Forrest and Forrest Pty Ltd v O'SULLIVAN - [2020] WASC 468

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   FORREST & FORREST PTY LTD -v- O'SULLIVAN [2020] WASC 468
CORAM:   TOTTLE J
HEARD:   15 SEPTEMBER 2020
DELIVERED          :   16 DECEMBER 2020
FILE NO/S:   CIV 2843 of 2019
BETWEEN:   FORREST & FORREST PTY LTD
Applicant
AND
WARDEN JOHN FRANCIS O'SULLIVAN
Respondent
QUARRY PARK PTY LTD
First Other Party
THE HON WILLIAM JOSEPH JOHNSTON MLA, MINISTER FOR MINES AND PETROLEUM
Second Other Party

Catchwords:

Mining law - Judicial review - Whether warden determined application in excess of jurisdiction - Whether a valid application is a necessary precondition to the exercise of the warden's power - Whether valid marking out is a necessary precondition to the exercise of the warden's power - Jurisdictional error established - Warden's decision quashed

Mining law - Prospecting licence - Whether marking out of tenement in accordance with s 105 of the Mining Act 1978 (WA) is a necessary precondition to the exercise of warden's jurisdiction to grant a prospecting license - Whether right of appeal to Minister where warden has acted in excess of jurisdiction - Proper construction of the Mining Act 1978 (WA) - Application principle of construction of strict compliance with legislative regime allowing for the disposition of mineral resources of the State

Legislation:

Mining Act 1978 (WA), s 40, s 41, s 42, s 56(1), s 105(1), s 105A
Mining Regulations 1981 (WA), reg 11, reg 59
Western Australia Constitution Act 1890, 53 & 54 Vict Ch 26 (UK), s 3

Result:

Application granted
Decision quashed

Category: A

Representation:

Counsel:

Applicant	:	Mr J Gilmour QC & Mr A J Papamatheos
Respondent	:	No appearance
First Other Party	:	No appearance
Second Other Party	:	No appearance
Amicus Curiae	:	Mr B D Nelson & Mr S Olynyk

Solicitors:

Applicant	:	Clayton Utz
Respondent	:	No appearance
First Other Party	:	No appearance
Second Other Party	:	No appearance
Amicus Curiae	:	Attorney General for Western Australia

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

Anglogold Ashanti Australia Ltd v Monument Exploration Pty Ltd [2019] WAMW 13
Anglogold Ashanti Australia Ltd v White Cliff Nickel Ltd [2010] WAMW 9
Bromley v Muswellbrook Coal Co Pty [1973] HCA 56; (1973) 129 CLR 342
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Crocker Consolidated Pty Ltd v Wille [1988] WAR 187
Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Ex parte Melville v Hunter Resources Ltd (Unreported, WASC Full Court, Library No 6645-C, 24 March 1987)
Ex parte Trythall v Aplo Pty Ltd (Unreported, WASC Full Court, Library No 8982A-C, 7 August 1991)
Forrest & Forrest Pty Ltd v Wilson [2015] WASC 181
Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510
Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Mohammadi v Bethune [2018] WASCA 98
Nicholas v Western Australia [1972] WAR 168
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Quarry Park Pty Ltd v Forrest & Forrest Pty Ltd [2019] WAMW 14
R v Commissioner of Patents; Ex parte Weiss [1939] HCA 7; (1939) 61 CLR 240
R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407
Re Adams and the Tax Agents Board (1976) 12 ALR 239
St Barbara Ltd v Minister for Energy, Resources, Industry & Enterprise [2008] WASCA 248
Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516
Thredgold v Australian Community Pharmacy Authority (1999) 93 FCR 465
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [2016] WASCA 50; (2016) 49 WAR 476
Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134

TOTTLE J:

Introduction

The issue in this application is whether marking out land, the subject of an application for a prospecting licence, in accordance with s 105 of the Mining Act 1978 (WA) (the Act) is an essential condition that must be satisfied in order to enliven the jurisdiction to grant a prospecting licence under s 40 of the Act.
The applicant succeeded in its objections to the grant of two prospecting licences to the first other party, Quarry Park. The warden refused the applications on the basis that Quarry Park had not marked out the land the subject of its applications in the prescribed manner. The warden, however, rejected the applicant's submission that compliant marking out was a jurisdictional fact, that is, a criterion the satisfaction of which enlivens the power of the warden to determine the application.[1] The warden held that whether Quarry Park had marked out in accordance with the Act was a matter to be determined within the warden's jurisdiction.
[1] Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 [28] (Gleeson CJ, Gummow, Kirby and Hayne JJ).
The applicant submits that the warden's conclusion on the jurisdictional issue is significant because, so the applicant submits, it is not open to Quarry Park to appeal to the Minister (the second other party) against the refusal to grant a prospecting licence under s 56 of the Act where the refusal is made outside of the warden's jurisdiction. This is because the applicant contends that compliant marking out is a pre-condition to a valid application for a prospecting licence that in turn is an essential preliminary to the power to grant a prospecting licence.
The applicant challenges the warden's conclusion that compliant marking out does not condition the power to grant a prospecting licence application. If its contention that the warden had no jurisdiction to grant Quarry Park's applications is accepted, it maintains the Minister's appeal jurisdiction has not been enlivened. On that basis the applicant seeks orders that the warden's decision be quashed and a declaration that the Minister, is without jurisdiction to consider or determine any appeal from the warden's decision under s 56(1) of the Act.
The warden, Quarry Park and the Minister have filed notices of intention to abide by the decision of this court. The Attorney General for Western Australia has appeared as amicus curiae and I have been assisted by the submissions made on the amicus's behalf.

The legislative scheme

An overview

In St Barbara Ltd v Minister for Energy, Resources, Industry & Enterprise,[2] Steytler P (Buss JA and Newnes AJA agreeing) outlined the general scheme of the Act in the following terms:[3]
[2] St Barbara Ltd v Minister for Energy, Resources, Industry & Enterprise [2008] WASCA 248.
[3] St Barbara [22] - [24], [26].
(1)The principal object of the Act is that of regulating access to and exploitation of the State's mining resources.
(2)The Act is to be administered by the Minister: s 10(1). The Minister is assisted by a department of the Public Service of the State, encompassing a number of officers, including mining registrars: s 11. The appointment of persons holding office as magistrates as wardens of mines is provided for by s 13(1).
(3)All land defined in s 8 as 'Crown land', but not the subject of a mining tenement, is open for mining: s 18. However, the Minister may, by an instrument in writing under his hand, exempt any land, not being private land or land that is the subject of a mining tenement or of an application therefor, from mining or from a specified mining purpose or from the Act or a specified provision of the Act: s 19(1)(a).
(4)Part IV of the Act provides for the grant of mining tenements. These might take the form of prospecting licences (div 1), exploration licences (div 2), retention licences (div 2A), mining leases (div 3), general purpose leases (div 4) and miscellaneous licences (div 5).
(5)Different regimes are provided for depending upon the nature of the mining tenement applied for.
(6)In the case of an application for an exploration licence, a retention licence, a mining lease or a general purpose lease, the application comes first before a mining registrar (where there is no objection) or a mining warden (where there is an objection). The registrar or warden, as the case may be, makes a recommendation to the Minister, who decides the application: s 57(1), s 59(2), s 59(4) - (6) (exploration licences); s 70B(1), s 70D(2), s 70D(4) - (6) (retention licences); s 71, s 75(2), s 75(4) - (6) (mining leases); s 86(1), s 86(4) (general purpose leases).
(7)On the other hand, in relation to prospecting licences and miscellaneous licences, the decision is made by a mining registrar or warden (s 40(1), s 42, s 91(1), s 92), subject to a right of appeal to the Minister against a refusal or a grant on unreasonable conditions (s 56, s 94(3) - (4)).
(8)It is plain from the scheme of the Act that the ultimate decision making power rests largely with the Minister.

Marking out requirements

Part V of the Act contains 'General Provisions relating to mining and mining tenements' and includes s 105 which concerns the requirement to mark out a mining tenement. Relevantly s 105 states:
105.Marking out of mining tenement
(1)Before an application for a mining tenement other than an exploration licence, a retention licence or a miscellaneous licence is made, the land in relation to which the mining tenement is sought shall be marked out in the prescribed manner and in the prescribed shape, and for the purpose of any claim for compensation for loss or damage suffered or likely to be suffered resulting or arising therefrom under section 123, or for an order under section 124(2), the activities involved in the marking out shall be taken to be activities relating to prospecting and, as such, to constitute mining.
The Mining Regulations 1981 (WA) (the Regulations) prescribe the manner of marking out. Regulation 11 states:
An applicant for a prospecting licence shall comply with the regulations in Part V as to marking out and applying for the licence.
Part V of the Regulations contains reg 59 which states:
59.Manner of marking out tenement (Act s. 105)
(1)Land in respect of which a person is seeking a mining tenement shall, except where other provision is expressly made, be marked out -
(a)by fixing firmly in the ground -
(i)at or as close as practicable to each corner or angle of the land concerned; or
(ii)if there is an existing survey mark at a corner or angle of the land concerned, as close as practicable to the survey mark without moving, changing or otherwise interfering with the survey mark,
a post projecting at least 1 m above the ground; and
(b)subject to subregulation (3), by either -
(i)cutting 2 clearly identifiable trenches; or
(ii)placing 2 clearly identifiable rows of stones,
each at least 1 m long from each post in the general direction of the boundary lines; and
(c)then by fixing firmly to one of the posts as the datum post, notice of marking out in the form of Form 20.
(2)Where the land adjoins other land in respect of which the same person is seeking or holds a mining tenement, common posts and, if required, common trenches or common rows of stones may be used for the marking out of each parcel of land.
(3)Where a post is fixed as close as practicable to an existing survey mark under subregulation (1)(a)(ii), marking out in the manner described in subregulation (1)(b) is not required.
Section 105A of the Act deals with the priorities between applicants for tenements. Relevantly it states:
(1)Subject to section 111A, where more than one application is received for a mining tenement … in respect of the same land or any part thereof, the applicant who first complies with the initial requirement in relation to his application has, subject to this Act, the right in priority over every other applicant.
Subject to certain exceptions, for the purposes of an application for a prospecting licence and a mining lease, the 'initial requirement' referred to in s 105A is marking out in the prescribed manner.

