3.Thesecond and fourth respondentspaytheappellant'scostsoftheappealtothisCourt.
On appeal from the Supreme Court of Western Australia
Representation
A J Myers QC with A J Papamatheos for the appellant (instructed by Mizen + Mizen)
Submitting appearances for the respondents
P D Quinlan SC, Solicitor-General for the State of Western Australia with T C Russell for the Attorney-General for the State of Western Australia, appearing as amicus curiae (instructed by State Solicitor's Office (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Forrest & Forrest Pty Ltd v Wilson
Mining – Application for mining lease – Statutory conditions – Proper construction of s 74(1)(ca)(ii) of Mining Act1978 (WA) – Where statutory regime conferred power on executive government of State to grant exclusive rights to exploit resources of State – Where s 74(1)(ca)(ii) provided application for mining lease "shall be accompanied by" mineralisation report – Effect of non‑compliance with s 74(1)(ca)(ii) – Whether non‑compliance with s 74(1)(ca)(ii) invalidated exercises of jurisdiction to progress application through to grant.
Words and phrases – "condition precedent", "indefeasibility", "informality", "irregularity", "jurisdictional error", "shall be accompanied by".
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30
Case
[2017] HCA 30
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Forrest & Forrest Pty Ltd against the decision of the Court of Appeal of the Supreme Court of Western Australia. The dispute concerned the validity of applications for mining leases lodged by the second and fourth respondents, which were allegedly not accompanied by a mineralisation report as required by s 74(1)(ca)(ii) of the *Mining Act 1978* (WA). Forrest argued that this non-compliance rendered the applications invalid and deprived the warden of jurisdiction to hear them.
The central legal issue before the High Court was the proper construction of s 74(1)(ca)(ii) of the *Mining Act 1978* (WA) and, in particular, the effect of non-compliance with its requirement that an application for a mining lease "shall be accompanied by" a mineralisation report. The court had to determine whether this requirement was a condition precedent to the exercise of jurisdiction, such that failure to comply invalidated the application and any subsequent proceedings, or whether it constituted an informality or irregularity that could be overlooked.
The High Court reasoned that the language of s 74(1)(ca)(ii), particularly the phrase "shall be accompanied by," indicated a mandatory condition precedent. The Explanatory Memorandum for the relevant amending legislation underscored the intention to limit mining lease applications to cases where significant mineralisation had been discovered or mining proposals were lodged, thereby preventing the use of lease applications for further exploration. The court concluded that non-compliance with this statutory requirement was not a mere informality or irregularity but a failure to satisfy a jurisdictional prerequisite. Consequently, the warden lacked jurisdiction to hear the applications, and any subsequent report or recommendation made by the warden was invalid.
The High Court allowed the appeal, setting aside the orders of the Court of Appeal. It declared that the warden did not have jurisdiction to hear the applications for mining leases 08/478 and 08/479 as they were not accompanied by the requisite mineralisation report. The court also declared that the warden did not make a valid report and recommendation to the Minister and issued a writ of certiorari quashing the purported report and recommendation. The second and fourth respondents were ordered to pay the appellant's costs.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Appeal of the Supreme Court of Western Australia made on 7 July 2016 and 2 September 2016 and, in their place, order that:
(a) the appeal be allowed;
(b) orders 4 and 5 of Allanson J made on 4 June 2015 be set aside and, in their place, order that:
(i) it be declared that the first respondent did not have jurisdiction to hear the second respondent's application for mining lease 08/478 or the fourth respondent's application for mining lease 08/479 as each application was not accompanied by a mineralisation report referred to in s 74(1)(ca)(ii) of the Mining Act 1978 (WA);
(ii
) it be declared that the first respondent did not make a valid report and recommendation to the Minister under s 75(5)(c) of the Mining Act 1978 (WA) in relation to the second respondent's application for mining lease
08/478 or the fourth respondent's application for mining lease 08/479;
(iii) a writ of certiorari be issued quashing the purported report and recommendation made by the first respondent under s 75(5)(c) of the Mining Act 1978 (WA) in relation to the second respondent's application for mining lease 08/478 and in relation to the fourth respondent's application for mining lease 08/479; and
(iv) the second, third and fourth respondents pay the applicant's costs of the judicial review application; and
(c) the second and fourth respondents pay the appellant's costs of the appeal.
