Forrest & Forrest Pty Ltd v Wilson
[2016] WASCA 116
•7 JULY 2016
FORREST & FORREST PTY LTD -v- WILSON [2016] WASCA 116
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 116 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:96/2015 | 9 FEBRUARY 2016 | |
| Coram: | McLURE P NEWNES JA MURPHY JA | 7/07/16 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | FORREST & FORREST PTY LTD STEPHEN McKENZIE WILSON YARRI MINING PTY LTD QUARRY PARK LTD ONSLOW RESOURCES LTD |
Catchwords: | Mining law Proper construction of s 74, s 74A and s 75 of Mining Act 1978 (WA) Meaning of 'accompanied by' in s 74(1) Whether lodgement of documents specified in s 74(1)(ca)(ii) a jurisdictional fact or a condition of validity Whether failure to lodge mining operations statement a mandatory relevant consideration |
Legislation: | Mining Act 1978 (WA), s 71, s 74, s 74A, s 75, s 105A, s 111A, s 116(2) Mining Amendment Act 2012 (WA) Mining Regulations 1981 (WA), r 25AA, r 64A(1), r 146 |
Case References: | Hot Holdings Pty Ltd v Creasy (1996) 16 WAR 428 Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Tasker v Fullwood (1978) 1 NSWLR 20 Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd (2010) 41 WAR 134 Yarri v Forrest & Forrest Pty Ltd [2014] WAMW 6 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FORREST & FORREST PTY LTD -v- WILSON [2016] WASCA 116 CORAM : McLURE P
- NEWNES JA
MURPHY JA
- Appellant
AND
STEPHEN McKENZIE WILSON
First Respondent
YARRI MINING PTY LTD
Second Respondent
QUARRY PARK LTD
Third Respondent
ONSLOW RESOURCES LTD
Fourth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : ALLANSON J
Citation : FORREST & FORREST PTY LTD -v- WILSON [2015] WASC 181
File No : CIV 2054 of 2014
Catchwords:
Mining law - Proper construction of s 74, s 74A and s 75 of Mining Act 1978 (WA) - Meaning of 'accompanied by' in s 74(1) - Whether lodgement of documents specified in s 74(1)(ca)(ii) a jurisdictional fact or a condition of validity - Whether failure to lodge mining operations statement a mandatory relevant consideration
Legislation:
Mining Act 1978 (WA), s 71, s 74, s 74A, s 75, s 105A, s 111A, s 116(2)
Mining Amendment Act 2012 (WA)
Mining Regulations 1981 (WA), r 25AA, r 64A(1), r 146
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr S K Dharmananda SC & Mr A J Papamatheos
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Fourth Respondent : No appearance
Solicitors:
Appellant : Mizen & Mizen
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Fourth Respondent : No appearance
Case(s) referred to in judgment(s):
Hot Holdings Pty Ltd v Creasy (1996) 16 WAR 428
Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Tasker v Fullwood (1978) 1 NSWLR 20
Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd (2010) 41 WAR 134
Yarri v Forrest & Forrest Pty Ltd [2014] WAMW 6
1 McLURE P: I would dismiss the appeal. The issues in the appeal centre around the proper construction of s 74, s 74A and s 75 of the Mining Act 1978 (WA) (the Act) as it stood prior to the commencement of the Mining Amendment Act 2012 (WA)
2 The facts and issues are best appreciated against the background of the detail of the statutory framework. The primary issue is whether the failure to lodge, at the time of the application for a mining lease or at all, one or both of the documents in s 74(1)(ca)(ii) deprives the warden of jurisdiction to make a recommendation to the Minister under s 75 of the Act.
The legislative scheme
3 Statutory expressions which assume particular significance are italicised in this discussion. Section 71 of the Act is the source of the power to grant a mining lease. It provides:
Subject to this Act, the Minister may, on the application of any person, after receiving a recommendation of the mining registrar or the warden in accordance with section 75, grant to the person a lease to be known as a mining lease on such terms and conditions as the Minister considers reasonable.
4 Section 74 of the Act relevantly provides:
(1) An application for a mining lease -
(a) shall be in the prescribed form; and
(b) shall be accompanied by the amount of the prescribed rent for the first year of the term of the lease or portion thereof as prescribed; and
(c) shall be accompanied by the prescribed application fee; and
(ca) shall be accompanied by -
(i) a mining proposal; or
(ii) a statement in accordance with subsection (1a) and a mineralisation report prepared by a qualified person;
and
(d) shall be lodged in the prescribed manner.
