan [No 2][2017] WASC 269 [188].
[42] Brewer [184] ‑ [189].
The project exemption ground, unlike each other ground:
(1)assumes that expenditure on an individual tenement is less than the expenditure condition requires;
(2)relies upon the aggregate amount of expenditure for the group of tenements being known and being sufficient to meet the expenditure requirements if apportioned between all tenements; and
(3)is applicable only in a retrospective application.
As was encapsulated by the Attorney General, the other grounds in s 102 cover practical mining realities or external influences which have been recognised by the legislature as relevant considerations in assessing the reasonableness of requiring a tenement holder to comply with the usual expenditure conditions. These other grounds do not expressly state that the reason only applies if expenditure on a tenement is less than required by the expenditure conditions. They do not rely on the holder being able to specify the precise amount expended.
In addition, some of the grounds other than the project exemption ground are expressed very broadly. In particular, s 102(3) of the Act extends to 'any other reason … which in the opinion of the Minister is sufficient to justify' an exemption.
The grounds on which an exemption may be granted do not support the Narrow Construction.
Timing of applications
The project exemption ground is the only ground limited to retrospective applications. Indeed, under s 102(7) of the Act, the holder of a mining lease can obtain an exemption for five years from the commencement of the year to which the application relates. In other words, an exemption can be granted in relation to years in the future.
Accordingly, at the time an application for exemption is made (other than one that relies on the project exemption ground), an applicant may not know how much it has expended in any one year and may not yet have filed its operations report.
Further, an application for exemption can be made after a forfeiture application has been made.
These matters do not support the Narrow Construction.
Forfeiture applications
The most powerful reason for rejecting the Narrow Construction is the forfeiture regime.
As I will explain, the Narrow Construction would disadvantage those tenement holders who did spend money on exploration and mining and who considered that they had met the expenditure conditions. It cannot have been the intention of the legislature to disadvantage such tenement holders. This would be inconsistent with the purpose of the Act.
If a tenement holder did not believe it had met expenditure conditions in relation to a mining lease, or in aggregate, it would not file an operations report asserting that it had.[43] If an application for forfeiture was made, such a tenement holder could seek an exemption from the expenditure conditions for any of the reasons set out in s 102, apart from s 102(2)(h).
[43] unless it was dishonest.
If, at the time a forfeiture application was made, a tenement holder did not know whether it would meet the expenditure conditions, or had not yet filed its operations report, such a tenement holder could seek an exemption from the expenditure conditions for any of the reasons set out in s 102, apart from s 102(2)(h).
On the other hand, if a tenement holder believed it had met expenditure conditions in relation to a mining lease and filed an operations report asserting that it had, but was wrong about that, such a tenement holder could not seek an exemption from the expenditure conditions under the Narrow Construction. This is despite the fact that the tenement holder would be at risk of having the expenditure amount reduced by the Minister.[44]
[44] Under s 115B of the Act. See the earlier discussion under the heading 'Operations reports and audits'.
This is not an unlikely scenario. Nor would it mean that the tenement holder had been dishonest if it incorrectly claimed to have met the expenditure conditions. An incorrect claim could occur for a number of reasons.
(1)First, expenditure is relevantly defined as expenditure 'on or in connection with the mining tenement or the mining operations carried out thereon or proposed to be carried out'.[45] Determining whether expenditure meets that definition is not always easy, as is demonstrated by the cases that have had to rule on whether claimed expenditure meets that definition.
(2)Second, the operations report may have been based on an error, discovered later.
(3)Third, the operations report may have been based on an estimate which turned out to be wrong.
[45] Section 8 of the Act.
Similarly, if a tenement holder believed it had met expenditure conditions in relation to a mining lease and filed an operations report asserting that it had, but was simply concerned it might be wrong about that, such a tenement holder could not seek an exemption from the expenditure conditions under the Narrow Construction. Instead, such a tenement holder would be forced to defend the application for forfeiture, without the option of seeking an exemption.