3. The second and fourth respondents pay the appellant's costs of the appeal to this Court.
Background
Background to the litigation
It is to be noted that the indefeasibility of title provided by the first clause of s 116(2) to a successful applicant protects only against "any informality or irregularity in the application or … proceedings previous to the grant … of that tenement". As will be explained in due course, non‑compliance with the conditions in ss 74, 74A and 75 cannot sensibly be described as an "informality or irregularity in the application or … proceedings previous to the grant" of the mining lease.The facts On 28 July 2011, the second and fourth respondents to this appeal lodged applications for mining leases 08/478 ("M478") and 08/479 ("M479") respectively. No mining operations statement or mineralisation report was lodged contemporaneously with these applications[4].[4]Forrest & Forrest Pty Ltd v Wilson (2016) 10 ARLR 81 at 85‑86 [15]. On 1 September 2011, Forrest lodged objections to M478 and M479, which related to land within the boundaries of the Minderoo pastoral lease held by Forrest near Onslow in the Pilbara region of Western Australia[5]. [5]Forrest & Forrest Pty Ltd v Wilson (2016) 10 ARLR 81 at 86 [17]. A few months after the applications were lodged, a mineralisation report for each application was lodged[6]. It does not appear that mining operations statements were ever lodged.[6]Forrest & Forrest Pty Ltd v Wilson (2016) 10 ARLR 81 at 86 [17]. By August 2012, the Director, Geological Survey had prepared a report under s 74A of the Act for each application. In December 2012, the warden (who is the first respondent) heard the applications with the s 74A reports of the Director, Geological Survey before him[7]. [7]Forrest & Forrest Pty Ltd v Wilson (2016) 10 ARLR 81 at 86 [18].The warden's report In a report (in the form of reasons for decision) delivered on 31 January 2014, the warden held that he had jurisdiction to hear applications M478 and M479 notwithstanding that they were not accompanied by a mineralisation report when the applications were made[8].[8]Yarri v Forrest & Forrest Pty Ltd [2014] WAMW 6 at [37]. The warden's report reached the same conclusions in relation to a third mining lease application, 08/489 ("M489"), which was lodged by the third respondent[9]. The second, third and fourth respondents are related entities[10].[9]Yarri v Forrest & Forrest Pty Ltd [2014] WAMW 6 at [37].[10]Forrest & Forrest Pty Ltd v Wilson [2015] WASC 181 at [1]. At the outset of the warden's reasons, he dealt with an objection by Forrest that he had no jurisdiction to hear the applications on the basis that they were not accompanied by mineralisation reports, as required by s 74(1)(ca)(ii), at the time of application. It was argued by Forrest that the requirement under s 74(1)(ca)(ii) that the mineralisation report be submitted contemporaneously with the application was a strict one, as indicated by the circumstance that, in contrast to the case of a mining proposal in s 74(1)(ca)(i), no provision was made for the late lodgement of a mining operations statement or a mineralisation report after the date of application[11]. It was argued that non‑compliance with s 74(1)(ca)(ii) meant that the condition upon which the Director, Geological Survey was required to give the Minister a report under s 74A(1) was not satisfied. It was said that, by parity of reasoning, nor was the condition of the warden's power to hear the application under s 75(4a) of the Act satisfied[12]. Accordingly, Forrest submitted, the warden was obliged to conclude that he lacked jurisdiction to hear and determine the applications[13].[11]Yarri v Forrest & Forrest Pty Ltd [2014] WAMW 6 at [22].[12]Yarri v Forrest & Forrest Pty Ltd [2014] WAMW 6 at [27]-[28].[13]Yarri v Forrest & Forrest Pty Ltd [2014] WAMW 6 at [29].
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, BELL, GAGELER AND KEANE JJ
NETTLE J
In introducing ss 74(1)(ca)(ii) and 74A into the Act by passage of the Mining Amendment Bill 2004 (WA), the Explanatory Memorandum for the Bill stated that the changes were to "ensure a mining lease is only applied for when accompanied by a notice of intent to commence productive mining operations or a statement that significant mineralisation exists" (emphasis added)[54]. Similarly, the Minister for State Development referred in his second reading speech[55] to the significant problem that exploration title holders were using the mechanism of a mining lease application as a way to seek "further exploration rights rather than a title for productive mining". The Minister explained that the Bill would address this problem by "limit[ing] new applications for mining leases to those cases where significant mineralisation has been discovered or mining proposals are lodged with the application".[54]Western Australia, Legislative Assembly, Mining Amendment Bill 2004, Explanatory Memorandum at 1.[55]Western Australia, Legislative Assembly, Parliamentary Debates (Hansard), 26 August 2004 at 5728‑5730.Conclusion For these reasons, the appeal to this Court should be allowed and the relief sought by Forrest granted. In relation to the relief sought by Forrest, it may be noted that no order is sought to set aside any mining lease that might have been granted to the second and fourth respondents. It may be that Forrest is content to rely upon the apparent willingness of the Minister to abide the result of these proceedings[56].[56]Forrest & Forrest Pty Ltd v Wilson [2015] WASC 181 at [11].Costs All four respondents filed submitting appearances in these proceedings. The second to fourth respondents filed and served written submissions on costs. They submitted that in the event that Forrest's appeal were to succeed, the usual order as to costs, whereby costs follow the event, should not be made. They argued that none of them played a substantive role in, or contributed significantly to, the overall costs of the proceedings. The position of the third respondent is significantly different from that of the second and fourth respondents. On Forrest's judicial review application, Allanson J upheld Forrest's challenge to the warden's recommendation in relation to the application of the third respondent. His Honour found that the warden did err in recommending the grant of M489 to the third respondent, and granted a declaration that the warden's recommendation in respect of that application was invalid[57]. No appeal was brought against that decision, and the third respondent played no part in Forrest's appeals to the Court of Appeal and this Court, save as to making submissions as to costs.[57]Forrest & Forrest Pty Ltd v Wilson [2015] WASC 181 at [129]. The second and fourth respondents gave notice of their intention to take part in Forrest's appeal to the Court of Appeal, and filed written submissions and a notice of contention in that regard. Before the hearing of that appeal, the solicitors for the second and fourth respondents were granted leave to cease acting in the proceedings on their behalf. The second and fourth respondents were not represented at the hearing of the appeal. Upon dismissing the appeal, the Court of Appeal gave the second and fourth respondents liberty to apply for an order for costs, and subsequently ordered Forrest to pay their costs.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, GAGELER AND KEANE JJ,
NETTLE J