(1AA) Instead of accompanying an application for a mining lease under subsection (1)(ca), a mining proposal may be lodged within the prescribed time and in the prescribed manner and, if so lodged, is to be treated for the purposes of this Division as a mining proposal that accompanied the application for the mining lease under section 74(1)(ca).
5 The statement referred to in s 74(1)(ca)(ii) (the mining operations statement) is required to set out information about the mining operations that are likely to be carried out in, on or under the land the subject of the application, including when mining is likely to commence and the most likely method of mining (s 74(1a)).
6 An applicant is obliged to serve 'such notice of the application as may be prescribed' on the owner and occupier of the land within the prescribed period (s 74(3)). The relevant prescribed matters are contained in the Mining Regulations 1981 (WA) (Regulations). Regulation 64A(1) provides that for the purposes of s 74(3), the notice to be served on the owner and occupier shall be in the form of Form 21 and be served within 14 days 'of the lodging of the application to which the notice relates'. The prescribed time for s 74(1AA) is '14 days after the day on which the application is lodged' (reg 25AA).
7 The term 'mineralisation report' in s 74(1)(ca)(ii) means 'a report that sets out details of exploration results in respect of minerals located in, on or under the land to which the application relates' (s 74(7)).
8 Section 74A(1) of the Act provides:
If an application for a mining lease is accompanied bythe documentationreferred to in section 74(1)(ca)(ii), the Director, Geological Survey shall give the Minister a report as to whether or not there is significant mineralisation in, on or under the land to which the application relates.
9 The Director, Geological Survey (Director) may request the applicant to provide further information (s 74A(2)). The Director's report (the s 74A report) must be based solely on information contained in the mineralisation report and any further information requested by the Director (s 74A(3)) and the Director is obliged to give a copy of the s 74A report to the mining registrar and the warden (s 74A(4)). The term 'mineralisation report' in s 74A is defined to mean 'the mineralisation report that accompanied the application' (s 74A(7)).
10 Section 75 of the Act relevantly provides:
(1) A person who wishes to object to the granting of an application for a mining lease shall lodge a notice of objection within the prescribed time and in the prescribed manner.
(1a) A person is not entitled to lodge a notice of objection if the basis for the objection is that there is no significant mineralisation in, on or under the land to which the application relates.
(2) Subject to subsection (2a), if no notice of objection is lodged within the prescribed time, or any notice of objection is withdrawn, the mining registrar shall, unless subsection (4)(b) applies, forward to the Minister a report which recommends the grant or refusal of the mining lease and sets out the reasons for that recommendation.
(2a) If the application for the mining lease is accompanied by the documentation referred to in section 74(1)(ca)(ii), the mining registrar shall not forward a report under subsection (2) unless -
(a) the mining registrar has received a copy of the section 74A report in relation to the application; and
(b) the section 74A report states that there is significant mineralisation in, on or under the land to which the application relates.
(3) The mining registrar shall -
(a) recommend the grant of the mining lease if satisfied that the applicant has complied in all respects with the provisions of this Act; or
(b) recommend the refusal of the mining lease if not so satisfied.
(4) Subject to subsection (4a), if 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 forwarded a report to the Minister 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 the application for the mining lease 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.
(4a) If the application for the mining lease is accompanied by the documentation referred to in section 74(1)(ca)(ii), the warden shall not hear the application unless -
(a) the warden has received a copy of the section 74A report in relation to the application; and
(b) the section 74A report states that there is significant mineralisation in, on or under the land to which the application relates.
(5) The warden shall as soon as practicable after the hearing of the application forward to the Minister for the Minister's consideration -
(a) the notes of evidence; and
(b) any maps or other documents referred to in the notes of evidence; and
(c) a report which recommends the grant or refusal of the mining lease and sets out the reasons for that recommendation.
(6) On receipt of a report under subsection (2) or (5), the Minister may, subject to subsection (7), grant or refuse the mining lease as the Minister thinks fit, and irrespective of whether -
(a) the report recommends the grant or refusal of the mining lease; and
(b) the applicant has or has not complied in all respects with the provisions of this Act.
