FMG Pilbara Pty Ltd v The Honourable William Joseph Johnston, MLA, Minister for Mines and Petroleum - [2020] WASC 8

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   FMG PILBARA PTY LTD -v- THE HONOURABLE WILLIAM JOSEPH JOHNSTON, MLA, MINISTER FOR MINES AND PETROLEUM [2020] WASC 8
CORAM:   KENNETH MARTIN J
HEARD:   20 NOVEMBER 2019
DELIVERED          :   14 JANUARY 2020
FILE NO/S:   CIV 2195 of 2019
BETWEEN:   FMG PILBARA PTY LTD
Applicant
AND
THE HONOURABLE WILLIAM JOSEPH JOHNSTON, MLA, MINISTER FOR MINES AND PETROLEUM
Respondent
ATLAS IRON PTY LTD
First Interested Party
PETER ROMEO GIANNI
Second Interested Party

Catchwords:

Judicial review - Exploration licence expiry by effluxion of time governed by pre-2006 Mining Act 1978 (WA) regime - Application to renew exploration licence on second last day prior to expiry - Renewal application submitted via department website in electronic form - Application to renew received 89 seconds past cut-off time on working day pursuant to Mining Regulations 1981 (WA) - Application deemed by Mining Regulations to have been lodged on next working day - Renewal application evaluated to have been filed out of time - Application to Minister for extension of time to apply for renewal and consideration of electronically lodged renewal application - Extension of time refused by Minister - Minister declined to consider merits of application for one-year extension of exploration licence - Challenge to Minister's decision by judicial review - Whether exploration licence had expired or was preserved pursuant to Mining Act s 61(3a) - Consideration of relationship between 'excluded days' under Interpretation Act 1984 (WA) s 61(1)(e) and (h) and Mining Act s 61 - Whether such approach consistent with the policy and objectives of the Mining Act - Whether application for renewal of exploration licence still open to be determined by Minister

Legislation:

Interpretation Act 1984 (WA)
Mining Act 1978 (WA)
Mining Amendment Act 2004 (WA)
Mining Amendment Act 2008 (WA)
Mining Amendment Act 2012 (WA)
Mining Legislation Amendment and Validation Act 2008 (WA)
Mining Regulations 1981 (WA)

Result:

Application granted
Writ of certiorari to issue

Category: B

Representation:

Counsel:

Applicant	:	Mr A J Papamatheos
Respondent	:	No appearance
First Interested Party	:	No appearance
Second Interested Party	:	No appearance
Amicus Curiae	:	Mr A Shuy

Solicitors:

Applicant	:	Ensign Legal
Respondent	:	In person
First Interested Party	:	In person
Second Interested Party	:	In person
Amicus Curiae	:	State Solicitor's Office

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

Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Waterfront Place Pty Ltd v Minister for Planning [2019] VSCA 156

KENNETH MARTIN J:

The present application for judicial review throws up an issue over a relatively recent phenomenon of the permitted electronic filing of applications to renew and extend mining tenements of fixed duration. Here, the last day of an exploration licence held by the applicant was a Saturday. The applicant held the right to apply to renew that licence within the period before it expired. The applicant did apply electronically to renew via the relevant department's website on the immediately preceding Friday - then a day before the tenement otherwise would expire. But because the application was electronically processed at 89 seconds after 4.30 pm on that Friday, the regulation permitting electronic renewals deemed the application to be lodged at 8.30 am the ensuing Monday following the weekend and thus, too late. The question is was it too late? The relevant Minister thought it was. I do not.

Background

On 25 March 2004, Poondano Exploration Pty Ltd (Poondano) had made an application for an exploration licence, E47/1393. On 31 March 2006, the Minister granted E47/1393 to Poondano.
On 16 November 2007, Poondano transferred E47/1393 to the applicant (FMG).
At each of 30 March 2013 and 30 March 2015, the Minister had granted FMG extensions of term for E47/1393 for respective periods of two years under s 61(2) of the Mining Act 1978 (WA) - which provision had remained in force for this tenement on the same basis as applied immediately before commencement of Pt 4 of the Mining Amendment Act 2004 (WA). That result was delivered by reason of transitional provisions within the Mining Amendment Act, under s 19(1) and s 19(2).
After those two extensions each of two‑year periods, the Minister could then only grant further extensions of periods of one year for the renewal of exploration licence over E47/1393. This result was by s 61(2)(b) of the Mining Act, as it then applied and as it continues to apply to E47/1393. The renewal regime is different for exploration licences applied for after 10 February 2006, which are subject to s 61(2) (in different terms as it it presently has been amended) and now, allowing for an extension of a single period of five years but thereafter, for further periods of two years.
Here, under the former extension of exploration licences regime by the former s 61(2) (but still remaining applicable to E47/1393) the duration of this exploration licence would expire at midnight on Saturday, 30 March 2019, unless a renewal application was made before expiry.
To keep the licence alive, FMG only needed to make an application for an extension of term, under prescribed circumstances. If that were done, then certain interim preservation consequences followed for the holder of the exploration licence - and preserving the tenement until the relevant Minister had reached a decision on the merits or demerits of the renewal application as it had been submitted and received (see s 61(3)).
Here, FMG did seek within time to apply for an extension of the term and to renew this exploration licence for a further year. It attempted to electronically lodge using the department's website on 29 March 2019. I refer to this application as FMG's 'renewal application'.

