Forrest & Forrest Pty Ltd v Wilson & Ors

[2017] HCATrans 64

[2017] HCATrans 064

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P59 of 2016

B e t w e e n -

FORREST & FORREST PTY LTD

Appellant

and

STEPHEN McKENZIE WILSON

First Respondent

YARRI MINING PTY LTD

Second Respondent

QUARRY PARK PTY LTD

Third Respondent

ONSLOW RESOURCES LTD

Fourth Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 31 MARCH 2017, AT 10.00 AM

Copyright in the High Court of Australia

____________________

MR A.J. MYERS, QC:   May it please the Court, I appear with MR A.J. PAPAMATHEOS, for the appellant.  (instructed by Mizen & Mizen)

MR P.D. QUINLAN, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MR T.C. RUSSELL, for the Attorney‑General for Western Australia as amicus curiae.  (instructed by State Solicitor’s Office (WA))

KIEFEL CJ:   Thank you.  The first to fourth respondents have filed an appearance submitting to any order the Court may make save as to costs and the second to fourth respondents have filed written submissions on that question.  Yes, Mr Myers.

MR MYERS:   Thank you, your Honours.  The oral submissions I will make this morning, I say with a high level of confidence, will be short in supplement to our written submissions.  Could I identify for your Honours the provisions of the Mining Act 1978 (WA), as amended, with which the Court is concerned. If your Honours have a copy of the Act, section 71 deals with the grant of a mining lease and then section 74 tells us how a mining lease is to be applied for:

(1)       An application for a mining lease –

(a)      shall be in the prescribed form –

 . . . 

(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 –

“Mineralisation report” is defined in subsection (7), and one can look at it briefly there.  There are copies of the relevant mineralisation reports in the appeal book; they are the first two documents and they run for about the first 50 pages, and the definition of a “qualified person” is also in subsection (7).  Subsection (1A) which deals with the content of the statement, is to be noted.  Then section 74A is of considerable importance.

KEANE J:   Mr Myers, could I just interrupt you for a moment.  The statement referred to in (1a), was there one?

MR MYERS:   The evidence is not clear about that.  If there was one, it was late.  Yes, my learned junior, who appeared below, has said there was no evidence that it was lodged.

KEANE J:   So, there was no evidence that it was lodged?

MR MYERS:   No evidence it was lodged.

GAGELER J:   But your complaint has only ever been about the absence of the mineralisation report.

MR MYERS:   It is, it is, although it must be conceded that the Court might be drawn into a question about whether such a statement is also required.  It is not part of the case that I am putting but the people in Western Australia may be waiting with bated breath to see what the Court says about that as well as a mineralisation statement.  I do not mean to put it facetiously but one could be drawn into a similar sort of analysis.  But if we can look at 74A quickly - and I will have to deal with it subsection by subsection - just leaving aside for a moment the prefatory clause and its precise meaning:

If an application for a mining lease is accompanied . . . 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.

If one goes down to subsection (3) then:

The report shall be based solely on information contained in the mineralisation report and any further information provided by the applicant in response to a request under subsection (2).

Subsection (2) provides that:

For the purposes of preparing the report, the Director, Geological Survey may request the applicant to provide further information in relation to matters dealt with in the mineralisation report.

Subsection (4):

The Director, Geological Survey shall give a copy of the report to the mining registrar and the warden.

(5)The Director General of Mines shall ensure that the report is available for public inspection -

Then there are some regulations, and then subsection (7), which is important:

mineralisation report means the mineralisation report that accompanied the application.

That is the application under the previous section which has to be accompanied by the mineralisation report.  Then if I could look at section 75(1):

A person who wishes to object to the granting of an application for a mining lease shall lodge at the office of the mining registrar a notice of objection –

Then subsection (2) and (3) – (2a) and (3) deal with a case where there is no notice of objection lodged.  Subsection (4) says:

Subject to subsection (4a), if a notice of objection –

(a)       is lodged within the prescribed time . . . 