Applications for prospecting licenses

Sections 40 - 42 of the Act deal with applications for prospecting licences. They state:
40.Grant of prospecting licence
(1)Subject to this Act, the mining registrar or the warden, in accordance with section 42, may, on the application of any person grant to that person a licence to be known as a prospecting licence which shall be subject to such conditions as are prescribed or are imposed pursuant to section 24, 24A or 25 or are specified in the licence.
(2)The area of land in respect of which any one prospecting licence may be granted shall not exceed 200 ha.
(3)A person may be granted more than one prospecting licence.
41.Application for prospecting licence
(1)An application for a prospecting licence —
(a)shall be made in the prescribed form; and
(b)shall be accompanied by the amount of the prescribed rent for the first year or portion thereof as prescribed; and
(c)shall be made by reference to a written description of the area of land in respect of which the licence is sought, and be accompanied by a map on which are clearly delineated the boundaries of that area; and
[(d)deleted]
(e)shall be lodged in the prescribed manner; and
(f)shall be accompanied by the prescribed application fee.
(2)Within the prescribed period the applicant shall serve such notice of the application as may be prescribed, on the owner and occupier of the land to which the application relates and on such other persons as may be prescribed.
(3)An applicant for a prospecting licence shall at the request of the mining registrar or warden furnish such further information in relation to his application, or such evidence in support thereof, as the mining registrar or warden may require but the mining registrar or warden shall not require information or evidence relating to assays or other results of any testing or sampling that the applicant may have carried out on the land the subject of his application.
42.Determination of application for prospecting licence
(1)A person who wishes to object to the granting of an application for a prospecting licence shall lodge a notice of objection within the prescribed time and in the prescribed manner.
(2)Where no notice of objection is lodged within the prescribed time, or any notice of objection is withdrawn, the mining registrar may -
(a)grant the prospecting licence if satisfied that the applicant has complied in all respects with the provisions of this Act; or
(b)refuse the prospecting licence if not so satisfied.
(3)Where a notice of objection -
(a)is lodged within the prescribed time; or
(b)is not lodged within the prescribed time but is lodged before the mining registrar has granted or refused the prospecting licence under subsection (2) and the warden is satisfied that there are reasonable grounds for late lodgment,
and the notice of objection is not withdrawn, the warden shall hear and determine the application for the prospecting licence on a day appointed by the warden and may give any person who has lodged such a notice of objection an opportunity to be heard.
The rights conferred by a prospecting licence are specified in s 48 and include: the right to enter upon land for the purposes of prospecting for minerals with employees, vehicles, machinery and equipment as may be necessary for prospecting or expedient for the purpose of prospecting; the right to carry on operations and works necessary for prospecting; the right to excavate, extract or remove, earth, soil, rock, stone, fluid or mineral bearing substances subject to prescribed limits; and certain rights in respect of water.
Additionally, the holder of a prospecting licence has a right in priority to apply for and receive a mining lease or general purpose lease over the land the subject of the prospecting licence.[4]
[4] Mining Act 1978 (WA), s 49(1).
A right of appeal against a refusal to grant an application for a prospecting licence or against the imposition of conditions an applicant considers unreasonable is conferred by s 56 which states:
56.Appeal against refusal to grant prospecting licence
(1)Where the mining registrar or the warden refuses to grant an application for a prospecting licence or grants the application on conditions the applicant considers unreasonable, the applicant may within the time and in the manner prescribed appeal to the Minister against such refusal or conditions as the case may be.
(2)The Minister may dismiss the appeal or uphold the appeal and grant the application on such conditions as he considers reasonable.

Applications for mining leases

The procedure governing applications for mining leases was referred to both by the warden in his reasons and in the submissions made on this application and it is helpful to provide an overview of some features of the process governing such applications:
(a)'Subject to [the] Act' the grant of a mining lease lies with the Minister.[5]
[5] Mining Act 1978 (WA), s 71.
(b)Subject to certain exceptions, there is a requirement to mark out the land that is the subject of an application for a mining lease in accordance with s 105.
(c)An application for a mining lease is required to be made in the prescribed form[6] and to be accompanied by: the prescribed rent for the first year of the term;[7] the prescribed application fee;[8] a mining proposal[9] or a statement (mining operations statement) and a mineralisation report.[10]
(d)The mining operations statement and the mineralisation report are required to be made available for public inspection.[11]
(e)If an application is accompanied by a mining operations statement and a mining report the Director, Geological Survey, is required to provide the Minister with a report as to whether there is significant mineralisation in the land to which the application relates (the s 74A report).[12] The s 74A report is required to be based solely on information contained in the mineralisation report and any further information provided by an applicant in response to a request by the Director.[13]
(f)Persons may object to a mining lease application.[14] If there are no objections, however, the mining registrar is to forward a report to the Minister recommending grant or refusal of the mining lease and setting out the reasons for the recommendation.[15] The mining registrar is required to recommend the grant of the mining lease if satisfied that the applicant has complied in all respects with the provisions of the Act and recommend the refusal if not so satisfied.[16]
(g)If there is an objection, the warden is to hear the application,[17] and as soon as practicable after hearing the application forward the Minister, among other matters, a report recommending grant or refusal of the mining lease.[18]
(h)Where an application is accompanied by a mining operations statement and a mineralisation report, a mining registrar may not make a recommendation and a warden may not hear an application unless the mining registrar or warden (as the case may be) has received the s 74A report and it states that there is significant mineralisation in the land to which the application relates.[19]
(i)On receipt of a report from a mining registrar or warden the Minister may grant or refuse the application irrespective of the recommendation made in the report and irrespective of whether 'the applicant has or has not complied in all respects with the provisions of this Act'.[20]

Informality and irregularity

[6] Mining Act 1978 (WA), s 74(1)(a).

[7] Mining Act 1978 (WA), s 74(1)(b).

[8] Mining Act 1978 (WA), s 74(1)(c).

[9] Mining Act 1978 (WA), s 74(1)(ca)(i).

[10] Mining Act 1978 (WA), s 74(1)(ca)(ii).

[11] Mining Act 1978 (WA), s 74(5).

[12] Mining Act 1978 (WA), s 74A.

[13] Mining Act 1978 (WA), s 74A(3).

[14] Mining Act 1978 (WA), s 75(1).

[15] Mining Act 1978 (WA), s 75(2).

[16] Mining Act 1978 (WA), s 75(3).

[17] Mining Act 1978 (WA), s 75(4).

[18] Mining Act 1978 (WA), s 75(5).

[19] Mining Act 1978 (WA), s 75(2a), s 75(4a).

[20] Mining Act 1978 (WA), s 75(6).

Under s 116(2) of the Act, subject to a presently irrelevant exception, a mining tenement granted under the Act 'shall not be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the grant'.

Relevant authorities on the construction of the Act

It is helpful to refer to three authorities that featured prominently in the warden's reasons and in the submissions before this court.

Hunter Resources v Melville

In Hunter Resources Ltd v Melville,[21] the High Court (Wilson, Dawson and Toohey JJ, Mason CJ and Gaudron J dissenting) held that an applicant for a prospecting licence was required to comply strictly with the requirements of s 105 as to marking out and substantial compliance was not sufficient. All members of the court, however, held that the warden had jurisdiction to determine the application whether or not the applicant had complied with the marking out requirements.

Forrest & Forrest v Wilson

[21] Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234.