The Mining Act - s 61

It is necessary at this time to see the text of s 61 of the Mining Act as it had once applied to E47/1393 and reading in the following terms:
61.Term of exploration licence
(1)An exploration licence shall, subject to this Act, remain in force for a period of five years from and including the date on which it was granted, and shall then expire.
(2)Notwithstanding subsection (1) the Minister may extend the term of an exploration licence -
(a)in prescribed circumstances by -
(i)a period of one or 2 years; and
(ii)one further period of one or 2 years;
and
(b)in exceptional circumstances by a further period or periods of one year,
as to the whole or any part of the land the subject of that exploration licence on such terms and conditions as the Minister thinks fit.
(3)A person making an application for the extension of the term of an exploration licence under subsection (2) shall lodge that application at the office of the mining registrar and where the term of the exploration licence would but for this subsection expire, that licence shall continue in force in respect to the land the subject of the application until the application for the extension of the term is determined.
(4)If the holder of an exploration licence transfers the licence after making an application for the extension of the term of the licence under subsection (2), the application continues in the name of the transferee of the licence as if the transferee had made it.
(Note: There was no disagreement at all over this regime raised before me at the hearing of this application for judicial review.)
But s 61(3) seen above, came to be amended. A further section, 61(3a), was added by a combination of the Mining Amendment Act, the Mining Legislation Amendment and Validation Act 2008 (WA), and then later the Mining Amendment Act 2012 (WA).
Commencing with the Mining Amendment Act 2004 there was provided a transitional provision which, in summary, would keep s 61(2) in place - but only for certain exploration licences.
As set out in FMG's written submissions dated 2 September 2019, s 19(1) - (2a) of the Mining Amendment Act (as subsequently amended in 2008 and 2012) provided:
19.Transitional and savings provisions
(1)In this section -
'commencement' means the commencement of this Part;
'old provisions' means the Mining Act 1978 as in force immediately before the commencement;
'relevant licence' means -
(a)an exploration licence granted under the Mining Act 1978 that is in force immediately before the commencement; or
(b)an exploration licence granted under the Mining Act 1978 after the commencement in respect of an application made before the commencement.
(2)Despite the amendments made by this Part, the old provisions (other than sections 61(3), 63A, 65(1a), 65(1c) and 65(4)) continue to apply to and in relation to a relevant licence.
(2a)Section 61(3) and (3a) of the Mining Act 1978 apply to and in relation to an application for the extension of the term of a relevant licence.
Toward assessing the present underlying statutory and regulatory circumstances, I need to set out once more the entirety of s 61 of the Mining Act as it came to be amended relevant to this particular exploration licence of FMG. This is particularly so given that s 61(3) and (3a) need to be seen and read in the context of s 61 as a whole - as the section became relevantly applicable to E47/1393 in 2019. Of course, this is also relevant to FMG's renewal application and to the decision of the Minister (that is now impugned) as made within that underlying legislative context:
61.Term of exploration licence
(1)An exploration licence shall, subject to this Act, remain in force for a period of 5 years from and including the date on which it was granted, and shall then expire.
(2)Notwithstanding subsection (1) the Minister may extend the term of an exploration licence -
(a)in prescribed circumstances by -
(i)a period of one or 2 years; and
(ii)one further period of one or 2 years; and
(b)in exceptional circumstances by a further period or periods of one year,
As to the whole or any part of the land the subject of that exploration licence on such terms and conditions as the Minister thinks fit.
(3)An application for the extension of the term of an exploration licence under subsection (2) shall be made within the prescribed time and in the prescribed manner.
(3a)If an application for the extension of the term of an exploration licence is made under this section and the term of the licence would but for this subsection expire, the licence shall continue in force in respect of the land the subject of the application until the application is determined.
(4)If the holder of an exploration licence transfers the licence after making an application for the extension of the term of the licence under subsection (2), the application continues in the name of the transferee of the licence as if the transferee had made it. (my emphasis in bold)

Observations upon s 61 as it relevantly came to apply to E47/1393

By reference to the as applicable terms of s 61 just set out above, it is uncontroversial before me that FMG's renewal application seeking a further extended one year term for this exploration licence was advanced on a basis of 'exceptional circumstances' - by reference to the terminology of s 61(2)(b) of the Mining Act. To that end, s 61(3), as it is made applicable by the transition provision that is s 19(2a) of the Mining Amendment Act to an extension of term in respect of a 'relevant licence', is engaged - as regards an application that shall be made within 'the prescribed time' and in 'the prescribed manner'. I return to discuss that text shortly.
Earlier, however, the terminology of s 61(1) in terms of the duration of an exploration licence specifies that tenement as remaining in force for a fixed period (but, of course, also 'subject to this Act'). This s 61(1) terminology focuses attention at the outset upon the nature of an exploration licence as being a mining tenement which remains in force for a fixed and finite period and is to be held - subject to the terms of the Mining Act as a whole.
Nevertheless, under the attempted engagement for the purpose of a renewal application of the 'exceptional circumstances' criterion under s 61(2)(b), attention then turns to the as specified extension ingredients of s 61(3), as regards the allowed making of an application for an extension of the term of an exploration licence under s 61(2). Relevantly, s 61(3) (and noting how it had altered since its prior iteration) directs attention to matters of prescription as regards both 'time' and 'manner'.
The s 61(3) reference to 'prescribed' in turn invokes the need to have regard to the content of relevant regulations as issued pursuant to the Mining Act and governing the machinery of such a renewal application.
Before turning to examine those relevant regulations, it is helpful to also note before leaving s 61 that the revised terms of s 61(3a) are vital in terms of laying down what presents as something of an interim preservation regime, erected towards maintaining the continuance in force of the exploration licence sought to be extended, until the renewal application itself has been substantively determined one way or another by the relevant Minister. In short, by this interim regime, if an application is 'made under this section', then a licence continues in force in respect of the land the subject of the application, 'until the application is determined'. That interim preservation regime delivered by s 61(3a) remains in place whilst the renewal application is being 'determined' and aligns to a like preservation regime under the former s 61(3), as earlier seen.
With those overview observations made as to s 61, it is necessary next to relevantly turn to two critically important regulations under the Mining Act, namely, to reg 23A(1) and then, to reg 59B of the Mining Regulations 1981 (WA).