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.

Subsection (4a) has those same preparatory words again.  It goes on:

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.

Then subsection (5), the warden forwards to the Minister “for the Minister’s consideration” certain documents following the hearing, including:

(c)a report which recommends the grant or refusal of the mining lease –

and sets out the reasons for that recommendation.  Subsection (6):

On receipt of a report under subsection (2) –

with which we are not concerned because it was an objection:

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 –

et cetera.  Then one should note, because I will come to it briefly later, section 105A which deals with priorities between applications.  It accords, in subsection (1) priority to “the applicant who first complies with the initial requirement” and, in subsection (4), the initial requirement in an application is a reference:

(b)in the case of an application for a . . . mining lease ‑

to pegging out the claimed area.  So the person who first pegs out the claimed area is the person who has priority for consideration by the registrar, if it is the registrar, or by the warden if there is an objection.

GAGELER J:   Is there any relationship between the provision of the mineralisation report and the pegging out.

MR MYERS:   No, there is not, there is not.  I do not want to - well, no statutory express connection, but if a person does not have to gain a report under 74A, based upon a mineralisation report, but that person is the first person to satisfy the initial requirement, the pegging out, that person is first in the queue even though they do not have a completed application for consideration for the grant of a lease. 

GAGELER J:   So you are reading the requirement for the mineralisation report into the reference in 105A(1) to an application.  Is that right?  I just cannot see how 105A fits into your argument otherwise.

MR MYERS:   I will try and answer that.  It is not an argument based upon the meaning of section 74A and so on.  So your Honour is correct in saying that, but in paragraph 47 of our written submissions we set out some of the adverse consequences to the administration of the Act that would follow if the decision below is correct.  If the decision below is correct, you could have an application with no mineralisation report where the applicant had been the first to satisfy the initial requirement, even though ‑ ‑ ‑

KEANE J:   So, that even they are not in a position to provide a mineralisation report or a mining plan ‑ ‑ ‑

MR MYERS:   They can stand in the way of ‑ ‑ ‑

KEANE J:   ‑ ‑ ‑ of someone who is.

MR MYERS:   ‑ ‑ ‑ of someone who is, yes.  That is the consequence and that is the only reason I want to refer it and I will not need to refer to it again but that is the first of the three matters that we advert to in that paragraph 47.  I am getting a bit off the track. 

GAGELER J:   I am sorry.

MR MYERS:   No, no, it is not your fault, your Honour, and I am going to come back to, very briefly, section 116(2), upon which the learned President below relied.  Your Honours understand, of course, that there is no dispute that, according to its proper construction, section 74(1)(ca)(ii) requires the mining’s operation statement and the mineralisation report be lodged contemporaneously with the application.  So that is out of the way.

The only dispute is whether, if the mineralisation report does not accompany the application for a mining lease, the warden can hear an application under section 75(4a) and make a report under section 75(5).  That hearing and that report is, it is acknowledged by all, a condition for the exercise of the power by the Minister under 75(6). 

Now, there are two separate reasons, in our submission, why the warden cannot hear an application if a mineralisation statement did not accompany the application under section 74.  First, the warden cannot hear the application unless the warden has received a copy of the 74A report in relation to the application.  That appears from 75(4a), and the report states the significant mineralisation.

The section 75A report must be based solely on information contained in the mineralisation report referred to in 74A, and any further information provided in response to a request under subsection (2), which is itself related to the contents of the mineralisation report. 

BELL J:   Accepting that, and accepting that the Act requires that the mineralisation report accompany the application, but the issue here being what is the consequence of failure to do so, if the mineralisation report is late how does that bear on your argument to the extent that you draw our attention to 74A and the requirement that the Director of the Geological Survey have access to the mineralisation report?  Plainly he must but ‑ ‑ ‑

MR MYERS:   Because the mineralisation report referred to in 74A means, as said in subsection (7), “the mineralisation report that accompanied the application”.