(7) In the case of an application for a mining lease made by the holder of -
(a) a prospecting licence under section 49; or
(b) an exploration licence under section 67; or
(c) a retention licence under section 70L,
the Minister shall, subject to subsection (8) and the other provisions of this Act, grant to that holder one or more mining leases -
(d) in respect of any part or parts of the land the subject of the prospecting licence, exploration licence or retention licence, as the case requires; and
(e) on such terms and conditions as the Minister considers reasonable.
(8) In the case of an application for a mining lease that is accompanied by the documentation referred to in section 74(1)(ca)(ii), the Minister shall refuse to grant the mining lease if the section 74A report states that there is no significant mineralisation in, on or under the land to which the application relates.
11 The prescribed time and manner referred to in s 75(1) is in reg 146. An objection is required to be in the form of Form 16 and must be made within, relevantly, 35 days 'after the day on which the application being objected to is lodged'.
12 Section 105A deals with the priorities between applicants for tenements and relevantly provides:
(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 initialrequirement in relation to his application has, subject to this Act, the right in priority over every other applicant.
13 Section 111A of the Act empowers the Minister to summarily terminate or refuse an application for a mining tenement before the mining registrar or warden has determined or made a recommendation in respect of an application.
14 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'.
The facts
15 On 28 July 2011 applications for mining leases 08/478 (M478) and 08/479 (M479) were lodged by the second and fourth respondents respectively. Neither a mining operations statement nor a mineralisation report was lodged contemporaneously with the relevant applications.
16 The applicants for M478 and M479 were, at the time of the applications, the holders of an exploration licence over the land the subject of the applications. As such, the applications for M478 and M479 were what is referred to as 'conversion applications'. Under s 67 of the Act the holder of an exploration licence has the right to apply for, and subject to s 75(9) to have granted pursuant to s 75(7), a mining lease or leases in respect of any part or parts of the land the subject of the exploration licence. Section 75(9) is not relevant for present purposes.
17 On 1 September 2011, the appellant lodged objections to M478 and M479 which related to land within the boundaries of a pastoral lease held by the appellant. A few months after the applications were lodged, a mineralisation report for each application was lodged. The unchallenged finding below is that mining operations statements were never lodged.
18 By August 2012 the Director had prepared a s 74A report for each application. The first respondent (the Warden) heard the applications in December 2012. The Director's s 74A reports were before him.
19 In a report (in the form of reasons for decision) delivered on 31 January 2014, the Warden recommended to the Minister that he grant M478 and M479 subject to conditions: Yarri v Forrest & Forrest Pty Ltd [2014] WAMW 6 [124] (the Warden's report).
20 The appellant applied to quash the recommendations of the Warden. The application was heard and dismissed by Allanson J (the primary judge).
The primary proceedings
21 The primary judge held that: (1) on the proper construction of s 74(1) of the Act, the mining operations statement and mineralisation report referred to in s 74(1)(ca)(ii) must be lodged contemporaneously with the application [45]; (2) the obligation to lodge those documents contemporaneously with the application is not a precondition to there being an application for the purposes of the Act and thus to the exercise of the Warden's jurisdiction [48]; (3) the Warden had jurisdiction to hear the applications and report to the Minister [71]; (4) a failure by the Warden to consider and/or report the applicant's failure to comply with the statutory requirement in s 74(1)(ca)(ii) to lodge a mining operations statement is not a condition of the validity of the Warden's report [72].
Issues in the appeal
22 The issues in the appeal (from the grounds of appeal and the second and fourth respondents (the respondents)) notice of contention are as follows:
1. is an application under s 74(1) of the Act 'accompanied by' the documents specified in s 74(1)(ca)(ii) if and when the documents are lodged, which may be after the lodgment of the application;
2. is the lodgment of the documents specified in s 74(1)(ca)(ii) a jurisdictional fact, that is, an essential condition that must be satisfied in order to enliven the warden's jurisdiction to hear under s 75(4) and then make a recommendation under s 75(5) of the Act;
3. is the failure to comply with the requirement in s 74(1)(ca)(ii) to lodge a mining operations statement a relevant consideration that the warden must consider and report to the Minister;
4. should prerogative relief be refused as a matter of discretion because (a) most of the information required to be included in the mining operations statement pursuant to s 74(1a) was provided prior to the Warden's hearing and the omitted information was not material and (b) it is open to the appellant to make submissions to the Minister regarding any non-compliance with the Act.
Issue 1 - contemporaneous lodgment or not
23 The appellant's contention is that the statutory expression 'shall be accompanied by' requires that the documentation specified in s 74(1)(ca)(ii) be lodged contemporaneously with the application.