In Forrest & Forrest v Wilson[22] the majority (Kiefel CJ, Bell, Gageler and Keane JJ) held that the requirements that: an application for a mining lease be accompanied by a mining operations statement and a mineralisation report in accordance with s 74(1)(ca)(ii); and, that a 74A report based on the mineralisation report be provided to the warden before the warden hears an application and objection, imposed conditions precedent to the exercise of the power to grant a mining lease conferred by s 71. The majority considered the nature of the regime established by the Act was an important matter of context and stated:[23]
… where a statutory regime confers power on the executive government of a State to grant exclusive rights to exploit the resources of the State, the regime will, subject to provision to the contrary, be understood as mandating compliance with the requirements of the regime as essential to the making of a valid grant. When a statute that provides for the disposition of interests in the resources of a State 'prescribes a mode of exercise of the statutory power, that mode must be followed and observed'. The statutory conditions regulating the making of a grant must be observed. A grant will be effective if the regime is complied with, but not otherwise.
This approach to statutory construction had its origin in colonial times in legislation which vested the disposition of land not already disposed of by the Crown in the legislatures of the Australian colonies. Nothing said in Project Blue Sky diminished the force of the authorities which support this approach. Adherence to this approach supports parliamentary control of the disposition of lands held by the Crown in right of the State. It gives effect to an abiding appreciation that the public interest is not well served by allowing non-compliance with a legislative regime to be overlooked or excused by the officers of the executive government charged with its administration. To permit such a state of affairs might imperil the honest and efficient enforcement of the statutory regime, by allowing scope for dealings between miners and officers of the executive government in relation to the relaxation of the requirements of the legislation. One can be conﬁdent that such a state of affairs was not intended by the Act. (footnotes omitted)
[22] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510.
[23] Forrest & Forrest v Wilson [64] - [65].
The legislation enacted in colonial times to which the majority referred in the passage quoted above is the Western Australia Constitution Act 1890, 53 & 54 Vict Ch 26, s 3 of which provides:
The entire management and control of the waste lands of the Crown in the colony of Western Australia, and of the proceeds of the sale, letting, and disposal thereof, including all royalties, mines, and minerals, shall be vested in the legislature of that colony.
In Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd,[24] McLure P, with whom Newnes JA and Corboy J agreed, held the powers vested in the Minister in respect of mining on Crown land are exclusively those contained within the Act. Her Honour rejected any suggestion that because s 10 stated that the Minister shall administer the Act that the Minister's statutory powers and functions were impliedly enlarged or supplemented.[25]
[24] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [2016] WASCA 50; (2016) 49 WAR 476.
[25] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [42] - [43].
The historical context and effect of the Constitution Act 1890 on the disposition of mineral resources in Western Australia was explained by the Full Court of this court in Nicholas v Western Australia.[26] In Nicholas, Jackson CJ (with whom Virtue SPJ agreed) referred to the Constitution Act 1890 and stated:[27]
From the time of this enactment dealings not only in Crown land but in mines and minerals thereon could only be authorised and supported by statutory authority. Hence rights of occupancy of Crown land for the purpose of prospecting for minerals could only be granted in accordance with an Act of Parliament. (emphasis supplied)
[26] Nicholas v Western Australia [1972] WAR 168.
[27] Nicholas v Western Australia, 172.
Burt J, as his Honour then was, concurred in the result and observed:
… [T]he creation in the subject of an interest in such land or an interest in the minerals therein requires statutory authority … and a transaction which in terms would produce the result if entered into without such authority is simply beyond power and beyond the reach of equity and cannot by means of an estoppel or otherwise create or give rise to any equitable interest.
…
… [T]he case is not simply one in which the propounded estoppel would operate to override a statutory discretion conferred upon the Minister for Mines; it is a case in which to give effect to it would be to override the statutory restriction placed upon the power.
…
The powers given to Minister cannot extend beyond the power of the Crown; the statute does not authorise the Minister by contract or by arrangement or otherwise to do that which in the absence of statutory authority the Crown has no power to do.
To return to Forrest & Forrest v Wilson the majority of the High Court made a number of instructive observations about the construction of the Act generally and, more specifically, about the construction of the provisions regulating the grant of mining leases. Those observations may be summarised as follows:
(a)Both the express terms and the structure of the provisions as sequential steps in an integrated process leading to the possibility of the grant of a mining lease by the Minister indicated that they were essential preliminaries to the exercise of power.[28]
[28] Forrest & Forrest v Wilson [63].
(b)The provisions were not expressed in indeterminate terms: they imposed rules which could be easily identified and applied.[29]
[29] Forrest & Forrest v Wilson [63].
(c)Any inconvenience suffered by treating the requirements of the Act as conditions precedent to the exercise of the Minister’s power would enure only to those with some responsibility for the non-observance.[30]
[30] Forrest & Forrest v Wilson [63].
(d)The contrary view would disadvantage both the public interest and individuals who were within the protection of the Act.
(e)The clear meaning of s 74(1)(ca)(ii), as a matter of ordinary parlance, was that the documentation relied upon must have been lodged at the same time as the application was lodged, as each of the courts below held. The text of s 74(1)(ca) did not admit of any ambiguity or doubt on this point. The tenor of s 74(1)(ca)(ii) was both precise and prescriptive, conveying an intention not to countenance any degree of non-compliance with the requirement.[31]
[31] Forrest & Forrest v Wilson [67].
(f)There is no occasion to presume that the warden is authorised by the Act to make a mistake as to the facts upon which his or her jurisdiction depends.[32]
[32] Forrest & Forrest v Wilson [79].
(g)A failure to comply with para (b) or (c) of s 74(1) (that is, making an application not accompanied by rent for the first year or not accompanied by the prescribed application fee) should attract the same consequence as making an application not accompanied by a mineralisation report, that is, invalidity because:[33]
[33] Forrest & Forrest v Wilson [69].
... [I]t is not possible to accept that the legislation intended that an application for a mining lease might proceed in the case of non-compliance with para (b) or (c) of s 74(1). The executive government of Western Australia was given no warrant to allow an application for the grant of valuable rights to exploit minerals in the State, and the concomitant expense to the State and administrative burden on its officers, to proceed 'on credit'.
(h)The conclusion that an application accompanied by a mineralisation report was a jurisdictional fact was supported by the objects of the Act, specifically:
(i)Non-observance of the requirements of the regime governing the grant of mining leases was apt to disadvantage both the public interest and individuals in ways that the Act did not intend.[34]
[34] Forrest & Forrest v Wilson [63].
(ii)Compliance with the regime was apt to improve administrative efficiency and to avoid backlogs by reducing the number of defective applications.[35]
[35] Forrest & Forrest v Wilson [84].
(iii)Reduction of the problems of management of applications for mining tenements, an object of the prescriptive regime, would be furthered by the Act denying validity to acts done in disregard of the statute.[36]
[36] Forrest & Forrest v Wilson [84].
(iv)Whether that objective might be more efficiently accomplished by relying upon those affected by non‑compliance with the Act to take proceedings to halt a non‑compliant decision-making process was a matter of policy for the legislature. A legislative judgment that that would be an unreliable mode of ensuring compliance with the Act is perfectly intelligible.[37]
[37] Forrest & Forrest v Wilson [85].
(v)Where non-observance of a condition bearing upon the exercise of a statutory power would work to the material disadvantage of individuals for whose protection the condition exists, considerations of justice and convenience tell strongly in favour of holding invalid acts done in neglect of the condition.[38]
(vi)The Act's insistence an application be accompanied by a mineralisation report served the purpose of ensuring that owners and occupiers of subject land were not troubled unnecessarily or prematurely by half-baked proposals.[39]
(vii)The Act, in requiring any objection to be lodged by an owner or occupier of land affected by an application for a mining lease within a prescribed time from the service of the application, ensured that an objection would be informed by reference to the information concerning mineralisation which accompanied the application for the mining lease. The provision of the informed views of those who objected to an application was apt to improve the quality of decision-making by those charged with the administration of the Act. A failure to comply with the requirements of s 74(1)(ca)(ii) could thus compromise the rights of objectors.[40]
(viii)In addition, the relaxed view of the effect of non-compliance with the Act favoured by the Court of Appeal was apt to enure to the disadvantage of miners in competition for access to the State’s resources.[41]
(i)The majority expressed the following view on the relationship between non-compliance with the requirements of the Act and the ambit of operation of s 116(2):[42]
Section 116(2) was not cast in terms which were apt to confer indefeasibility of title in respect of any non-compliance with the requirements of the Act. Unlike s 75(6)(b), s 116(2) did not speak of a want of "compliance" with the provisions of the Act, but of "informality or irregularity" in the application or proceedings. "Informality" means a want of legal form as distinct from a want of legal substance. The term "irregularity" refers to a lack of regularity in the method or manner in which a power is exercised: it is a term used in deliberate contrast to an act beyond power. The failure of the warden to observe the requirement of s 75(4a) cannot fairly be described as an "informality or irregularity in the application or in the proceedings previous to the grant" of the mining lease.

Crocker Consolidated v Wille

[38] Forrest & Forrest v Wilson [85].

[39] Forrest & Forrest v Wilson [86].

[40] Forrest & Forrest v Wilson [88].

[41] Forrest & Forrest v Wilson [89].

[42] Forrest & Forrest v Wilson [76].

Finally, reference must be made to the decision of CrockerConsolidated Pty Ltd v Wille,[43] in which the Full Court of this court rejected the proposition that marking out in accordance with s 105 of the Act (as then enacted) was an essential pre-condition of the grant of a prospecting licence. The presence of now repealed s 40(4) was an important consideration that led Burt CJ, with whom Olney J agreed, and Wallace J to conclude that marking out was not an essential pre-condition to the grant of a prospecting licence. As it then was, s 40(4) relevantly provided:
[43] Crocker Consolidated Pty Ltd v Wille [1988] WAR 187.
(4)Where on an application for a prospecting licence -
(a)the applicant satisfied the mining registrar that the land to which the application relates is unoccupied Crown land or is Crown land which is used for grazing purposes only
… but is otherwise unoccupied;
(b)no notice of objection is lodged at the office of the mining registrar within the prescribed time; and
(c)the applicant satisfies the mining registrar that all persons required pursuant to section 41(2), or section 118, to be served with a notice of the application have been so served, and that a period of not less than 30 days has elapsed thereafter,
the approval of the warden to the grant of the licence may be deemed to have been given and a licence in the prescribed form may thereupon be issued mining registrar ...
As marking out was not one of the three matters about which an applicant had to satisfy a mining registrar before the warden's approval to the grant of a prospecting licence was deemed to have been given, s 40(4) was taken to acknowledge, in effect, that marking out was not an essential pre‑condition to the jurisdiction to grant a prospecting licence.

