Forrest and Forrest Pty Ltd v O'SULLIVAN

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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

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Details
Case
[2020] WASC 468
Decision Date

CaseChat Overview and Summary

In Forrest and Forrest Pty Ltd v O'Sullivan, the primary dispute involves the interpretation and application of the Mining Act 1978 (WA) concerning the jurisdictional power of a warden to grant prospecting licences. The applicant, Forrest and Forrest Pty Ltd, challenged the decision of the warden who granted prospecting licences to Quarry Park, asserting that the warden's decision was flawed due to the lack of proper marking out of the tenements. This case revolves around the legal necessity of compliant marking out as a jurisdictional prerequisite to the warden's power to grant prospecting licences.

The court was tasked with determining whether the warden's decision was made in excess of jurisdiction due to the absence of proper marking out of the tenements as required by the Mining Act 1978 (WA). Another key issue was whether a valid application is a necessary precondition to the exercise of the warden's power to grant a prospecting licence, and if compliant marking out is an essential jurisdictional fact. Additionally, the court had to interpret the appeal rights of the parties under the Act, particularly whether the Minister has jurisdiction to hear an appeal when the warden has acted outside their jurisdiction.

The court held that the warden's decision to grant the prospecting licences to Quarry Park was indeed made in excess of jurisdiction, as the lack of proper marking out constituted a jurisdictional error. The court found that compliant marking out is a necessary precondition to a valid application for a prospecting licence, and therefore, an essential preliminary to the power to grant such a licence. Consequently, the warden's conclusion that compliant marking out does not condition the power to grant a prospecting licence was incorrect. Given that the warden had no jurisdiction to grant the prospecting licences, the Minister's jurisdiction to hear an appeal from the warden's decision was also not enlivened. Therefore, the warden's decision was quashed, and a declaration was made that the Minister is without jurisdiction to consider or determine any appeal from the warden's decision under section 56(1) of the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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.