Mining Regulations - regs 23A and 59B

There was no dispute at all raised before me over any of the applicable legislation or the applicable regulations governing E47/1393.
First, I refer to reg 23A(1) of the Mining Regulations, which is in these terms:
23A.Extension of exploration licence (Act s.61)
(1)An application under section 61 to extend the term of an exploration licence shall -
(a)be lodged during the final year of the term of the licence; and
(b)be in the form of Form 9; and
(c)be accompanied by -
(i)the instrument of licence (if issued); and
(ii)the prescribed rent for a period of 12 months commencing on the day after the day on which the licence is due to expire; and
(iii)information in support of the proposed ground for extension, a summary of work already carried out under the licence and a detailed programme of work proposed to be carried out under the licence.
Then, as regards the more recent phenomenon of permitted electronic filing, reg 59B provides:
59B.Lodging mining tenement documents through Department's website
(1)In this regulation -
mining tenement document has the meaning given in section 162(3A) of the Act.
(2)Subject to the requirements of the Department's website and this regulation, a person may lodge a mining tenement document electronically by lodging an electronic version of it by means of the Department's website.
(3)A mining tenement document that is lodged electronically after 4.30 p.m. on a working day and before 8.30 a.m. on the next working day is taken to have been lodged at 8.30 a.m. on that next working day.
(4)A mining registrar may at any time, require a person who has lodged a mining tenement document electronically to lodge the paper version of the document.

Observations on the regulations as they were engaged by FMG's present application for judicial review

I would note at the outset that reg 23A is specifically directed towards an application to extend the term of an exploration licence, via s 61 of the Mining Act.
As textually expressed, it presents in mandatory terms (by the word 'shall') and it then speaks of a need for an application under s 61 to be lodged 'during the final year of the term of the licence'. The word 'lodged' is important.
Also important from a temporal perspective is the period of time allocated within which the application for an extended term under s 61 may be made (noting the terminology of s 61(3) uses the word 'made', while 'lodged' is the chosen terminology of reg 23A(1)(a)).
There is no factual dispute on this review application that the final year of the term of FMG's exploration licence E47/1393 ran until midnight on Saturday, 30 March 2019: see reg 23A(1)(a).
Nor is there any factual dispute that FMG's renewal application was appropriately submitted by the use of form of a Form 9 of the Mining Regulations: see reg 23A(1)(b).
Nor is there any factual disputation that FMG's renewal application, as it was electronically lodged on Friday, 29 April 2019, had been properly accompanied then by the instrument of licence, rent money and all the required information in support of the proposed grounds of an extension, being the subject matter of the three requirements under reg 23A(1)(c)(i) - (iii).
But the difficulty as encountered for FMG as regards its electronically lodged renewal application for E47/1393 solely relates to the evaluated late timing of the application's electronic lodgement, in particular, by reference to the 'next working day at 8.30 am' deeming effect of reg 59B(3) now seen above.
It is convenient to observe now that reg 59B, dealing with electronic lodgement of documents on the department's website, is generic in its application, by reference to the wide meaning given to a 'mining tenement document' under reg 59B(1). That reg 59B(1) definition in turn refers back to s 162(3A) of the Mining Act which, for present convenience, I note says this:
In subsection (2) -
mining tenement document means -
(a)an application for a mining tenement; or
(b)an agreement, claim, notice of objection, security, or any other document, in respect of a mining tenement. (my emphasis)
There was no submission put to me at the present hearing to the effect that FMG's extension and renewal application for its E47/1393 did not meet the description of a 'mining tenement document' as so defined, for the purposes of reg 59B(1).
However, it should be noted early, and importantly to one of the review grounds of FMG under its application for judicial review, that reg 59B is a general electronic lodgement regulation provision, manifesting within Pt V of the Mining Regulations, in particular under div 1A thereof as regards the lodging and filing of documents. Hence, reg 59B, as may now be accepted, is generic in its intended application towards 'mining tenement documents' (as defined). That generic feature, says FMG, stands by some contrast to the earlier reg 23A(1) which, as may be seen, by its text is more specifically targeted in its direction and application only towards renewals of 'exploration licences'.
It is the intersection as between these two regulations that lies at the heart of the first of FMG's grounds of review.

Electronic filing

It was in 2011 that reg 59A and reg 59B were inserted at the commencement of Pt V. Regulation 59A now enabled the physical lodgement of a document at any mining registrar's office, by reg 59A(2). That introduced a different physical lodgement arrangement to that which had previously prevailed. They had required the physical lodgement at a particular mining registrar's office as was applicable to the geographic location for the area of the particular tenement the subject of the document then being lodged. That sometimes physically confronting requirement was thus liberalised and relaxed by the changes.

Regulation 59A(4) recognised that other requirements may apply in relation to the manner of lodgement or filing of a 'document' as defined under reg 59A(1). The class of eligible document as identified under reg 59A(1) is defined differently to reg 59B(1) (which as seen now included the definitional reference to a 'mining tenement document'). However, the class of eligible document that was envisaged under reg 59A(1) across the complex regime looked to be constructed in wider terms. But it included an express reference to an 'application' -terminology that I assess would extend to FMG's physical renewal application of E47/1393, had that medium been chosen instead in 2019.
Regulation 59B, as seen, essentially introduced and permitted in parallel with the reg 59A physical lodgement medium what would be a new and an alternate lodgement regime of electronic, website lodgement for mining tenement documents. Electronic lodgement would be effected by the lodging of an electronic version of the mining tenement document and by means of electronically accessing the department's website (in effect, through the internet).
It may then be noted that reg 59B(2) directs attention to the requirements of the department's 'website' and to 'this regulation'.
Contextually, it is also important to note that reg 59A(2) (also in Pt V div 1A) contains the alternate and more traditional physical lodgement procedure - permitting the regime lodgement of documents at 'any mining registrar's office'.