The Narrow Construction would mean that such tenement holders would not be able to seek an exemption, whereas a tenement holder that knew it had not met its expenditure obligations could. It can be seen, therefore, that the Narrow Construction would disadvantage those tenement holders who did spend money on exploration and mining and who considered that they had met the expenditure conditions. This would be inconsistent with the purpose of the Act.
Logic and absurdity
This is not to say that the warden's Narrow Construction was irrational. The warden rightly noted that 'an exemption' is more apt to describe the release of a person from an obligation that has not been complied with. The ordinary meaning of the term 'exempt' is to be 'released from, or not subject to, an obligation, liability'.[46] There is something instinctively odd about exempting a person from an obligation he or she has already met.
[46] Macquarie Australia online dictionary.
However, in view of the text, context and purpose of the Act discussed earlier, this apparent oddity does not cause me to conclude that the Narrow Construction is correct.
First, there are no express words to limit s 102 to the Narrow Construction, and it would have been simple to include them if that had been the legislature's intention.
Second, the context and purpose of the Act and the Regulations do not support the Narrow Construction. In particular, the Narrow Construction would disadvantage those who considered that they had met the expenditure conditions, which would be inconsistent with the purpose of the Act.
Conclusion on proper construction
For these reasons, I have concluded that the proper construction is the Broad Construction. Putting aside s 102(2)(h), each of the reasons provided in s 102 are reasons why a holder should be excused from the requirement to expend either at all or to a particular amount, regardless of whether any such expenditure has occurred or will occur. In other words, each of the reasons are sufficient to mean that the usual requirement for minimum expenditure is not appropriate at all. If the holder still chooses to expend in those circumstances, that is a matter for the holder.
On this construction, the fact that expenditure has occurred remains a relevant consideration for the warden and/or the Minister to take into account when considering the merits of an exemption application. It just does not prevent an application being made or granted if the applicant has claimed to have met the expenditure conditions. In making the application for exemption, the applicant could explain why it seeks an exemption despite having claimed to have met the expenditure conditions. The warden and/or the Minister could consider that explanation in determining the overall merits.
For completeness, I should add that I have reached this view without relying on s 103. Carnegie Gold orally submitted that the word 'deemed' in s 103 corroborates the Broad Construction.[47] Section 103 relevantly provides that upon the granting of a certificate of exemption, the holder of a mining tenement to whom it is granted 'shall be deemed to be relieved' from its expenditure obligations.[48] It is not obvious to me that 'deemed' is used in s 103 to create a statutory fiction, as distinct from simply having its ordinary meaning of 'judged' or 'concluded'.[49] However, it is unnecessary to reach a concluded view about this as I have decided, without relying on s 103, that the Broad Construction is the correct one.
Errors of law on the face of the record
[47] ts 11 ‑ 12.
[48] This is to the extent, and subject to the conditions, specified in the certificate.
[49] See Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49, 65 ‑ 66 (Windeyer J).
The warden's erroneous construction of s 102 in the First Decision was an error of law on the face of the record.
As a result of his erroneous construction of s 102, the warden made further errors of law, on the face of the record, in the Second Decision.
First, he concluded that Carnegie Gold had no 'standing' to 'ventilate matters further'. This was an error. Carnegie Gold had filed exemption applications in relation to mining leases it held that met the prescribed requirements. It had standing. Objections had been filed. It was entitled to have its applications heard as required by s 102(5)(a).
Second, the warden concluded that he had met the obligation in s 102(5)(a) to hear the exemption applications. He considered that Carnegie Gold had been given the required opportunity to be heard in the determination of the Preliminary Issue. As I will explain in the next section, this was an error.
Third, the warden concluded that the Minister would be bound by the warden's Narrow Construction and would have to refuse the exemption applications regardless of whatever further grounds might be argued. This was an error. The warden was, in dealing with the exemption applications, exercising an administrative function.[50] The warden was required by s 102(6) to provide to the Minister for the Minister's consideration the warden's notes of evidence and any documents referred to in the evidence and a report recommending the grant or refusal of the application.