The grounds of review

Before turning to the background of the matter it is helpful to set out the basis upon which the applicant put its case. The amended application for review was expressed in the following terms:
1The Respondent made a jurisdictional error by purporting to hear and determine purported applications for prospecting licences 08/671 and 08/672 (Purported Applications) under sections 40(1) and 42(3) of the Mining Act 1978 (WA) as:
(a)Quarry Park Pty Ltd had failed to mark out the relevant land, in the manner required by section 105(1) and regulations 11 and 59(1)(b) of the Mining Regulations 1981, before purporting to make the Purported Applications; and
(b)by section 105(1), properly construed, compliant marking out in the prescribed manner, is an essential preliminary to the making of a valid application for a prospecting licence and any jurisdiction arising under sections 40(1) and 42(3).
Particulars
(i)Quarry Park Pty Ltd marked out land that it intended to be the subject of the Purported Applications by cutting trenches or placing stones at distances between 25cm and 75cm away from posts, rather than from the posts, for 7 of the 8 comer lines for each of the Purported Applications.
(ii)By section 105(1) of the Mining Act, before an application for a prospecting licence is made, the land in relation to which the prospecting licence is sought shall be marked out in the manner prescribed in regulations 11 and 59(1)(b) of the Mining Regulations, which, relevantly, required trenches to be cut and stones placed from the posts, rather than at distances away from the posts.
(iii)The marking out referred to in (i) above did not comply with section 105(1) and regulations 11 and 59(1)(b).
(iv)On its proper construction, section 105(1) of the Mining Act, read with sections 40(1), 41(1)(a) and 42(3), make compliant marking out an essential preliminary, jurisdictional fact or pre‑condition to a valid application for a prospecting licence under section 41(1)(a) and any jurisdiction arising under sections 40(1) and 42(3).
(v)The Respondent concluded that marking out is not a jurisdictional fact (at [2019] WAMW 14, [39]) and purported to hear and determine the Purported Applications under sections 40(1) and 42(3) ([2019] WAMW 14, [62]).
(vi)As an administrative decision-maker, the Respondent should have, in forming an opinion as to the predicates to his jurisdiction or statutory function arising, identified that the jurisdictional fact had not been met, identified that he was without jurisdiction and, therefore, declined to hear and determine the Purported Applications under sections 40(1) and 42(3) of the Mining Act,
Consequences
2.Further, if the Purported Applications are invalid and the Respondent had no jurisdiction to hear and determine the Purported Applications under sections 40(1) and 42(3) of the Mining Act 1978 (WA), then the Second Other Party has no jurisdiction to consider or determine any purported appeal by Quarry Park Pty Ltd under section 56(1) of the Mining Act as, for the purpose of enlivening jurisdiction under section 56(1), the Warden has not refused to grant an application for a prospecting licence.

The facts

On 6 August 2013 Quarry Park purported to mark out two adjoining areas of land in the Ashburton mineral field, in the Pilbara region of Western Australia. At the corners of each rectangular area, posts were erected. Starting from distances between 25cm and 75cm away from the posts, trenches were cut or stones placed in rows at least 1m long in the general direction of the boundary lines.
On 7 August 2013 Quarry Park lodged applications for prospecting licence (applications P08/671 and P08/672) with the Mining Registry at Karratha and on 10 September 2013 the applicant lodged objections to those applications.
The hearing of the applications was delayed by the need to dispose of applications for mining leases made by Quarry Park and related companies that overlapped with the prospecting licence applications. Ultimately the mining lease applications were determined against Quarry Park in the High Court by the decision in Forrest & Forrest v Wilson to which I have referred earlier.
The prospecting licence applications and objections were heard in 2019 and the warden delivered his reasons for refusing to grant the prospecting licences on 11 September 2019.[44]
[44] Quarry Park Pty Ltd v Forrest & Forrest Pty Ltd [2019] WAMW 14.
On 25 September 2019, Quarry Park appealed to the Minister against the refusal to grant the prospecting licences.
On 22 October 2019 the applicant filed its application for judicial review. The Minister has suspended consideration of the appeals pending the outcome of these proceedings.

The warden's decision

Before the warden, Quarry Park argued that it had complied with the marking out requirements even though the trenches were not cut from the post. The warden rejected Quarry Park's argument that there was sufficient compliance with the marking out requirements if the trenches were cut with sufficient accuracy that an observer could determine where the boundaries of the tenement lay.[45]
[45] Quarry Park v Forrest & Forrest [29].
The warden addressed the consequences of non-compliance and referred to the principles stated in Project Blue Sky Inc v Australian Broadcasting Authority.[46] The warden referred to his earlier decision in Anglogold Ashanti Australia Ltd v Monument Exploration Pty Ltd,[47] in which he had held that marking out is not a jurisdictional fact and adopted his reasoning in that case without repeating it. That reasoning may be summarised as follows:
[46] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [91].
[47] Anglogold Ashanti Australia Ltd v Monument Exploration Pty Ltd [2019] WAMW 13 [89] - [189].
(a)Care must be taken not to apply the remarks of the majority in Forrest & Forrest v Wilson indiscriminately. The warden observed:[48]
[48] Anglogold Ashanti [163] - [165].
(i)Forrest & Forrest v Wilson was concerned with an application for a mining lease and not marking out and while the regimes for applications for mining leases and prospecting licences have some similarities there are obvious differences.
(ii)The regime with respect to applications for mining leases is far more sophisticated than that applicable to prospecting licences and the clarity provided by the provisions governing mining leases - ss 74(1)(a)(ii) (sic - s 74(1)(ca)(ii)), 74A(1) and 75(4a) was not replicated in the provisions applicable to the marking out of land the subject of a prospecting licence application.
(iii)'[T]he observations of the majority that where a statutory regime empowers the grant of exclusive rights to exploit the resources of the State, the regime will, subject to provision to the contrary, be understood as mandating compliance with the requirements of the regime essential to the making of a valid grant, does not inevitably mean every requirement is a jurisdictional fact. The failure to comply with a requirement may well prove fatal even though it is not a pre-condition to jurisdiction.'
(b)Although at 'first blush' s 105 has 'the appearance of a jurisdictional fact' the warden identified five reasons for concluding it was not:[49]
(i)First, while the question as to the timing of marking out (that is whether marking out occurred before the lodgement of the application) is clearly preliminary to the exercise of the power, whether marking out has occurred in the prescribed manner is a matter that necessarily arises in the consideration of the exercise of the power. In this respect the warden referred to s 42(2) and noted that, in the absence of any objection the mining registrar may grant a prospecting licence 'if satisfied' that the applicant has complied in all respects with the provisions of the Act. His Honour concluded that the warden determining an application under s 42(3) was also under the same obligation to consider whether the applicant had complied in all respects with the provisions of the Act. Citing Tasmanian Conservation Trust Inc v Minister for Resources,[50] the warden reasoned that if the marking out was a jurisdictional fact it might result in proceedings in a judicial forum that canvass the very question for which the Act established an administrative process. Further, the warden reasoned that the procedure for determining competing applications under s 105A involved the lodging of an objection to an application. This procedure was consistent with the view that the legislature intended not only that the mining registrar or warden should determine whether an applicant has marked out but, in the case of competing applications, who was the first to do so.[51]
(ii)Second, marking out in the prescribed manner inherently involves some evaluation thereby supporting the view it may not be an objective fact.[52] In contrast, his Honour observed that in Forrest & Forrest v Wilson a mining lease was either accompanied by a mineralisation report or it was not, a fact which is objective and easily identifiable, whereas marking out involves an evaluative component. In this respect his Honour referred to reg 59(1) and the requirement that posts be fixed 'at or as close as practicable to each corner or angle of the land concerned' and whether the trenches or row of stones each extend 1 metre 'from each post in the general direction of the boundaries'. Additionally his Honour referred to the fact that a trench must itself be identifiable as such, involving a 'substantial breaking of the ground having both sufficient width and depth to constitute a 'ditch'. In other words it must have the appearance, to the ordinary observer, of a trench within the ordinary meaning of that word and be a clearly identifiable trench'.[53]
(iii)Third, the warden reasoned that unless a mining registrar or warden had jurisdiction to determine whether an applicant had marked out there was no basis upon which the issue could be determined. The warden expressed the view that treating marking out as a jurisdictional fact would leave unanswered how the relevant facts would be determined. The warden reinforced this reasoning by pointing out that the prescribed application form (Form 21) only requires an applicant to state when marking out has been completed but does not require any material to be provided from which it can be established objectively that marking out has occurred in the prescribed manner. Thus in the absence of an objection, where evidence of a failure to mark out in the prescribed manner is provided, or a request for further information or evidence is made, the mining registrar or warden only have recourse to the representation in the Form 21 that marking out has been completed.
(iv)Fourth, the finding that the marking our requirements are jurisdictional facts would lead to inefficiency. It would lead to the invocation of this court's supervisory jurisdiction and necessitate this court having to investigate the jurisdictional fact, possibly on the basis of different evidence. It would also give rise to delays arising from this court revisiting the question.
(v)Fifth, the observations of the members of the High Court in Hunter Resources and the observations of the members of the Full Court in Crocker Consolidated Pty Ltd v Wille, provide support for the view that marking out was not a jurisdictional fact. Although, both cases had been decided before the repeal of s 40(4) of the Act, the repeal of that provision does not negate the force of the reasoning in those cases.
[49] Anglogold Ashanti [166] - [186].
[50] Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516.
[51] Citing R v Commissioner of Patents; Ex parte Weiss [1939] HCA 7; (1939) 61 CLR 240, 261 (Evatt J).
[52] Citing Thredgold vAustralian Community Pharmacy Authority (1999) 93 FCR 465.
[53] Quoting Anglogold Ashanti Australia Ltd v White Cliff Nickel Ltd [2010] WAMW 9 [16].