24 The respondents contend that the word 'accompany' means 'occur with' or 'be present with' in the sense that one thing coexists in the same time and place as the other. Thus the expression 'shall be accompanied by' does not require that the application, mining operations statement and mineralisation report be lodged at the same time; it only requires that there be a point at which the application is present with the mining operations statement and mineralisation report. If there is a time after the lodgment of the application when all relevant documents have been lodged, then they accompany the other.
25 I agree with the primary judge that the expression 'shall be accompanied by' requires that the documents specified in s 74(1)(ca)(ii) be lodged contemporaneously with the application. First, the text of s 74(1AA) compels that construction. A mining proposal lodged within 14 days after the day on which the application is lodged is deemed to be a mining proposal that accompanied the application.
26 Second, an application under s 74 is separate and distinct from the documents which must accompany it. The date of the lodgment of the application is an actual not deemed fact, it being the commencement point for the calculation of time under s 74(1AA) and s 74(3). It is to be contrasted with the language in s 105A which determines priority by reference to the time of compliance with the 'initial requirement in relation to his application': Hot Holdings Pty Ltd v Creasy (1996) 16 WAR 428.
27 Finally, this construction is consistent with the statutory purpose of s 74(1)(ca)(ii) and s 74(1AA), confirmed by the second reading speeches and explanatory memoranda for the Mining Amendment Act 2004 (WA) (the 2004 Amendment Act), which introduced s 74(1)(ca)(ii) and s 74(1a), and the Approvals and Related Reforms (No 2) (Mining) Act 2010 (WA), which introduced s 74(1AA).
28 Accordingly, on its proper construction, s 74(1)(ca)(ii) requires that the mining operations statement and mineralisation report be lodged contemporaneously with the application.
Issue 2 - the legal principles
29 The relevant legal principles were discussed in Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd (2010) 41 WAR 134. It is convenient to repeat them. It is necessary to distinguish between a precondition to the existence of a power and a condition regulating the exercise of a power. The failure to comply with a precondition to the existence of a power under the Act must always result in invalidity.
30 On the other hand, the failure to comply with a statutory requirement that is not a precondition to the existence of a power may, but not (in the absence of a statutory provision to the contrary) must, result in invalidity. This point is underscored in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. The majority in that case said:
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 … 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 [91]. (footnotes omitted)
31 The majority in Project Blue Sky criticised the distinction between directory and mandatory requirements, which they said deflected attention from the real issue which is whether an act done in breach of the legislative provision is invalid. They continued:
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid [93].
32 In Project Blue Sky, the court approved the approach taken in Tasker v Fullwood (1978) 1 NSWLR 20. In Tasker, the court identified the following propositions:
(1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance will be derived from the terms of other statutes;
(2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance;
(3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute;
(4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement;
(5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms.
Issue 2 - analysis
33 I have concluded that: (1) the requirement in s 74(1)(ca)(ii) of the Act that the mining operations statement and mineralisation report be lodged contemporaneously with the application is not a condition precedent to the existence of the jurisdiction of the warden to hear the application under s 75(4) of the Act; (2) non-compliance with the requirement to lodge the s 74(1)(ca)(ii) documents contemporaneously with the application does not otherwise invalidate the warden's hearing or recommendations; (3) the failure to lodge a mining operations statement at all does not invalidate the warden's hearing or recommendations; and (4) unless and until the Director has provided a s 74A report based on an applicant's mineralisation report, the warden will have no jurisdiction to hear or determine the application. My reasons for these conclusions are as follows.
34 The starting point is the scope and effect of s 75 as a whole, in context with s 71. The parties have conducted this litigation on the basis that a recommendation of the warden under s 75(5) is a condition precedent to the existence of the Minister's jurisdiction under s 75(6) of the Act. I will assume that is correct.
35 Neither party contended that the Minister's duty in s 75(7) to grant a mining lease was enlivened without the need for a recommendation from the warden under s 75(5) of the Act. It is arguable that such a recommendation is not required for the exercise of the Minister's power in s 75(7), which is confined to conversion applications. That construction is consistent with s 75(8) and the explanatory memoranda for the 2004 Amendment Act. In the circumstances contemplated by s 75 (8), a recommendation would never get to the Minister because of the prohibitions in s 75(2a) and (4a). However, as the proceedings below and in the appeal were not conducted on this basis, it can be left for determination in another case.