[50] Re Calder SM; Ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525 (Gardner No 1) [21], [34] (Ipp J, Pidgeon J agreeing), [50] ‑ [73] (Wallwork J, Pidgeon J agreeing). In Re Malley SM; Ex parte Gardner [2001] WASCA 29 (Gardner No 2), the Full Court refused to, in effect, overturn Gardner No 1 on the basis that the appeal before it was an abuse of process.
As a result of these errors, the warden recommended to the Minister, in the Second Decision, that the exemption applications be refused.
Hearing requirement - second issue
Was a hearing required?
The second issue raised by the application for judicial review is whether the warden was required to hear the exemption applications and the objections to the exemption applications.
The answer is yes. Where an exemption application is made as prescribed, and an objection is lodged, s 102(5)(a) requires the warden to hear the application. This is clear from the words in s 102(5)(a) itself - 'shall be heard'. It is reinforced by the requirement that the warden must send to the Minister, with his recommendation 'the notes of evidence and any maps or other documents referred to therein'.[51]
Did a hearing occur?
[51] Section 102(6).
The jurisdictional fact that engages the warden's powers under s 102 is the making of the application by the holder of a mining tenement. The requirement in s 102(5)(a) to hear an exemption application will arise if an objection is lodged.
Section 102 makes it clear that, in hearing an exemption application, the warden's role is to provide to the Minister, for the Minister's consideration, the warden's notes of evidence and any documents referred to in the evidence and a report recommending the grant or refusal of the application. Section 102 expressly contemplates a hearing in which evidence is received.[52] The warden must give attention to the merits of the reasons upon which the exemption is sought.[53] The warden is required to hold an inquiry to gather the evidence of the application and the factors relating to the objection, and provide that to the Minister with the warden's recommendation.[54]
[52] Gardner No 2 [50] (Parker J).
[53] Re Heaney; Ex Parte Haoma Mining NL v Tunza Holdings Pty Ltd (Unreported, WASCA, Library No 980738C, 18 December 1998) 15.
[54] Gardner No 2 [98] (McKechnie J).
Accordingly, where an exemption application has been made by the holder of a mining tenement, and an objection is lodged, the warden is required to hear the merits of the exemption application. The warden is required to allow the parties to adduce relevant evidence in the hearing in relation to each of the grounds put forward in support of the exemption application and the grounds for the objection. The warden is required to give the parties an opportunity to make submissions on those grounds. The warden is required to accord procedural fairness during the hearing.
The warden did not do this. Allowing the parties the opportunity to be heard on the Preliminary Issue did not give the parties the opportunity to be heard on the merits. The hearing on the Preliminary Issue was not the hearing required by s 102(5)(a).
The warden was clearly aware of the requirement to hear the exemption applications. He expressly referred to it. The warden did not deliberately choose to breach the requirement. Rather, the warden concluded that he had met the requirement. He considered that Carnegie Gold had been given the required opportunity to be heard in the determination of the Preliminary Issue. The warden concluded he did not have to hold a substantive hearing on the applications because he had concluded, in effect, that there were no valid applications to be heard. He concluded, on the Narrow Construction, that it was not open to Carnegie Gold to seek exemptions given it had claimed to have met the expenditure conditions. For the same reason, the warden concluded that Carnegie Gold did not have 'standing'. In other words, the warden's failure to hear the applications for exemption on the merits did not occur because the warden was unaware of the obligation to hear the exemption applications. Rather, it occurred because the warden misconstrued the Act.
As I have indicated, while the warden's construction was wrong, it was not irrational. Nevertheless, the warden failed to hear the exemption applications as required by s 102. The warden did not have the power to make a recommendation to the Minister without first hearing the exemption applications.
By making the recommendation without first hearing the applications, the warden made a jurisdictional error.
Procedural fairness - third issue
Carnegie Gold alleges that the warden failed to accord procedural fairness. Before dealing with Carnegie Gold's specific complaints, it is useful to first explain why the warden was required to accord procedural fairness, the consequences of a breach and the content of that duty.