BELL J:   Yes.  I understand that. 

MR MYERS:   It is as clear as English language could be.

BELL J:   Yes.  It is a question of the consequence and it is just to take us through a scheme.  Plainly enough, the warden cannot make a determination without the 74A report.  The 74A report must depend upon the mineralisation report, together with such further information as the applicant may furnish.

MR MYERS:   Yes.  And it has to be the mineralisation report that accompanied the application.

BELL J:   Yes.  I understand.

MR MYERS:   The legislature has made clarity doubly clear by subsection (7).

BELL J:   Yes.

MR MYERS:   The mineralisation report is a fulcrum, as it were, about which all this hinges, and one can infer that the purpose of all this legislation is to ensure that the system is not clogged up with applications that do not have mineralisation reports, because you can only get, subject to the Minister’s discretion, a mining lease if you establish that there is significant mineralisation to the satisfaction of the director. 

So that is the purpose of it all, but the statutory scheme is made very clear.  The learned President below, though she mentioned 74A and adverted to the existence of subsection (7), did not make it any part of her reasoning, and the primary submission that we put is that based on 74A.  As I say, the fulcrum.  The second submission, and it is an independent submission, is that the opening words of section 75(4a), which are replicated in three other provisions, I think:

If the application for the mining lease is accompanied by the documentation referred to in section 74(1)(ca)(ii) –

So that is also expressed as a condition.

BELL J:   And it distinguishes those applications from mining proposals, is that ‑ ‑ ‑

MR MYERS:   Well, it does distinguish them from mining proposals, but then one is – the purpose of that clause, the opening clause of subsection (4a) of 75, is not, we say, as the learned President decided, simply to identify this application as being one under (ca)(ii).  The words that he used go far beyond saying that, and they are quite sensible in the sense that we would have them mean:

If the application for the mining lease is accompanied by the documentation referred to –

in such and such.  So, if you have got that, “the warden shall not hear the application unless” so and so.  So that, if the preliminary requirement which comes from 74(1)(ca)(ii) is not satisfied, nonetheless unless the warden has the 74A report and it states the significant mineralisation, the warden shall not proceed with the application.  So it emphasises – the opening words emphasise that “accompanied by” means accompanied by, and the consequence of it not being accompanied by those documents very sensibly is that the process cannot proceed any further.

GAGELER J:   Is there still an application?  I mean, that has a lot of consequences under the Act, including for the extension of an exploration licence.

MR MYERS:   It does.  The answer is yes.

GAGELER J:   What happens to it?

MR MYERS:   If a public official has got an application which does not satisfy other requirements of the Act that are mandatory to be satisfied, then that public official could leave it on the file or he could send it back with a letter saying “We have received your application but we draw to your attention that you have also got to provide a mineralisation report at the same time and pay the fees and pay the first year’s rent or the first six month’s rent and until you do so the application is” ‑ no, I should not say that.

GAGELER J:   You have got to go back.

MR MYERS:   You have got to go back, you do it again.

GAGELER J:   Yes.

MR MYERS:   You do it again.

NETTLE J:   Why cannot the official just hold it like the registry might do here and say well, you need to put an affidavit in support of it, or in your case, need to put a mineralisation report in support of it and when you have I will treat it as on foot and we will get going.

MR MYERS:   Well, that is what the Court of Appeal decided below.  Our first answer to that is based on 74A because that is an independent requirement.  But secondly ‑ ‑ ‑

NETTLE J:   I am sorry, I do not follow that – 74 big A?

MR MYERS:   Yes, big A, yes.

NETTLE J:   But why is that an answer?

MR MYERS:   Because the director cannot make his report except upon a mineralisation report that accompanied the application.

NETTLE J:   Granted, but if the clerk that receives the thing in the first place writes back or rings up the lodger of the application and says “Well, look, you have not put the mineralisation report in, you need to, it cannot go ahead until you do” and then when it comes in sets the process going. 