Regulation 59B(3)

Of importance to the problematic issue encountered by FMG on Friday, 29 March 2019 are the terms of s 59B(3) and regulating situations of an electronic lodgement after 4.30 pm on a working day and before 8.30 am on the next.
The term 'working day' is seen defined in reg 2 to essentially mean days when the mining warden's office (ie, the department) is open for business. So, essentially, that must exclude Saturdays, Sundays and public holidays.
As also seen, the phrase 'is taken' to have been 'lodged' by s 59B(3) is a deeming provision as regards the timing receipt of the electronically lodged document.
For present circumstances, FMG's s 61 renewal application towards E47/1393 was electronically stamped with a 'submission' time as '16:31:29 on Friday, 29 March 2019'. However, the receipt of that application for renewal of the exploration licence is deemed to have been received only at precisely 8.30 am on the next following working day, namely, at 8.30 am on Monday, 1 April 2019. This result is seen on the Form 9 itself showing 'Receipt: 01/04/2019, 08:30:00'. The critical repercussion of that deemed designation for FMG is that over the ensuing weekend, specifically, at midnight on Saturday, 30 March 2019, the duration of its exploration licence E47/1393 had then expired.
So, to put it in the clearest of terms, when FMG's renewal application was electronically submitted to be lodged on Friday, 29 March 2019 at 16:31:29, its exploration licence still had one more day to run, over the ensuing Saturday. The effect of reg 59B(3) was to 'deem' FMG's renewal application as being lodged after the duration of FMG's exploration licence had expired at midnight on the preceding Saturday.
Those facts and the provisions of s 61 and the two regulations as now mentioned form the base of the application for judicial review as is now advanced by FMG upon three grounds, which I will shortly explain.

The decision to be reviewed

Before that, however, I need to identify the relevant decision by the Minister, which issued on 10 June 2019. It is this decision which is presently sought to be quashed by a writ of certiorari and also made the subject of declaratory relief. All this information and the evidence as already identified is uncontroversially contained in exhibit 1, the unchallenged affidavit of Timothy Iren Masson, sworn on 8 July 2019, in support of the present application (the Masson affidavit). FMG's renewal application can be found at TIM2 of the Masson affidavit.
On 10 June 2019 the Hon Bill Johnson MLA, relevantly the Minister for Mines and Petroleum, Energy and Industrial Relations, had advised Mr Masson (for FMG) in the following terms (see attachment TIM4 of the Masson affidavit):
I refer to your email and two letters dated 17 May 2019 in which you request I consider an extension of time to lodge an application for extension of term, and the extension of term itself on Exploration Licence 47/1393.
As noted in your correspondence the application for an extension of term of Exploration Licence 47/1393 was, by virtue of the operation of the Mining Regulations was [sic] deemed to have been received on Monday 1 April, by which time the Exploration Licence had expired.
Critically, the Minister then advised of his decision in these terms:
I am advised that s 162B [of the Mining Act] only has application in relation to live tenements and that as the application for the extension of time to lodge the application for extension of term, and the application for extension of term were received after the expiry of Exploration Licence 47/1393 at midnight on 30 March 2019, I cannot grant the extensions sought.

The now agreed non-application of s 162B of the Mining Act

The Minister's refusal decision as seen expressed in the above paragraph and, indeed, the very request as made by FMG under its letters of 17 May 2019 (see attachment TIM3 of the Masson affidavit) all proceeded on the basis that an extension could be sought from the Minister for an out of time extension application, upon s 162B of the Mining Act. However, all submissions made under that section are now accepted to be irrelevant to this exploration licence.
It is now accepted for the purposes of present arguments on FMG's application for judicial review that because the earlier regime of mining legislation still applies to E47/1393, as a 'relevant licence' under s 19(1) of the transitional provisions of the Mining Amendment Act, that the subsequently enacted s 162B can be of no relevant application.
For convenience, however, I will set out below the terms of s 162B of the Mining Act. It now reads in the following terms:
162B.Extension of prescribed period of time
(1)If this Act provides for something to be done within a prescribed period or a prescribed time, the Minister or a warden may, in a particular case, extend the period or the time for doing the thing.
(2)The power in subsection (1) may be exercised whether or not the prescribed period has ended or the prescribed time has passed.
I would observe in passing, since it might one day be relevant to policy arguments concerning the potential ramifications of this decision made on the present application from a wider policy perspective, that the terms of s 162B(2) do not look yet to be the subject of any decided superior court authority. Nevertheless, my prima facie view is that given the deliberately expressed breadth and scope of the s 162B(2) text as is seen used by the legislature, that this clearly remedial provision looks indeed to have otherwise been directly applicable to present circumstances, and so providing power to the Minister to extend under the circumstances where the prescribed time by reg 59B(3) (namely, before 4.30 pm on a working day) had already passed. Given that it is ultimately agreed that s 162B(2) could not be engaged here, I say no more than that.

The present application for judicial review - the parties

The underlying facts as now recounted, and which are not at all in dispute, provide the basis for the judicial review application now pursued by FMG. I should note that neither the relevant Minister as named respondent, nor either of the interested parties, have sought to participate. Those parties all indicated by their submitting appearances that they abide whatever the court's decision may eventually be, and so do not seek to be heard.
Given such unilateral circumstances for FMG's application seeking judicial review, there was for a time a prospect of there being no substantive contradictor to FMG upon the present application for review, under circumstances where it does present as one of considerable importance, not to mention complexity.
Given that horizon, I was most grateful then to eventually have the assistance of the Attorney General, intervening as amicus curiae intervenor under an order for leave which was unopposed. Furthermore, I am most grateful for the careful assistance provided by Mr Shuy as counsel for the Attorney General both in respect of the helpful written submissions which were prepared and by Mr Shuy's insightful oral submissions made at the hearing of the present application.
I can now turn to the three grounds of FMG as are now pursued on the present judicial review application.