Existence of requirement to accord procedural fairness
The duty to accord procedural fairness is sometimes referred to as a requirement to act in accordance with the requirements of natural justice or to act 'judicially'.[55]
[55] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 365 ‑ 366 (Deane J).
The principles to be applied in determining when a duty to accord procedural fairness arises and the content of any such duty are well settled.
When a statute confers power on the executive government to adversely affect the rights or interests of a person, the common law will imply into that statute a condition that the power be exercised in compliance with the requirements of natural justice, unless a contrary intention of Parliament is expressed or to be inferred.[56]
[56] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [11] ‑ [15].
A warden's recommendation as to whether the Minister should allow or refuse an application for exemption can adversely affect the rights of the tenement holder.[57] The failure to obtain an exemption can lead to significant consequences for a tenement holder, rendering the lease liable to forfeiture.
[57] Haoma Mining (2001) [58] ‑ [60] (Wallwork J), [21], [23] (Malcolm CJ & Pidgeon J agreeing). See also Hot Holdings (174), cited in Siberia Mining [20].
There is nothing in the Act which expressly excludes a requirement that the power to make such a recommendation must be exercised in compliance with the requirements of natural justice. There is nothing in the Act from which an intention of Parliament to exclude those requirements could be inferred.
Accordingly, a warden dealing with an application for an exemption where an objection has been lodged is obliged to accord procedural fairness.[58]
Consequences of breach
[58] Burge [35]. See also Siberia Mining [81] ‑ [88], Re Her Honour Warden Richardson SM; Ex parte Precious Metals Australia Ltd [2006] WASC 192 [38] (in relation to applications for exemption from working conditions under the previous Act), Gardner No 1 [8] ‑ [21], [25].
Where a decision‑maker is required to accord procedural fairness, but fails to do so, this will ordinarily be a jurisdictional error.[59] It may not be a jurisdictional error if the failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of the possibility of a successful outcome.[60]
Content of duty
[59] Saeed [13].
[60] Hossain [30] (plurality), [40] (Nettle J) and [72] (Edelman J).
Determining what is required to accord procedural fairness will depend on the statutory framework within which a decision‑maker exercises statutory power, and the facts and circumstances of the particular case.[61]
[61] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [26]. See also Saeed [18] ‑ [20].
Ordinarily, where a decision‑maker is obliged to accord procedural fairness, the decision‑maker must ensure that the parties are aware of the relevant issues.[62] In my view, this applies to a warden dealing with an application for an exemption where an objection has been lodged.
[62] See SZBEL [29] ‑ [32], [35].
In addition, s 102(5)(a) itself requires that a warden dealing with such an application actually 'hear' the application.
Accordingly, in my view, a warden dealing with an application for an exemption where an objection has been lodged must conduct a hearing and must, among other things, ensure that the parties are aware of the relevant issues.
Alleged failures to accord procedural fairness
Carnegie Gold alleges, in its written submissions, that the warden failed to accord procedural fairness on three grounds.[63]
First, the Warden made the Recommendation without hearing from Carnegie Gold as to the Exemption Applications, as is required by section 102(5) of the Act.
Secondly, the Warden gave no indication to the parties that he intended to not allow any further evidence to be led if he determined the Preliminary Issue negatively.
Thirdly …, the Warden did not suggest to the parties that Carnegie Gold lacked standing, or that he intended to make a finding as to whether Carnegie Gold had standing, and so Carnegie Gold had no opportunity to address the suggestion.
[63] Carnegie Gold's Submissions [85] ‑ [88].
I accept that the warden failed to accord procedural fairness in not conducting a hearing on the merits of the exemption applications. It cannot be said that the failure did not deprive Carnegie Gold of the possibility of a successful outcome. The failure was a jurisdictional error. In fairness to the warden, this was not because the warden was unaware of the obligation to accord procedural fairness. Rather, it was because the warden did not consider there was a valid application for exemption so as to trigger the requirement to hold a hearing on the merits.