Applicable legal principles

In Woolworths Ltd v Pallas Newco Pty Ltd, Spigelman CJ observed: [54]
The determination of whether or not a fact is jurisdictional in the requisite sense can give rise to considerable difficulty and is a matter upon which reasonable minds can differ. There is no bright line between jurisdictional error and error in the exercise of a jurisdiction. (See, for example, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141 [163], per Hayne J). Nevertheless, the Court, being called upon to do so, must determine whether the repository of a statutory power has acted, or proposes to act, in a manner which transgresses the limits upon the exercise of the power that Parliament has conferred.
[54] Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 [9].
The seminal expression of the principle that guides whether compliance with a statutory condition is necessary to enliven the power of a decision-maker to make a decision is found in the following statement in the majority's judgment in Project Blue Sky Inc v Australian Broadcasting Authority:[55]
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
[55] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [91] (McHugh, Gummow, Kirby and Hayne JJ).
Even though there is no decisive rule, nor a ranking of relevant factors and, of course, every case turns on the statutory regime and the particular language used, the following propositions, which overlap in their expression and application, may be derived from the authorities:
(a)If the condition regulates the exercise of functions already conferred on the decision-maker, that is, if it concerns a fact to be adjudicated upon in the course of the inquiry, rather than imposing essential preliminaries to the exercise of the functions it is less likely to be a jurisdictional fact.[56]
(b)If the condition has a 'rule like quality' which can be easily identified and applied it is more likely to be jurisdictional. Conversely, if the condition involves a consideration of matters of policy in respect of which there is room for widely differing opinions it is less likely to be jurisdictional.[57]
(c)If determining whether there has been compliance with a condition involves issues of fact and degree it will often, but not always, be the case that these are matters for the decision maker to determine within jurisdiction.[58] In each case the overall statutory context is determinative as to whether or not the legislature intended the existence of the fact to both objectively exist and be essential notwithstanding the element of fact and degree and even judgment, that was required in the process of determining whether or not the relevant fact existed.[59]
(d)If a condition is expressed in 'indeterminate language' that might convey that obligations imposed are goals to be achieved as opposed to rules to be obeyed it is less likely to be jurisdictional.[60]
(e)Similarly, that a condition calls for the exercise of broad judgment on a matter of potentially significant disputation suggests that it is less likely that the legislature intended it to be an objective fact because of the capacity for reasonable minds to differ.[61]
(f)A condition containing a factual reference involving the mental state of the primary decision-maker - 'opinion', 'belief', 'satisfaction' - is less likely to condition the exercise of jurisdiction, other than that the existence of the mental state is a particular kind of jurisdictional fact.[62]
(g)If a factual matter plays a critical role in the decision-making process it is more likely to be construed as jurisdictional.[63]
(h)If the invalidity would result in public inconvenience it is unlikely that a condition will be regarded as jurisdictional.[64]
[56] Project Blue Sky[93]; Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 [44] (Spigelman CJ).
[57] Project Blue Sky [95].
[58] Woolworths Ltd v Pallas Newco Pty Ltd [56] - [60].
[59] Woolworths Ltd v Pallas Newco Pty Ltd [61].
[60] Project Blue Sky [96].
[61] Timbarra Protection Coalition Inc v Ross Mining NL [88] - [89].
[62] Timbarra Protection Coalition Inc v Ross Mining NL [42] and see e.g. R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611.
[63] Timbarra Protection Coalition Inc v Ross Mining NL [76].
[64] Project Blue Sky [97].
As is well-established statutory construction requires attention to text, context and purpose.[65] Context must be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise.[66] In Project Blue Sky the majority observed the process of construction must always begin by examining the context of the provision that is being construed.[67]
[65] Mohammadi v Bethune [2018] WASCA 98 [31] - [36] (Martin CJ, Mazza and Beech JJA).
[66] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
[67] Project Blue Sky [69] - [70].

The parties' submissions

In summary the applicant's submissions advanced the following propositions:
(a)On their plain reading ss 41(1)(a) and 105 require compliant marking out as a pre-condition to the making of an application for a prospecting licence. That each section directs attention to when an application is 'made' draws the intended connection and the use of the word 'before' in s 105 is clear and emphatic.
(b)Marking out is 'an objectively ascertainable fact' and the requirements of marking out have a 'rule-like' quality.
(c)An application is a pre-condition to the existence of the power to grant or refuse an exploration licence (Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd)[68] and by analogy an application is a pre-condition to the existence of the power to grant or refuse a prospecting licence. References in s 42 to an application and applicant are to be construed as references to a valid application (an application preceded by marking out) and to an applicant who has made a valid application.
[68] Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134.
(d)The reference in s 42(2)(a) to the mining registrar being satisfied that an applicant has complied 'in all respects' with the provisions of the Act does not remove the jurisdictional pre-condition and the phrase 'in all respects' refers to the many requirements of the Act other than marking out. As is made clear by the language of s 41(1)(a) and s 105, marking out stands on a different footing. As a matter of general administrative decision-making a mining registrar or warden would need to request some material to be put forward by an applicant to demonstrate that the marking out requirements have been complied with and failing the provision of such material the application simply will not progress.
(e)The force of the statutory language creating a jurisdictional pre‑requisite overcomes the general consideration, identified by the warden, that is, the warden would be determining 'in advance' that which he is to hear and determine. Like any decision-maker the warden has jurisdiction to determine the jurisdiction conferred by s 40.
(f)The reasoning of the majority in Forrest & Forrest v Wilson described in the applicant's submissions as 'the constitutional imperative' means that the starting point is that the mode of exercising a statutory power prescribed in the Act must be observed and there is no provision to the contrary effect in the Act.
(g)Compliant marking out of private land protects the interests of private land owners.
(h)Compliance with the marking out requirements lies entirely in the hands of the putative applicant. An applicant who fails to mark out in the prescribed manner and shape is the author of its own misfortune.
(i)Various provisions of the pt V of the Act, ss 105A, 106 and 107 indicate the 'primacy of marking out'.
(j)Holding that compliant marking out is an essential pre-condition to an application promotes efficiency and reduces the inconvenience and expense that may be suffered by third parties.
(k)The Minister's powers on appeal are not unlimited.
(l)Section 116(2) is of no relevance because:
(i)a purported act without power or a departure by a mining registrar or warden from a jurisdictional limitation is not an informality or irregularity and 'grant' in s 116(2) means a valid grant within jurisdiction and not a purported grant made without jurisdiction;
(ii)marking out is 'in the application' and does not form part of the subsequent proceedings before the mining registrar or warden;
(iii)the provision has no operation or effect prior to any grant or purported grant, such that at this stage of the matter, its effect does not affect the analysis.
(m)The earlier decisions of Hunter Resources and Crocker Consolidated are not determinative of the issue.
In their written submissions, counsel for the amicus accepted the applicant's construction of the statutory language was 'arguably open' but that the warden's approach to the issue set out in Anglogold had considerable force.
The amicus made two broad submissions:
(a)the language of ss 40(1), 4(1)(a), 42(3), and 105(1) does not connote that marking out in compliance with s 105(1) of the Act and regs 11 and 59 of the Regulations is a jurisdictional fact enlivening a warden's jurisdiction; and
(b)the objects of div 1 of pt IV of the Act would not be advanced by holding an exercise of a warden's decision making power under s 40(1) to be invalid as a consequence of technical non-compliance with the matters in reg 59.
The amicus advanced five contentions in support of his submission in respect of the statutory language that may be summarised as follows:
(a)The applicant's emphasis on the temporal relation between marking out and an application for a prospecting licence on s 41(a) is correct but it does not compel the conclusion that compliance with the marking out requirements is a jurisdictional fact. Compliance with the marking out is a critical factor for a mining registrar or warden to determine in the exercise of their respective jurisdictions. A better analogy between the facts of Forrest & Forrest v Wilson and the present case would be if the applicant had failed to mark out the land at all. In the present case, Quarry Park had marked out the land in a 'non-compliant but intelligible manner' before the application was made so there was no real doubt regarding the land the subject of the application.
(b)Marking out involves a qualitative evaluation. This is to be contrasted with the condition considered in Forrest & Forrest v Wilson, the requirement that a mineralisation report accompany an application for a mining lease, which involved a determination of the nature of the temporal relationship between the application and the provision of the mineralisation report. The amicus pointed to the various provisions within the reg 59, compliance with which requires evaluative determinations to be made.
(c)The warden was correct to regard the timing of marking out and compliance with the prescribed manner as separate questions. That the issue of compliance is an issue to be determined within jurisdiction is made plain by the requirement in s 42(2)(a) that a mining registrar be satisfied that an applicant has 'in all respects' complied with the provisions of the Act. There is nothing in the language of s 41(1)(a) that elevates marking out above any other obligation and it is not open to read s 42(2)(a) as excluding marking out. Further, the postulated outcome of the applicant's construction in the event that an applicant is unable to provide evidence of compliant marking out (the application simply will not progress) is an unreasonable outcome. In contrast if the warden's construction is adopted, an applicant who is unable to establish compliant marking out, will have its application refused - an administratively reasonable outcome.
(d)The decisions in Hunter Resources and Crocker Consolidated provide support for the warden's construction.
(e)The applicant's construction does not account for the possible distinction between the ambit of the function of the warden and Minister on appeal. The consequence of the applicant's construction is that any 'technically non-compliant' application could never be heard and refused by a mining registrar or warden and thus never proceed to the stage of an appeal to the Minister. It is not apparent from the language and structure of the Act why the Minister would not be permitted to consider and potentially uphold an appeal against a refusal by the mining registrar or warden despite some other form of non-compliance but not non-compliance with s 105.