Overview of FMG's grounds of application for judicial review

Under FMG's amended application for judicial review of 2 September 2019, four grounds of review were originally pursued. However, after the exchange of written submissions, FMG by counsel indicated it would not be pursuing the original ground 3, leaving only for my consideration grounds 1, 2 and 2A (see ts 2). I move to briefly address these grounds next.

Ground 1

By ground 1, FMG submits, as I foreshadowed earlier, that reg 59B(3) which, in effect, deems that an electronically filed 'mining tenement document' is taken to have been lodged at 8.30 am on the next working day, if lodged electronically after 4.30 pm on a working day (and hence, in the prevailing circumstances here, too late), is to be interpreted in proper context, as not being of any application to present circumstances. FMG's submission is that its renewal application (absent any application of reg 59B(3)) was validly filed electronically within the available time (ie, during the life of its exploration licence and before its expiry).
The fundamental submission of FMG is that only reg 23A applies, given that regulation is more specifically targeted towards to applications for an extension of the term of an exploration licence, by a direct reference to s 61. By contrast, it was submitted that reg 59B(3) (but not, as I understood the submission, reg 59B(2)) is as a matter of pure construction in context not applicable. If that is the case, FMG contends its renewal application of E47/1393 seeking a period of a further year was made within time and so, that the Minister's decision to refuse to determine the application for extension under s 61(2) was in error.
That is because it is said that the decision of the Minister can be seen as necessarily founded on an essential, but erroneous, assumption by the Minister, namely, that E47/1393 had, indeed, expired at midnight on Saturday, 30 March 2019 and then without any renewal application having then been filed, so as to engage the interim preservative effect of s 61(3a).

Ground 2

FMG's ground 2, made further and alternatively to ground 1, calls in aid the terms of s 61(1)(e) and (h) of the Interpretation Act 1984 (WA). FMG thereby contends that E47/1893, by reason of its day of expiry being a Saturday, that the date of its expiry meets the definition of an 'excluded day', under those provisions of the Interpretation Act. As such, those provisions are said to be subsequently engaged. The consequence is that it was open, it is said, to FMG to make application to renew E47/1393 upon the next day that is not an excluded day under the terms of the Interpretation Act. On that basis, FMG's application to renew, even if deemed as being made the following Monday, 1 April 2019, at 8.30 am, would still then be made in time that Monday and so should have been evaluated by the Minister on its merits.
To that end, it may be helpful at this time to see the specific subparagraphs of s 61(1)(e) and (h) which FMG relies upon. Specifically, s 61 of the Interpretation Act provides in the following terms:
Time, computation of
(1)In computing time for the purposes of a written law -
...
(e)where the time limited for the doing of a thing expires or falls on an excluded day, the thing may be done on the next day that is not an excluded day;
...
(h)where an act or proceeding is directed or allowed to be done or taken on a certain day, or on or before a certain day, then, if that day is an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day that is not an excluded day.
FMG's ground 2 argument is that its ability to validly make a renewal application is preserved under these Interpretation Act provisions, even if by reg 59B its renewal application is taken to have been electronically lodged on Monday, 1 April 2019 at 8.30 am, as the next not excluded day after an expiry of E47/1393 at midnight on Saturday, 30 March 2019,
Of course, s 61 of the Interpretation Act is governed by the earlier provisions of s 3, which will render a provision inapplicable if there is an express provision made in the legislation to the contrary (see s 3(1)(a)). But that, I assess, is not the case here under the regime of and around s 61 of the Mining Act, as now discussed. There is nothing so expressed. However, s 3(1) of the Interpretation Act will also render s 61(1)(e) or (h) inapplicable for circumstances where
(b)in the case of [the Mining Act], the intent or object of the [Mining Act] or something in the subjective context of the [Mining Act] is inconsistent with such application; or
(c)in the case of subsidiary legislation, the intent and object of the [Mining Act] under which that subsidiary legislation is made is inconsistent with such application.
Towards FMG's ground 2, the essential submission made by the Attorney General as amicus was that the intent and object of the Mining Act and its subject matter and context do not permit of a utilisation of the extension provisions of s 61(1)(e) or (h) of the Interpretation Act so as to compensate for the effect of an excluded day in the computation of time as regards extension applications under s 61 of the Mining Act.

Ground 2A

Ground 2A of review by FMG contends to the effect that if by reason of the Mining Act and Mining Regulations its s 61 renewal application in respect of E47/1393 is assessed as being late, in terms of an electronic lodgement (by a margin of some 89 seconds) that, nevertheless, at worst, its application was only irregular or immaterially non‑compliant, when so submitted on Friday, 29 March 2019. Consequently, FMG argues that any problematic non‑compliance by it in terms of the time or manner of lodgement, do not ultimately undermine the essential underlying validity of its renewal application as lodged and invoking, to that end, the observations as made within the seminal decision of the High Court in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.
Hence, FMG contends that the interim reservation regime of s 61(3a) of the Mining Act was engaged here, to the extent that the Minister ought still to have evaluated the extension application it had lodged on its merits, rather than rejecting it out of hand on a basis as seen - that it had been lodged after the term that the exploration licence had expired at midnight on Saturday, 30 March 2019.