MR MYERS:   But that is not – our submission is that is not the way the Act works, and the Act is so established with the clear words that one has adverted to to require people to lodge the mineralisation report otherwise the system is clogged up with a lot of applications that may hold up others, because of section 105A, who complete the requirements of the statute. 

NETTLE J:   I just wonder whether it is an application until and unless it satisfies the conditions set out in section 74.

MR MYERS:   Well, your Honour, we do not put the proposition that it is not.  It is not necessary for our case and ‑ ‑ ‑

NETTLE J:   It is rather because if it is not until and unless the mineralisation report is provided then you have no case, because it was.

MR MYERS:   The mineralisation – I am sorry.

NETTLE J:   The mineralisation report was provided, albeit some months after the event. 

MR MYERS:   Yes, yes, it was.

NETTLE J:   If it was only at that point that it became an application you have no case.

MR MYERS:   Well, that may be so, it may be so, but what it says – and I look at 74(1):

An application for a mining lease –

(a)       shall be in the prescribed form –

and then it shall be “accompanied by” various things, so the application is distinguished from that which must accompany it.

KIEFEL CJ:   And it is the application which is served on the owner of land – owner or occupier of land.  They serve two different purposes.

MR MYERS:   Yes, and there are a lot of provisions that deal with applications.

KIEFEL CJ:   So the application and the mineralisation report serve – well, the mineralisation report is really something that has to be taken into account by those concerned with the Act.  But, presumably, the owner and occupier of the land does not need to see the mineralisation report to understand what has happened – what is proposed in respect of the land.

MR MYERS:   Probably not with what is proposed but that owner would probably be interested in the (1a) statement when mining is about to commence and so on.  But, in any event, the answer that I make to your Honour Justice Nettle is that section 74 itself distinguishes between the application and that which must accompany it and regulation 64 - and I am sure my memory is correct, I went through all this stuff - regulation 64 tells you what – what an application must contain and it refers to a form which is Form 21.  So that is in explication of the answer to your Honour Justice Nettle.

NETTLE J:   Thank you.

MR MYERS:   Now, let me just say a little about the judgment below.  I have put the submissions that constitute our case, the two contentions, one based on 74A and one based on the opening clause of 75(4a).

BELL J:   Your argument does accept that the consequence of success is that the indefeasibility provisions of 116(2) do not avail so that in the case of a mining lease that is granted, the Minister being unaware that the mineralisation report was furnished four days after the application, might, in the hands of the subsequent holder of the mining tenement, be found to be no lease at all.

MR MYERS:   Section 116(2) - your Honour’s question directs attention to that - falls into two parts.  One can set aside the opening expression “Except in the case of fraud”.  It refers to:

a mining tenement granted or renewed under this 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 ‑ ‑ ‑

BELL J:   Yes.

MR MYERS:   Now, this would not be such – I agree with what your Honour has put – this would not be such an irregularity – this is an irregularity that goes to the root of the grant, as was recognised by the Court of Appeal in the Yarri Case - I will refer your Honours to a passage in that in a moment.  So that is the first part of it and then there is delayed indefeasibility it seems, in favour of a person dealing with a registered holder.  So it is not the immediate indefeasibility that the High Court decided applied to Torrens statutes in 1967.  That is Chief Justice Barwick’s decision - I cannot call it to mind for the moment.

KEANE J:   Frazer v Walker.

MR MYERS:   Frazer v Walker, of course, Frazer v Walker, thank you, your Honour.  So, this does not – this section 116(2) is not an instance of immediate indefeasibility, the indefeasibility is deferred in relation to the second part of the subsection (2).

BELL J:   Accepting that, but when one looks to the question of the statutory scheme and was it the intention to invalidate, one significant consideration might be that the benefit of the indefeasibility that 116(2) confers is lost in circumstances that might involve a high degree of technicality in the case of a mineralisation report that is furnished a matter of days late.

MR MYERS:   With respect, your Honour, that is not what we are putting.  In the hands of the original grantee, there is no indefeasibility.