36 The scheme of s 75 is as follows. The mining registrar's obligation in s 75(3) to make a recommendation to the Minister only arises if the mining registrar is obliged to forward to the Minister a report under s 75(2). When the mining registrar is prohibited by s 75(2a) from forwarding a report to the Minister under s 75(2), there can be no recommendation enlivening the Minister's power under s 71 and s 75(6).
37 The same scheme applies where there is a notice of objection complying with pars (a) and (b) of s 75(4). The obligation in s 75(5) to make a recommendation to the Minister only arises if there has been a hearing of the application under s 75(4). The warden is prohibited from hearing the application unless the warden has received a copy of the s 74A report in relation to the application and that report states there is significant mineralisation in, on or under the land to which the application relates. The Minister's power in s 75(6) is only enlivened upon receipt of a report under (relevantly) s 75(5), which report cannot be provided if the warden is prohibited from conducting a hearing.
38 These are my reasons for the first and second conclusions. First, courts are ordinarily reluctant to characterise a fact or legislative criterion as jurisdictional for the reasons explained by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, 391. As previously noted, it has the automatic and inevitable consequence of invalidity of all that follows: Yarri [49]. In this case, the consequences would be that (1) the Warden's recommendation would be void; (2) the lack of a recommendation would deprive the Minister of the power to grant or refuse the application; and (3) the applicant would have to start from scratch by lodging a new application and accompanying payments and documents under s 74(1). The additional delay (it took over two and half years between lodgment of the applications in this case and the Warden's recommendation), gridlock in the administration of the Act and other prejudice is significant.
39 If the requirements in s 74(1)(ca)(ii) are not a condition precedent to the existence of the warden's jurisdiction, they would be conditions of the exercise of the power which may, but not must, result in invalidity. The delays, cost and other prejudice is relevant to both issues.
40 Second, the statutory expression 'shall be accompanied by' applies to the requirements in s 74(1)(b) (payment of the prescribed rent) s 74(1)(c) (payment of the prescribed application fee) and, subject to the deeming provision in s 74(1AA), s 74(1)(ca)(i) (lodgment of a mining proposal). It can be inferred that the statutory expression is intended to have the same meaning when used within the same, or contextual, provisions. Having regard to the variety in the nature of the requirements and the serious consequences of non-compliance however minor or technical, there is no justification in principle or purpose for concluding that contemporaneous lodgment is a condition precedent to the mining registrar or the warden making a recommendation.
41 Third, the statutory expression 'if an application for a mining lease is accompanied by the documentation in section 74(1)(ca)(ii)' in s 74A(1), s 75(2a), s 75(4a) and s 75(8) does not require a conclusion that compliance with the requirement in s 74(1)(ca)(ii) is jurisdictional. I agree with the primary judge that the statutory expression is descriptive, not prescriptive. Its purpose and effect is to identify that the relevant provision (s 75(2a), s 75(4a), s 75(8)) applies to an application falling within s 74(1)(ca)(ii) rather than an application falling within s 74(1)(ca)(i). The statutory expression means in effect 'when an application for a mining lease must be accompanied by the documents in section s 74(1)(ca)(ii)'. That conclusion is mandated by the statutory text and context.
42 Section 74(2a), s 74(4a) and s 75(8) contain prohibitions, the purpose and effect of which is to deprive the Minister of the power to grant a mining lease. In substance, there is no power to grant a mining lease unless a s 74A report has been provided and states there is significant mineralisation. For the purpose of these sections, the only relevant section s 74(1)(ca)(ii) document is the mineralisation report; the mining operations statement is irrelevant. Accordingly, there is no proper basis to construe the statutory expression as an additional requirement which would recast subs (2a) and (4a) to mean:
The mining registrar/warden shall not forward a report under subsection (2)/subsection (4) unless -
(a) the application for the mining lease is accompanied by the documentation referred to in section 74(1)(ca)(ii);
(b) the mining registrar has received a copy of the section 74A report in relation to the application; and
(c) the section 74A report states that there is significant mineralisation in on or under the land to which the application relates.