Evaluation of FMG's grounds

For the reasons which follow, I am of the end view that, ultimately, FMG's ground 2 application is made good and so I would uphold its application for judicial review on that basis alone. Consequently, I would also declare that the Minister's refusal, in effect, to consider the merits of FMG's renewal application for an extension of E47/1393 was a jurisdictional error, on that basis. Given that primary conclusion, I need only address briefly the other two grounds as contended for by FMG.

Grounds 1 and 2A

I would assess ground 1 as not made out as a matter of construction the proper of the Mining Regulations. This result is reached on the basis that, as regards FMG's chosen mode of electronic lodgement, via the departmental website, I assess that reg 59B(3) must also be necessarily applicable to that chosen electronic mode of lodgement by FMG. To say that only part of the reg 59B applied to enable FMG to file that way, but not then to accept an important aspect of that chosen regime as to the deeming of receipt, is to 'cherry pick' out of reg 59B and, unacceptably so, in my assessment as a matter of logic and interpretation.
As regards FMG's ground 2A, I am of the end view, taking account of the overall policy of the Mining Act, that a late electronic lodgement, albeit only to the extent of 89 seconds on Friday, 29 March 2019, is a disconformity of such significance and magnitude that it is not capable of being characterised within Project Blue Sky terminology as essentially permitting of the application of s 61(3a).
But as indicated, I am, in the end, persuaded that FMG's ground 2 is made out and so I turn to explain why that is so.

Ground 2

The full content of ground 2 of FMG's grounds of review reads in the following terms, together with six following particulars:
Ground 2
2.Further and alternatively, the Respondent made a jurisdictional error, or alternatively erred in law, by deciding, or proceeding on the basis, that the application for the extension of the term of E47/1393, lodged electronically on the Department's website on Friday 29 March 2019 at 16:31:29, was not lodged within the prescribed time (for the purpose of section 61(3) of the Mining Act 1978 and regulations 23A(1)(a)), being any time during the final year of the end of E47/1393 and which term was set to expire at midnight on Saturday 30 March 2019.
Particulars
(i)The application for the extension of term of E47/1393 was required, by section 61(3) and regulation 23A(1)(a), to be lodged during the final year of the term of the licence.
(ii)The final year of the term of E47/1393 was set to expire at midnight on Saturday 30 March 2019.
(iii)The final day for the lodgement of an extension of term application was a Saturday.
(iv)By reason of section 61(1)(e) or, alternatively, section 61(1)(h), of the Interpretation Act 1984, and the final day of lodgement of the extension of term application falling upon an excluded day (namely, a Saturday), the prescribed time for the purpose of section 61(3) and regulation 23A(1)(a) was taken to be extended until (and including) Monday 1 April 2019.
(v)Further, by a letter from the Respondent of 10 June 2019, the Respondent misapprehended or misconstrued the nature of his functions or powers when he decided or proceeded on the basis that the extension of term application for E47/1393 lodged on Friday 29 March 2019 at 16:31:29, even if deemed to have been received on Monday 1 April 2019, was, contrary to the application of section 61(1) of the Interpretation Act, out of time.
(vi)At all material times, the application for extension of the term of E47/1393 has been treated as 'rejected' on the official electronic register maintained for the purposes of the Mining Act.
The review challenge argument by FMG is essentially captured under (i) - (vi) of the above particulars. All the facts contended for under those particulars are made good upon the present application. The issue essentially is whether or not the 'excluded day' provisions of the Interpretation Act are engaged or not for the Mining Act.
I will observe in passing, however, as regards particular (v) above, that the contention essentially presents as somewhat harsh as against the Minister. This is because, as earlier mentioned, what had been put by FMG to the Minister at the time of his decision was, essentially, a request to use his power under s 162B of the Mining Act, the terms of which I have referred to earlier. Only subsequently have all parties since recognised the non‑application of that more contemporary provision now added within the Mining Act.