The amicus advanced two contentions in respect of his submission concerning the objects of the Act that may be summarised as follows:
(a)The administration of the Act for public officials is most likely best served if compliance with the marking out requirements is construed as being within the jurisdiction of the mining registrar or warden. The applicant's construction places the burden on the public officials rather than on the applicant. On the applicant's construction if an applicant is unable to satisfy the mining registrar or warden that they have complied with the marking out requirement the application will languish rather than being determined by a refusal of the grant of the application.
(b)It is in the interests of stakeholders and third parties for compliance with marking out to be determined within jurisdiction because otherwise in the event of a dispute between a warden and an objector about compliance with the marking out requirements the primary relief would be by way of judicial review. The remarks of the majority in Forrest & Forrest v Wilson about the inconvenience to third parties that might be caused by 'half-baked proposals' did not apply to a failure to mark out in the prescribed manner. The mineralisation report was a substantial factor in the decision-making process. Substantial compliance with the marking out requirements (such as occurred in the present case) enables applications to be understood by third parties who had an interest.

Consideration

In his opening oral submissions senior counsel for the applicant, Mr Gilmour QC, submitted that this was a case in which it could be said that there is a bright line separating marking out as a jurisdictional fact from other statutory conditions.[69] With respect the issue is more finely balanced. The observation of Allanson J in a judgment delivered in one of the early rounds of the litigation between the applicant and Quarry Park is more apt - that is, '… as in so many questions of construction, the answer involves making a choice between competing, feasible interpretations'.[70]
[69] ts 7.
[70] Forrest & Forrest Pty Ltd v Wilson [2015] WASC 181.
I am indebted to the warden for the comprehensive analysis of the legal principles set out in the Anglogold Ashanti decision. I have, however, come to a different conclusion to that reached by his Honour. I set out below my reasons for concluding that marking out the land the subject of a prospecting licence in the prescribed manner and in the prescribed shape, conditions the jurisdiction of a mining registrar or warden, as the case may be, to grant a prospecting licence. Although there are several strands to my reasoning (broadly summarised by the sub-headings used in the following section of these reasons) that combine to lead me to conclude that marking out is jurisdictional, the imperative nature of the statutory language and the majority's judgment in Forrest & Forrest v Wilson and their Honour's observations about the nature of the statutory regime are matters to which I attach particular weight.

The statutory language

The marking out requirement is expressed in imperative terms in s 105 of the Act - 'Before an application for a mining tenement … is made, the land … shall be marked out in the prescribed manner and in the prescribed shape'.
As Mason CJ and Gaudron J observed in Hunter Resources,[71] there is nothing in the Act that suggests that anything less than exact compliance with this command is a sufficient satisfaction of the statutory obligation.
[71] Hunter Resources v Melville (241).
The description of the majority in Forrest & Forrest v Wilson of the 'tenor of s 74(1)(ca)(ii)' as 'both precise and prescriptive, conveying an intention not to countenance any degree of non-compliance with the requirement'[72] is equally apt to apply to statutory command in s 105.
[72] Forrest & Forrest v Wilson [67].
The precise and prescriptive language suggests not only that marking out is a preliminary step in the application process but that it is an essential preliminary step, that is, a pre-condition to the making of a valid application.
This conclusion is reinforced by the terms used in s 40(1) to refer to the power to grant a prospecting licence in accordance with s 42. The power is expressed to be '[s]ubject to this Act', that is, subject to compliance with the statutory imperative to have marked out the tenement in accordance with s 105. If an applicant had not marked out the land, the subject of an application for a prospecting licence in the prescribed manner and shape, before making the application it would not be an application made 'subject to the Act'.[73]
[73] Ex parte Trythall v Aplo Pty Ltd (Unreported, WASC Full Court, Library No 8982A-C, 7 August 1991) (Ipp J, with whom Pidgeon J agreed).
I turn next to the significance attached by the warden and the amicus to the requirement in s 42(2) that a mining registrar be satisfied that 'the applicant has complied in all respects with the provisions of this Act', (language clearly capable of embracing the requirement to mark out in accordance with s 105), and to the related point developed by the amicus that there was nothing in s 41(1) that elevated the importance of marking out above any other obligation provided for by the Act. As it was put in the amicus's submissions, s 42(2)(a) should not be read as if it provided that a mining registrar must be satisfied that, 'the applicant has complied in all respects with the provisions of this Act other than marking out in accordance with s 105(1)'.
It is pertinent to point out that s 75(3) provides that the mining registrar shall recommend the grant of a mining lease 'if satisfied that the applicant has complied in all respects with the provisions of the Act' and shall recommend refusal if not so satisfied and that the inclusion of this provision did not prevent the majority in Forrest & Forrest v Wilson from reaching the conclusion that the several requirements: that, an application be accompanied by a mineralisation report; that an application be accompanied by the prescribed rent; and, that an application be accompanied by the prescribed fee, were all jurisdictional in nature.
Section 42 in its present form was introduced into the Act by the Mining Amendment Act 1994 (WA). That Act also repealed s 40(4) of the Act. I accept the imposition of the obligation on the mining registrar (and by implication on the warden) to be satisfied that 'the applicant has complied in all respects with the provisions of this Act' is difficult to reconcile with the proposition that compliant marking out conditions the existence of the jurisdiction to grant prospecting licences.
While the process of statutory construction strives for a harmonious reconciliation of provisions that may to varying degrees appear to conflict, perfect harmony can often not be achieved. As Kirby J observed, in considering the construction of the Trade Practices Act 1974 (Cth) in I & L Securities v HTW Valuers,[74] in a large and complex piece of legislation it is erroneous to assume perfect symmetry and consistency among all of its provisions and, in particular, it is a mistake to draw inferences from later particular, limited amendments to the Act for the meaning of the more general provisions of the Act, untouched by such amendments. In my opinion, in the context of the statutory regime established by the Act, the clear command in s 105 that an applicant shall mark out the land the subject of an application before the application outweighs the textual support provided by s 42(2)(a) for the view that marking out is not a jurisdictional fact. That the inclusion of the same language in s 75(3) did not prevent the majority in Forrest & Forrest v Wilson from concluding that the matters specified in s 74(1)(b), (c) of (ca)(ii) were jurisdictional provides support for this view.
[74] I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109, [160] - [161] (Kirby J)
Dealing with the point made by the amicus in respect of s 41(1) - having regard to the imperative language used in s 105 to express the obligation to mark out, that s 41(1) is silent as to marking out, is not a matter to which significant weight should be attached.

The nature of the statutory regime

It is clear from the passage from the majority judgment in Forrest & Forrest v Wilson cited at [20] above, that the nature of the statutory regime was a matter of context that was of primary importance in the construction exercise undertaken in that case. It was not a matter of secondary or merely confirmatory significance.
Although ss 105 and 105A appear in pt V of the Act and div 1 of pt IV governs applications for prospecting licences and div 3 of pt IV governs applications for mining leases they all form part of the same statutory regime. In my view, there is no justification for distinguishing between the jurisdictional significance of the requirement that an application for a mining lease be accompanied by a mineralisation report as required by s 74(ca)(ii) and the requirement to mark out land that is to be the subject of an application for a prospecting licence. Parenthetically, I note that in Nettle J's dissenting judgment in Forrest & Forrest v Wilson his Honour described a failure to comply strictly with the requirement imposed by s 74(1)(ca)(ii) as, 'in essential respects' similar to non-compliance with marking out requirements.[75]
[75] Forrest & Forrest v Wilson [114].
In the warden's reasons in Anglogold Ashanti his Honour noted that not every requirement imposed by legislation conferring power on the executive government of a State to grant exclusive rights to exploit the resources of the State constitutes a jurisdictional fact. While this may be so, the majority in Forrest & Forrest v Wilson emphasised:
[W]here a statutory regime confers power on the executive government of a State to grant exclusive rights to exploit the resources of the State, the regime will, subject to provision to the contrary, be understood as mandating compliance with the requirements of the regime as essential to the making of a valid grant. (emphasis supplied)
This emphasis was reinforced by the majority's rejection of the proposition that the requirements that an application for a mining lease be accompanied by the prescribed rent and prescribed fee were not jurisdictional.
These observations suggest the starting position is not one of neutrality but rather that compliance with the requirements of the regime is to be understood as essential to the making of a valid grant unless there is express provision to the contrary. Given the language used it is unlikely the legislature intended that there should be a more relaxed approach to compliance with the requirements of marking out.
It is necessary to address the contrast drawn by the warden between the provisions governing applications for mining leases and those governing marking out and applications for prospecting licences. It may be accepted also that the provisions governing applications for mining leases are more detailed (more sophisticated) than those governing applications for prospecting licences. That said, not only are all the provisions part of the same statutory regime but there are similarities between the provisions of the div 1 and div 3 of pt IV: both the Minister's power to grant a mining lease under s 71 and the power of the mining registrar and warden to grant a prospecting licence are expressed to be 'subject to this Act'; and, both div 1 and div 3 provide for a 'two track' system depending on whether a notice of objection has been lodged. These similarities suggest that the same approach should be adopted to compliance with the requirements of the Act irrespective of whether the application is for a prospecting licence or a mining lease.
Further marking out is a step in a series of sequential steps in a process leading to the possibility of a grant (relevantly) of a prospecting licence in the same way that lodging an application for a mining lease accompanied by a mineralisation report was described by the majority in Forrest & Forrest v Wilson as a step in a sequential process. And, marking out serves an informative purpose as does the requirement that the mineralisation report be made available for public inspection under s 74(5), (that being a matter to which the majority attached importance in Forrest & Forrest v Wilson).[76]
[76] Forrest & Forrest v Wilson [86] - [88].
There are, of course, differences between the provisions of div 1 and div 3 of pt V but they are not sufficient to justify there being a different approach to compliance.
One such difference is found in s 76(6)(b) that allows the Minister, subject to certain exceptions, to grant or refuse a mining lease notwithstanding an applicant's non-compliance in all respects with the provisions of the Act. In my view, however, the absence of an equivalent provision in div 1 of pt IV reinforces the requirement that the statutory conditions regulating the making of a grant of a prospecting licence, including the preliminary step of marking out, must be observed.
Other differences are that a prospecting licence lies in the grant of a mining registrar or warden whereas it is the Minister who has the power to grant a mining lease. Further, there is no equivalent to s 74A in div 1. Neither of these differences justify a more relaxed approach to compliance with the statutory conditions regulating prospecting licences.
Finally, when compared to a mining lease a prospecting licence may be characterised as the 'junior tenement' but, again, this does not justify a more relaxed approach to compliance with the statutory conditions especially when regard is had to the right of priority conferred on the holder of a prospecting licence to apply for a mining lease by s 49 of the Act.