43 Fourth, the general approach in the Act to the consequences of non-compliance is a further indication of a legislative intention that contemporaneous lodgment of the s 74(1)(ca)(ii) document is not a condition precedent. For example, in the event the mining registrar has received a copy of the s 74A report and that report states there is significant mineralisation, the mining registrar is required by s 75(3) to provide a recommendation to the Minister even when the applicant has not complied with all provisions of the Act (in which event, he must recommend against the grant). By contrast, the warden is not required to recommend against the grant of a mining lease notwithstanding an applicant's failure to comply with all the provisions of the Act. Further, the Minister has the power to grant a mining lease even if the applicant has not complied in all respects with the Act.
44 This flexible approach to non-compliance is central to the scheme in s 75 and is consistent with text and purpose of s 116(2) of the Act. The scheme in s 75 manifests an clear intention that the requirement in s 74(1)(ca)(ii) is not a condition precedent to the warden's duty to hear in s 75(4) and to make recommendations in s 74(5). It also manifests an intention that non-compliance with the requirement in s 74(1)(ca)(ii) does not invalidate the warden's hearing or recommendations.
45 However, the failure to provide a mineralisation report at all will, as a matter of fact, prevent the satisfaction of the essential condition (a recommendation to the Minister) in s 75(2) and s 75(5). That is, without a mineralisation report there can be no s 74A report; without a s 74A report, there can be no recommendation by the mining registrar under s 75(2), no hearing by the warden under s 75(4) and no recommendation by the warden under s 75(5). In summary, although the requirement that the s 74(1)(ca)(ii) documents be lodged contemporaneously with the application is not jurisdictional or otherwise result in invalidity, it is an essential condition that a mineralisation report in respect of the application be lodged at some time. The same is not the case for the mining operations statement.
46 Issue 2 should be answered in the negative.
Issue 3 - relevant considerations
47 The primary judge found that the applicants for M478 and M479 did not at any stage lodge a mining operations statement. The appellant relied on the failure to consider and report on this as giving rise to a jurisdictional error or alternatively, an error of law on the face of the record. Either way, the appellant must establish that the Act, expressly or by necessary implication, requires the warden to take into account the relevant consideration, being the respondents' failure to comply, timeously or at all, with the obligation in s 74(1)(ca)(ii) to file a mining operations statement.
48 The relevant considerations principle is expressed in terms of an obligation to 'consider' a matter, not to 'report' a matter. The absence of any express reference in the reasons to a relevant (mandatory) consideration is relied on as evidence of a failure to consider, not as an additional substantive obligation. It is relied on by the appellant in this case as a substantive obligation because the warden does not decide or determine anything. However, this ground of judicial review does not extend to an obligation to report. Nor does it need to. The warden's recommendation is only subject to judicial review because it is a condition precedent to the existence of the Minister's power to grant or refuse a mining lease. The failure to take into account a mandatory relevant consideration is a breach of an implied statutory condition upon which the validity of the recommendation depends.
49 The Act does not expressly require the warden to take into account and/or report upon the respects in which the applicant has not complied with the provisions of the Act. That is in contrast with the obligation of the mining registrar under s 75(3).
50 The text, context and purpose of the relevant provisions of the Act do not give rise to the necessary implication for the following reasons. First, the warden is making an expert evaluative assessment rather than exercising a true discretionary power. Second, the warden's report and recommendation follows an adversarial hearing in which the parties will identify and ventilate the live issues in contention. That is what happened in this case. The Warden gave express consideration to the appellant's claim that the failure to lodge a mining operations statement at the same time as the application was a jurisdictional fact which deprived the Warden of jurisdiction to hear the application and make a recommendation on it: Warden's Report at [52]. Otherwise, the appellant's focus in the hearing was on the mineralisation report.
51 Third, many breaches will be immaterial or only marginally relevant to the warden's assessment of the merits of an application. If the warden is required to consider and report all breaches, the warden would also be required as a matter of course to consider and report on the materiality and extent of the information which was not, but should have been, before the warden under s 74(1a).
52 Finally, and most significantly, the reasons for concluding that non-compliance with the express conditions in s 74(1) does not result in an invalid exercise of the warden's duty make it well-nigh impossible to imply a condition (to take into account a mandatory relevant consideration) of the valid exercise of the duty to report and recommend.
53 The respondents' failure to comply with the requirement to lodge a mining operations statement is not a mandatory relevant consideration which the Warden was required to consider and report upon.
Issue 4
54 In view of my conclusions on Issues 1, 2 and 3, it is unnecessary to determine Issue 4.
Conclusion
55 For these reasons, the appeal should be dismissed.
56 NEWNES JA: I agree with McLure P.
57 MURPHY JA: I agree with McLure P.
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