However, the critical last paragraph of the Minister's decision on 10 June 2019 adverse to FMG's request does, I accept, contain therein the necessary premise that FMG's application was received after the expiry of E47/1393, at midnight on Saturday, 30 March 2019. But that is the very question at issue here under ground 2.
If FMG's Interpretation Act invocation of the excluded day provisions is accepted, I note that there was no submission by amicus counsel that, for instance, there could be no scope for judicial review for the Minister's rejection decision under the grounds posited by FMG. This is even for circumstances where there was then a misapprehension all round (at the time) about s 162B being relevant, on which the Minister placed reliance.
Turning then to ground 2 itself, it is convenient to set out verbatim some relevant paragraphs of the written submissions of the amicus Attorney General filed 8 November 2019 (the amicus written submissions). They are essentially put forward in contradiction to FMG's ground 2 argument. As will be seen, those submissions are to the effect that although the Interpretation Act provisions might be said to be literally engaged here, nevertheless, the intent and object of the Mining Act by reference to s 3(1)(b) and s 3(1)(c) of the Interpretation Act is to the contrary.
Interestingly, the amicus written submissions seen under par 22 refer to a recent decision of the Court of Appeal of Victoria in Waterfront Place Pty Ltd v Minister for Planning [2019] VSCA 156 (Maxwell ACJ, T Forrest and Emerton JJA), made in reference to the Victorian version of Western Australia's Interpretation Act s 61(1)(e) and (h). The amicus written submissions draw my close attention to Waterfront Place, with the intent of correctly understanding what a consideration of whether a 'contrary intention appears' must entail.
Nevertheless, as I set them out next (included in the amicus written submissions), I would direct a particular attention to [4], [12] and [13] from Waterfront Place, which I assess, somewhat paradoxically under present circumstances, to actually better assist the contended ground 2 Interpretation Act invocation arguments of FMG, rather than to support the finding of an unstated contrary intention in the Mining Act - as I would suggest the amicus written submissions to contend.
In any event, I set out below those pars 21 - 28 of the amicus written submissions:
21.For the reasons identified below, a contrary argument is that the interpretive provisions do not apply to s. 61(3) of the Mining Act or regulation 23A(1)(a) of the Mining Regulations because the application of the provisions is inconsistent with the intent and object of the Mining Act within s. 3(1)(b) and (c) of the Interpretation Act.
22.The process of determining whether there is inconsistency as between application of interpretative provisions under the Interpretation Act and the intent or object of a particular Act has been suggested to be materially the same as determining whether a [sic] 'a contrary intention appears'. In considering whether 'a contrary intention appears' as to Victoria's version of Western Australia's s. 61(1)(e) and (h), Maxwell ACJ, T Forrest JA and Emerton JA recently said the following in Waterfront Place Pty Ltd v Minister for Planning at [3] - [4] and [12] - [13]:
'[3][T]hose needing to comply with statutory time limits need to have certainty in calculating when the relevant period will expire. To that end, State and Commonwealth interpretation statutes have for many years included counting rules for this purpose. For example, when the period in question is expressed to begin on, or be reckoned from, a particular day, the counting rule is that that day 'shall not be included in the period'. On the other hand, when the period is expressed to end on a particular day, the counting rule is that that day 'shall be included in the period'.
[4]Parliaments have also recognised that, in particular cases, a correct application of these counting rules will have the result that the specified period expires on a non-business day - a Saturday or Sunday or a public holiday. (We will use the term 'holiday' to cover these three alternatives.) As a matter of practical reality - at least where what has to be done is to give a notice or file a document - compliance on a holiday is impossible. Accordingly, the interpretation statutes include an additional rule to the effect that, if the period expires on a holiday, the act may be done on the next business day ('the extension rule').
...
[12]In our view, a court should be very slow to find an unstated contrary intention in circumstances such as these, where the general rule said to have been displaced is a rule of practical commonsense, reflecting the critical difference between weekdays and holidays, and is one which is relied on by those needing to comply with time limits (and their advisers). The threshold requirement for contrary intention - whether it be 'reasonable certainty' or 'necessary implication' -should be stringently applied.
[13]Axiomatically, both the language used in statutes and their interpretation by courts should be such as will promote certainty, comprehensibility and predictability. These are foundational requirements of the rule of law. Those considerations are, we think, of particular importance in relation to provisions of this kind, which are designed to provide clarity and certainty to individuals and corporations - and public officials -engaged in a wide range of activities. A person who is aware of the extension rule, and who sees nothing in the provisions imposing the time limit to suggest that the rule does not apply, should be able to proceed on the assumption that it does.' [footnotes omitted]
23.The starting point in this case is that regulation 23A(1)(a) requires applications to be lodged during the final year of the term of the exploration licence. As discussed in respect of Ground 1, there are times during the final year of the term of the licence where lodgement is not possible.
24.If the last day of a licence falls on an excluded day, the effect of applying s. 61(1)(e) or (h) is to enable lodgement after the expiry of the licence. By that point in time, the land will be open for mining under s. 18 of the Mining Act. Section 111A(1)(d) of the Mining Act confers limited power on the Minister, confined to mining leases, to grant a late renewal application and, if necessary, terminate any applications made following the expiry of the mining tenement and prior to renewal. If and when this occurs, s. 78(1)(b) of the Mining Act operates to retrospectively continue the mining tenement in force (from the expiry of the preceding term of the mining lease).
25.Although it is arguable that contrary (obiter) statements were made in Cazaly Iron at [93] and [246], it is respectfully submitted that mining tenements cannot be renewed or extended after they have expired, save for the limited circumstances as to mining leases in s. 111AA(1)(d). The result is that the former holder of an expired mining tenement must apply for a new tenement. If there are competing applications, the Minister has power to terminate or summarily refuse those applications under s. 111A(1)(c)(ii). The Minister will need to be satisfied on reasonable grounds that this is in the public interest.
26.FMG in its Outline of Submissions at [100] - [101] submits that s. 61(3a) of the Mining Act is intended to operate in respect of expired tenements. The contention in [100] is that s. 61(3a) applies from the time of the late lodgement (i.e. it is not contended that there is any retrospective operation). On this view, there is a time gap during which the land is open for mining and other persons are entitled to make an application for a tenement. The correct view, it is submitted, is that s. 61(3a) is only intended to apply when an application is made prior to expiry. The purpose of the provision is to prevent the land the subject of the licence becoming open for mining under s. 18 of the Mining Act in a case when an application is made prior to expiry but is not determined until after expiry. If an application is not made prior to expiry the land will become open for mining and s. 61(3a) will not be able to achieve its purpose.