Marking out serves important purposes

Marking out plays an important role in the legislative scheme. It is not merely a formality. Marking out serves these purposes:
(a)It identifies the land that is the subject of the application by delineating the boundaries of the proposed tenement in physical form. By so doing it establishes the relation between the tenement boundaries and features of the landscape, for example, the features described in s 20(5) or s 29(2) of the Act[77] - something that cannot be achieved by lines on a map. In this respect the observations of Rowland J in the Full Court in Ex parte Melville are instructive - his Honour observed:[78]
In my experience, and I believe it would be the experience of anybody who has had anything to do with this jurisdiction, the map which normally accompanies these applications would often bear but a superficial resemblance to the configuration of the marking out on the ground.
(b)It provides notice of the application to interested persons.
(c)In the case of competing applications, marking out constitutes the 'initial requirement' by reference to which a right of priority is established for the purposes of s 105A(1).
[77] For example, whether the land is under crop, is used or situated within 100m of a yard, stockyard, garden cultivated field, etc
[78] Ex parte Melville v Hunter Resources Ltd (Unreported, WASC Full Court, Library No 6645-C, 24 March 1987).
As the identification of the purposes served by marking out demonstrate it plays a critical role in the legislative scheme. This is an indication that the legislature intended that marking out should be regarded as an essential preliminary to the jurisdiction to grant a prospecting licence.

Marking out does not involve significant evaluative judgment

The warden considered marking out in the prescribed manner inherently involved some evaluation. His Honour considered this supported the view that marking out could not be regarded as an objective fact, and thus, not a jurisdictional fact.
The amicus made a submission to the same effect and argued that determining whether a tenement had been marked out in accordance with reg 59 necessitated an evaluative approach because of the terms in which the marking out requirements are expressed.[79] The amicus accepted that it is not permissible to interpret the statute by reference to the regulations but submitted that because the entire content of s 105 is dependent upon the regulations this 'must mean that the court's construction of the section can countenance whatever regulations might validly be made' and it was possible that the regulations might involve matters of evaluation or judgment.[80] The applicant argued that, although the amicus disclaimed reliance on the regulations, the amicus's submissions, in effect, invited the court to use the regulations for the purposes of construing the Act.
[79] For example, whether a post was fixed 'at or as close as practicable to each comer or angle of the land concerned' (reg 59(1)(a)(i)); whether the two trenches or rows of stones were 'clearly identifiable' (reg 59(1)(b)(i) and (ii)); whether the trenches or rows of stones were cut 'from each post' (reg 59(1)(b)); and whether these trenches or rows of stones were 'in the general direction of the boundary lines' (reg 59(1)(b).
[80] ts 36 - 40.
It is difficult to gainsay the proposition that s 105 has a rule like quality - the language speaks for itself, '[b]efore an application for a mining tenement … is made, the land … shall be marked out in the prescribed manner and in the prescribed shape…'. The condition is not expressed in 'indeterminate language'.
Equally, however, it is clear from the Act itself that the application of the rule is likely to involve some issues of fact and degree. That this is so is apparent from the provisions of the Act that contemplate that marking out will be achieved using rudimentary materials - pegs, marks, posts and cairns of stones and poles (see s 18(a) and s 104(1)) - and that marking out will often occur in very rugged terrain. It is evident that this combination of circumstances is likely to create practical difficulties that will in turn give rise to factual disputes about the degree to which applicants have complied with the marking out requirements. In that context, however, the issues that mining registrars and wardens are required to determine are whether marking out in a particular case conforms to what has been prescribed by the regulations. The very nature of the subject matter means the regulations are likely to be concerned with physical standards expressed by reference to specified distances and dimensions. In other words mining registrars and wardens are not required to form value judgments on broadly expressed subjective criteria. The confined nature of the issues of fact and degree to be resolved for the purposes of determining whether the marking out requirements have been met is such that I am not persuaded that marking out should not be characterised as a jurisdictional fact.

No valid distinction between temporal and qualitative aspects of marking out requirement

In the warden's reasons in Anglogold and in the amicus's submissions a distinction was drawn between the time at which marking out has to be undertaken - before the lodgement of the application - said to be 'clearly preliminary to the exercise of the power to grant a prospecting licence' and whether marking out is in the prescribed manner - a matter that necessarily arises in the consideration of the exercise of the power.[81]
[81] Anglogold [168]; Amicus's written submissions [25], [37] and [56].
With respect, in my view, to draw such a distinction is to reintroduce the concept of 'substantial compliance' rejected in Hunter Resources. It assumes that some attempt at marking out will be sufficient to comply with the requirement that marking out be undertaken before an application is made but leaves open the question as to what may be sufficient - would it be sufficient for an applicant to place pegs at the corners of the land marked out but not comply with any other requirement. Moreover, where there are competing applications, there is no reason why an applicant who has not complied with the marking out requirements strictly and may thus have achieved a timing advantage over another applicant should be allowed to have its application determined and, as a consequence, acquire potential appeal rights.

While care must be taken in reasoning from decisions made in respect of other statutory regimes some support for the view that 'marking out' means marking out in the prescribed manner and in the prescribed shape for all purposes is supported by the reasoning in Bromley v Muswellbrook Coal Co Pty,[82] In Bromley the High Court was concerned with the construction of the Mining Act 1906 (NSW) (1906 NSW Act) in so far as its provisions governed an application for a mining lease over private land. The application was brought pursuant to s 70B of the 1906 NSW Act which provided:
Any person who desires to obtain a lease of private lands for the purpose of mining for minerals not reserved to the Crown and who has, either personally or by his agent, in the prescribed manner, marked out the boundaries of the land desired to be leased, may, in the prescribed manner, apply to the Minister for a lease thereof. The provisions of section fifty-seven of this Act relating to applications under that section shall apply, mutatis mutandis, to applications under this section.
[82] Bromley v Muswellbrook Coal Co Pty [1973] HCA 56; (1973) 129 CLR 342.
Section 48A of the 1906 NSW Act provided that before marking out an applicant was required to obtain an authority to enter private land from the warden. The essential question for the High Court was whether the applicant's failure to obtain a permit under s 48A was fatal to the claim that it had marked out the land in the prescribed manner. Mason J, with whom Barwick CJ and Stephen J agreed, reasoned that the application could not be granted because the failure to obtain a permit meant the land had not been 'marked out' in a way that corresponded with the meaning of that phrase in s 70B of the 1906 Act. Menzies J reached the same conclusion.

Attainment of the objects of the Act

In my view the objects of the Act are advanced by holding that marking out in the prescribed manner and in the prescribed shape is an essential precondition to the warden's jurisdiction to determine an application for a prospecting licence for the following reasons.
(a)It promotes certainty. It eliminates any possibility of a reward for non-compliance that might otherwise flow from a successful appeal to the Minister under s 56 of the Act from a warden's refusal to grant a prospecting licence on the ground of non-compliance with the marking out requirements.
(b)It imposes no additional burden on applicants because they must comply strictly with the marking requirements by reason of the decision in Hunter Resources. An applicant who does not comply is the author of its own misfortune.
(c)Whether there has been compliance with the marking out requirements is capable of being determined before third parties who may have an interest in the application are put to the expense of becoming involved as objectors. Of course, the procedure to be followed in each case will be a matter for the warden. Determining the issue of compliance with the marking out requirements as a precondition to jurisdiction avoids the delay associated with a contested hearing of objections and possible further delay in the event of an appeal to the Minister.
I accept that holding that compliant marking out conditions jurisdiction may well lead to the more frequent invocation of the supervisory jurisdiction of this court in the event of unsuccessful applications as opposed to the exercise of the right of appeal to the Minister. In my view this is not a major factor in the construction exercise. Further, given the nature of the issues typically raised by marking out, it is unlikely that this court would be called upon to consider evidentiary material that differed from that placed before the warden.
As noted earlier the amicus submitted that construing marking out in compliance with the Act as conditioning jurisdiction would create practical difficulties for mining registrars. The difficulty identified by the amicus was that if an applicant called on by a mining registrar to establish compliance with the marking out requirements was unable to find that compliant marking out had been undertaken, the application would simply not progress whereas if marking out was a matter to be determined within jurisdiction, the application would be refused in accordance with s 42(2)(b).
In my view this difficulty is more apparent than real. An administrative body has jurisdiction to determine its own jurisdiction. As Brennan J, (as his Honour then was), sitting as President of the Administrative Appeals Tribunal, said in Re Adams and the Tax Agents Board:[83]
An administrative body with limited authority is bound, of course, to observe [the limits on its authority]. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect.
[83] Re Adams and the Tax Agents Board (1976) 12 ALR 239, 242
A determination of a mining registrar or warden that an applicant has not satisfied the precondition to jurisdiction by marking out may produce no legal effect (as described by Brennan J in the passage quoted above) but in a practical sense it will dispose of the application unless, of course, this court's supervisory jurisdiction is invoked.