However, as I will explain, I am not satisfied that the warden failed to accord procedural fairness on the basis of the second ground asserted by Carnegie Gold, namely that the warden gave no indication to the parties that he intended to not allow any further evidence to be led if he determined the Preliminary Issue negatively.
First, procedural fairness did not require the warden to foreshadow this prior to determining the Preliminary Issue. If the Preliminary Issue was determined in favour of Carnegie Gold, it would be moot.
Second, after the warden determined the Preliminary Issue, he made orders for submissions to be filed on the future conduct of the proceedings and a hearing was held.[64] The submissions filed by Mr Brewer sought to persuade the warden to find that the exemption applications were an abuse of process and to recommend to the Minister that the exemption applications be refused without further hearing.[65] Carnegie Gold's written and oral submissions sought to persuade the warden that he did not have the power to recommend to the Minister that the exemption applications be refused without further hearing.[66] Carnegie Gold clearly knew that this was a critical issue. It was not denied the opportunity to make submissions about it either in writing or orally.
[64] Affidavit of Timothy Paul O'Leary affirmed 17 October 2017 (O'Leary Affidavit) annexure TPO16.
[65] O'Leary Affidavit annexure TPO17 [5].
[66] O'Leary Affidavit annexure TPO18 [6] ‑ [34] and annexure TPO20 pages 139 ‑ 148.
The third ground on which it is submitted that the warden failed to accord procedural fairness is more nuanced. As noted, the third ground was that the warden did not suggest that he intended to make a finding as to whether Carnegie Gold had standing, and so Carnegie Gold had no opportunity to address the suggestion.
On one view, the warden's finding that Carnegie Gold lacked standing could be seen as simply another way in which he expressed his conclusion that an exemption application could not be sought where the applicant had claimed to have met the expenditure conditions. If this was so, I would reject this ground for the same reason as I rejected the second.
However, in oral submissions, Carnegie Gold submitted that the warden's comments about standing were an independent feature of his decision, and relied upon his interpretation, and application, of the remarks of Ipp J in a very different context in Re Warden French; Ex parte Serpentine Jarrahdale Ratepayers' Association.[67]
[67] Re Warden French; Ex parte Serpentine Jarrahdale Ratepayers' Association (1994) 11 WAR 315, 328 ‑ 329.
I am mindful of the caution required to be exercised in evaluating the reasons of a warden.[68] However, even making due allowance for the work of magistrates, I accept Carnegie Gold's submissions. I accept that the warden's view that Carnegie Gold lacked standing was an independent feature of his decision. The warden failed to accord procedural fairness in alerting Carnegie Gold to the issue of standing.
[68] As set out above under the heading 'Evaluating a magistrate's reasons'.
Conclusion
I have concluded that the warden erred in law, on the face of the record, as to the proper interpretation of s 102 of the Act. I have also concluded that the warden fell into jurisdictional error by purporting to exercise his jurisdiction to make the recommendation without hearing the exemption applications and the objections to the exemption applications, contrary to the requirement in s 102 of the Act and the requirement of procedural fairness.
The warden's recommendation that the exemption applications be refused has the capacity to affect the rights of the applicant so as to permit the remedy of certiorari.[69]
[69] See the authorities cited under the heading 'Certiorari'.
There is no reason to exercise my discretion to refuse certiorari.
For these reasons, I will grant the writ of certiorari in relation to the warden's decision on 15 June 2017 to recommend to the Minister that the applications for exemptions be refused.
I will also declare that the decision is of no force and effect.
In its application, Carnegie Gold seeks an order that the second respondent, Mr Brewer, pay its costs of the application. Mr Brewer gave notice that he would abide the decision of the court, save as to costs. Accordingly, I will hear from the parties as to appropriate programming orders to give both Carnegie Gold and Mr Brewer an opportunity to make submissions as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
ASSOCIATE TO THE HONOURABLE JUSTICE ARCHER28 NOVEMBER 2018
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