27.The above construction of s. 61(3a) is supported by the approach taken by the legislature in relation to renewals of mining leases in s. 78 of the Mining Act. Section 78(1)(b) provides for a retrospective continuation of the mining lease if the Minister exercises power to grant a late renewal application under s. 111A(1)(d). In order for the Minister to exercise power under s. 111A(1)(d), the mining lease holder must have continued to observe the requirements of the expired mining lease as if the term of the lease had not expired. In other cases, it is unlawful for the tenement holder to engage in mining on the relevant land. The former tenement holder cannot engage in mining unless and until they apply for and are granted a new mining tenement.
28.If it is not possible to renew or extend after expiry, save for the circumstances in s. 111A(1)(d) of the Mining Act, application of s. 61(1)(e) or (h) of the Interpretation Act is inconsistent with the intent or object of the Mining Act. This does not give rise to undesirable uncertainty of the kind highlighted in Waterfront Place. To the contrary, undesirable uncertainty arises if the opposite conclusion is reached because it will create a situation in which applications for renewal can be lodged after expiry.
By reference to the observation under par 24 of the amicus written submissions above concerning land being open for mining under s 18 of the Mining Act, and in reference to s 111A(1)(d) of the Mining Act, as regards mining leases and late renewal applications, my end assessment is that that policy argument is not destructive to the excluded day/next day computation of time for the purposes of a written law delivered under s 61(1)(e) or (h) of the Interpretation Act.
Most of the submissions put by the amicus Attorney General, by my assessment, look also to proceed upon the basis of the founding assumption that the term of E47/1393 had fully run, at midnight on Saturday, 30 March 2019. However, if the excluded day/next day argument is accepted, then that will not be the case and the interim preservation work by s 61(3a) will be in place. So it is that arguments which proceed upon the premised foundation of accepting that expiry premise look to me to be erected upon a questioned foundation. So also, of course, was the Minister's refusal decision, as now seen. Likewise, the submission put under par 25 of the amicus written submissions looks to be erected upon the same premise of necessary expiry.
Likewise, as regards par 26, the premise of the contended 'correct view' is that FMG's application was not made 'prior to expiry'. There appears no argument about the force and effect of s 61(3a) of the Mining Act as regards a renewal application that is lodged within time. Again, the recurrent question is whether or not this FMG electronically submitted renewal application was lodged within time before the expiry of E47/1393, given that its expiry was only later, at midnight on a Saturday and where, by s 61(3), the 'prescribed time' must be ascertained by reference to a regulation. So ascertained under reg 23A(1)(a) the extension lodgement requirement is only expressed to be for 'during the final year of the term of the licence'. That criteria, as prescribed, was met, in my view.
Under such circumstances, I align myself to the views of the Court of Appeal of Victoria in Waterfront Place at [12], to the effect that a court should be very slow to find an unstated contrary intention in circumstances where the rule sought to be displaced reflects practical common sense and the critical difference between weekdays and holidays.
I am also particularly influenced here by the same policy considerations of certainty, comprehensibility and predictability as discussed by the Waterfront Place Court of Appeal at [13], as foundational requirements of the rule of law. I assess nothing inconsistent against those touchstones by accepting FMG's ground 2 arguments concerning the excluded day/next day provisions of the Interpretation Act relevantly being engaged there, as regards an extension within the exploration licence renewal regime grounded upon prescribed timing requirements.
I would also respectfully assess as directly applicable the observation at the conclusion of [13] by the Waterfront Place Court of Appeal to the effect that:
A person who is aware of the extension rule, and who sees nothing in the provisions imposing the time limit to suggest that the rule does not apply, should be able to proceed on the assumption that it does.
The amicus written submissions submit to the contrary, but that policy contention, overall, is a matter of suggested impression as regards the tenement uncertainty and the policy and objects of the Mining Act. But given the explicit interim preservation regime that already applies pending a merits determination of an extension application under s 61(3a), there is inherently already an element of some uncertainty accompanying a position that is essentially unknown until a Minister makes a decision one way or the other about granting an extension or not. I do not assess the position from a policy perspective overall as being unduly exacerbated from a perspective of policy certainty, comprehensibility and predictability to allow the engagement potentially of the excluded day/next day extension provisions of the Interpretation Act, when factually appropriate.
Of course, if a potential engagement of that Interpretation Act excluded day/next day regime is assessed later as unpalatable to the executive or to the legislature, then a capacity to say so explicitly in the legislation is always there, rather than leaving the matter unstated and to be divined, as is the present position.
Nor in reference to par 27 of the amicus written submissions am I significantly influenced by what is the position expressed as concerning renewals of mining leases. A mining lease is a far more intensive and elevated form of mining tenement. It is hardly surprising that for such tenements where there has likely been a very significant investment of capital by an owner a more explicit and direct provision dealing with late renewal applications seen enacted. The associated negative corollary position to the effect that this indicates a position of inconsistency as regards lesser tenements, such as exploration licences, on my assessment, is not sufficiently persuasive to override the Waterfront Placepolicy considerations now mentioned.
Grateful as I remain then for the careful assistance of a contradictor on the present application and for the helpful submissions provided by the Attorney General as amicus and by counsel, particularly for directing me to the decision of the Victorian Court of Appeal in Waterfront Place, in the end, I am not persuaded that the intent or object of the Mining Act, or the intent or object of its accompanying subsidiary legislation (ie, the Mining Regulations) is inconsistent with an engagement to present circumstances of s 61(1)(e) and (h) of the Interpretation Act, as regards a computation of time for the purposes of s 61(2) of the Mining Act and reg 23A(1) and reg 59B(3) of the Mining Regulations.

Conclusion

Accepting that the renewal application of FMG was lodged electronically and is deemed to have been lodged at 8.30 am on Monday, 1 April 2019 as the next working day it can be seen that this is not, in the end, determinative. This is because E47/1393, in the words of s 61(1)(e), could be renewed up to the time that it expired at midnight on Saturday, 30 March 2019. However, Saturday, 30 March 2019 was an excluded day. Consequently, it was open to FMG to lodge its renewal application of its exploration licence on the next day that was not an excluded day, namely, on Monday, 1 April 2019. By the deeming provisions of the Mining Regulations it was taken to have done so at 8.30 am on that day. Consequently, FMG's exploration licence by reason of the terms of s 61(3) being met was preserved for a determination on the merits by the Minister, by s 61(3a). My conclusion means simply that FMG's renewal application can be either granted or dismissed on its merits, once so considered by the Minister.
After publication of these reasons, I will hear the parties, if necessary, concerning the terms of appropriate orders vis-à-vis certiorari and by a declaration giving effect to this decision. However, if the terms of orders giving effect to these reasons can be agreed upon and submitted, say, within seven days from the publication of these reasons, then consensual orders can issue on the papers at that time.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DW
Associate to the Honourable Justice Martin
14 JANUARY 2020