Restriction of the Minister's discretion on appeal not determinative

The amicus's submission, that construing the requirement to mark out as a precondition to jurisdiction did not account for the possible distinction between the ambit of the function of the warden under div 1 of the Act on the one hand and the Minister on any appeal under s 56 on the other, finds some support in the observations of Toohey J in Hunter Resources Toohey J to the effect that:[84]
The Minister's powers on appeal are not expressed to be qualified, either by reference to "subject to this Act" or by other language that might suggest a bar to allowing an appeal where the marking out requirements have not been met. This is not to suggest that the Minister may act in an arbitrary manner; it is, however, to contrast the limitations expressly imposed on the warden with their absence where the Minister is concerned. The dichotomy between warden and Minister is familiar enough in mining legislation.
[84] Hunter Resources Ltd v Melville (258) (Toohey J).
The proposition advanced by the amicus is that the breadth of the discretion conferred on the Minister when dealing with an appeal, provides contextual support for the view that marking out does not condition the warden's power to determine an application for a prospecting licence.
That proposition also finds some support in the judgment of Steytler P in St Barbara Ltd v Minister for Energy, Resources, Industry & Enterprise. In St Barbara the warden had 'dismissed' an application for a miscellaneous licence on the ground that the application involved an abuse of process. Steytler P rejected an argument that the warden had an implied statutory power to control proceedings so as to prevent collateral attacks or other abuses by dismissing them in such a way as to preclude an appeal to the Minister. In the course of his judgment Steytler P observed:[85]
…[T]here is, as I have said, nothing in the terms of the Mining Act, or the Interpretation Act, that should lead to the conclusion that the mining warden has a power to dismiss proceedings, and to deny any right of appeal, simply because there has, in his opinion, been an abuse of process. I should point out, in this respect, that there is a good deal of authority supporting the proposition that the Minister's powers are wider than those of the warden, in the sense that he might grant an application for a prospecting licence (or a miscellaneous licence) where a warden could not: Hunter Resources Ltd v Melville (1988) 164 CLR 234, 258 (Toohey J); Trythall (384 - 385). It would be an odd construction of the Act which had the result that, merely because the warden had declined to grant an application on the basis of some preliminary point (whatever its nature), no appeal lies to the Minister.
Nor can s 50(1) of the Interpretation Act operate in the way contended for on behalf of the appellant. The only power given to the warden is, as I have said, to grant or refuse an application and, similarly, the only right given to an objector is one to object to the grant of an application. There is no justification for implying a power in the warden to dismiss the application, whether for abuse or otherwise, in such a way as to render his or her decision unappealable. (emphasis supplied)
[85] St Barbara [34] - [35].
The observations made by Steytler P must be understood in the context of the question before the court which was: what are the limits on the statutory authority of the warden to determine an application made under and in accordance with the Act. That is not the question raised by the present application which is: does the warden (or the Minister) have statutory authority to determine an application not made under and in accordance with the Act.
Put another way, St Barbara concerned the powers of a warden to deal with an application which it was accepted fell within the warden's jurisdiction to consider. This case concerns the anterior question of whether the application was within the warden's jurisdiction.
The proposition that the Minister's discretion is so broad as to enable the Minister to disregard the requirement to mark out is inconsistent with the reasoning in Forrest & Forrest v Wilson and contrary to the decision of Nicholas v Western Australia to which I have referred earlier. In particular, it is inconsistent with the view that the public interest is not well served by allowing non-compliance with a legislative regime to be overlooked or excused by the officers of the executive government charged with its administration. As the majority in Forrest v Forrest v Wilson said, to permit such a state of affairs might imperil the honest and efficient enforcement of the statutory regime, by allowing scope for dealings between miners and officers of the executive government in relation to the relaxation of the requirements of the legislation. Further to permit such a state of affairs would be contrary to the imperative stated by Jackson CJ in Nicholas v Western Australia that there is 'no unfettered right in the Crown, or the Ministers of the Crown' to dispose of the mineral wealth of the State other than in accordance with the statutory regime. Indeed the potential breadth of the grounds upon which the Minister could grant a prospecting licence on appeal is a good reason for concluding that such a discretion must be fettered by restrictions which are expressed to be preliminary to the making of an application.
Further, true it is that the Ministers' powers on appeal are not expressed to be 'subject to this Act' but the power of the mining registrar or warden to determine an application is expressed to be 'subject to this Act'. There is no power to determine an application that is not brought in accordance with the Act. It follows that the right of appeal conferred by s 56(1) is a right limited to an appeal in respect of a refusal to grant applications brought and determined in accordance with the Act. On the construction of the Act I favour this means applications preceded by compliant marking out. This construction is supported by the language of s 56(2) of the Act which sets out the powers of the Minister on appeal, where the Minister can dismiss the appeal or grant the 'application'. In my view the use of the phrase 'grant the application' as opposed to 'grant a prospecting licence' indicates that the Minister's powers on appeal are indeed conditioned by the existence of an 'application' for the purposes of the Act.

Issue not determined by authorities

As noted at [26] - [27] in Crocker Consolidated the Full Court of this court rejected the proposition that marking out in accordance with s 105 of the Act was an essential pre-condition of the grant of a prospecting licence. Section 40(4) was a significant feature of the statutory regime as it then was and the decision in Crocker Consolidated may be distinguished on the basis that the Act no longer contains s 40(4). In addition to that point of distinction the reasoning in Crocker Consolidated must be reassessed in the light of the High Court's reasoning in the decision in Forrest & Forrest v Wilson.
In Hunter Resources all the members of the court were of the view that marking out did not condition the power to grant a prospecting licence. In their joint judgment (in dissent) Mason CJ and Gaudron J stated:[86]
True it is that s 40(1), which authorizes the warden to grant prospecting licences, commences with the words 'Subject to this Act'. It is perhaps possible that the draftsman intended by these words to condition the power to grant a licence on compliance by the applicant with the requirements as to marking out. However, if the power to grant were so conditioned, it would mean, subject to the operation of s 116(2) to which we will refer shortly, that the licence would be vulnerable to subsequent attack with consequential uncertainty as to the validity of titles to mining tenements. And the words in question are scarcely apt to require the warden to satisfy himself that marking out in the prescribed manner and shape has taken place and to condition the power to grant a licence on his being so satisfied.
[86] Hunter Resources v Melville (242 - 243).
Their Honours went on to express the view that a warden has power to grant a licence to an applicant who has not complied in all respects with the marking out requirements when there is no competing or conflicting claim.[87] Wilson J gave short reasons of his own but generally (and relevantly) agreed with Dawson J, who expressed the view that the warden's jurisdiction to entertain the application for a prospecting licence was not conditioned upon the applicant's observance of the marking out requirements.[88] Toohey J stated that 'clearly' the warden had jurisdiction to deal with the application, whether or not there had been a failure to comply with a marking-out requirement.[89]
[87]Hunter Resources v Melville (244).
[88]Hunter Resources v Melville (251).
[89]Hunter Resources v Melville (256).
The version of the Act considered in in Hunter Resources included s 40(4) as referred to earlier. The provision was referred to by Mason CJ and Gaudron J in their joint judgment and also by Wilson J. The provision appears to have informed their Honours' view that the Act contemplated that different approaches should be taken to determining applications depending on whether or not they were contested. Section 40(4) was not, however, of decisive significance to the reasoning of any members of the Court and the repeal of s 40(4) is not alone a sufficient basis for distinguishing the decision in Hunter Resources.
I depart from the views expressed by the members of the court in in Hunter Resources on the issue of whether marking out conditions the jurisdiction of the warden because I consider they are inconsistent with the reasoning of the majority in the later decision of Forrest & Forrest v Wilson. In undertaking the Project Blue Sky analysis the majority in Forrest & Forrest v Wilson placed considerable emphasis on nature of the statutory regime and the importance of the observance of statutory conditions regulating the making of grants to exploit the mineral resources of the State. These are not matters that featured in the analysis in Hunter Resources. I acknowledge that the majority's reasoning in Forrest & Forrest v Wilson was in the context of an application for a mining lease and not a prospecting licence and it concerned specific aspects of the application process as distinct from marking out. Those factual differences do not, however, provide a principled basis for holding that a different approach should be taken to the requirement of marking out in the context of an application for a prospecting licence.

Conclusion

For the reasons stated I consider that the warden made a jurisdictional error and that the applicant is entitled to the relief sought by it.
I will hear the parties in relation to the orders to be made flowing from these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle
16 DECEMBER 2020