BELL J:   Yes, I understand that.

MR MYERS:   But in the case of a later person, there may be ‑ and I would submit I think that there is, by reason of the words:

no person dealing with a registered holder . . . shall be required or in any way concerned to inquire . . . or ascertain the circumstances ‑

They look like the words of indefeasibility in the hands of someone who takes from the grantee.

BELL J:   Yes, I understand.  In the hands of the third party, yes.

MR MYERS:   So the injustice, as it might be said, that your Honour is concerned about really does not bite because the flaw in the grant only applies to the original grantee who, ex hypothesi, has not done what she or he should have done about mineralisation reports. 

GAGELER J:   Apart from Yarri, which you will take us to, is there any authority that bears on that particular construction of the second half of section 116?

MR MYERS:   Yes.  Could I refer your Honours to our written submissions.  I am going to go to paragraph 67 on page 14.  Footnote 18 refers to the decision in Crocker and other decisions in Western Australia that deal with the subject.  I wanted to refer to Yarri, which is the last case, nine on our list, to paragraphs 49 and 50:

The respondents also rely on ss 59(6) and 116(2) as indicating a general legislative intent to avoid the inconvenience and prejudice (to which I would add, uncertainty) resulting from mining tenements being invalid for non‑compliance with the Act.  These provisions do not support a conclusion that the legislature intended that there be no preconditions to the existence of the power to grant a mining tenement.  First, those provisions do not apply where a precondition to the existence of a power has not been satisfied.

That is what we say is the case here:

Second, the submission is inconsistent with the decision of the High Court in Hot Holdings that the second matter in s 57(1) (the recommendation of a mining registrar or warden) is a precondition to the existence of the power.

Paragraph 50:

The public inconvenience, prejudice and uncertainty resulting from invalidity and the existence of statutory penalties for a breach of the Act are powerful and weighty considerations where the statutory language and structure are equivocal or ambiguous.  However, in this case the legislative intention is clear that the existence of the power to grant an exploration licence ‑ ‑ ‑ 

and one could substitute “mining lease”:

is conditioned on the exercise of the right to make an application.

Now that is not in like case with this.  We are not talking about whether there is in fact an application.  The High Court in Hot Holdings said there has to be an application.  Now, if your Honour Justice Gageler’s question was about the second part of ‑ ‑ ‑

GAGELER J:   Yes.

MR MYERS:   Well, this does not deal with it.  I do not know of any such authority but the language of the provision is precisely, in the second part, the sort of language which would give indefeasibility, enabling one to rely upon the terms of the register.

GAGELER J:   Well, it seems to do that but it would also, at least on one reading, allow someone dealing with the first registered holder to be in the same position, perhaps a ‑ ‑ ‑

MR MYERS:   Yes, the person dealing with the first registered holder could but that is a deferred indefeasibility.  The debate that was settled in 1967 in Frazer v Walker in relation to Torrens legislation went this way:  once there is registration even in favour of a person who should not have been registered and knew he should not have been registered ‑ let us say – that person has the benefit of indefeasibility.

Until that case, the argument was, does the person dealing with the registered holder have indefeasibility or is it only the person dealing with the person who dealt with the registered holder and there were a lot of cases that went one way or another, as best I can recall, on that point.  But here, we would say, with respect, that the words, apt to protect any person dealing with a registered holder, and that would include a person dealing with the person who was registered but not entitled to be registered.  So, if there is no intervention before that point, the person who took, could rely on the register but I cannot refer your Honour to authority for that proposition but that is a natural reading of the provision. 

Can I just say a few things about the reasons of the learned judge below?  Would your Honours be good enough to look at paragraph 33 of the decision below?  In that her Honour says:

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 ‑

and non‑compliance:

does not otherwise invalidate the warden’s hearing or recommendations ‑

They are the first two conclusions.  Then in paragraph 38, her Honour says:

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 –

Now, that is case number 5 on our substituted list.  If I could just take your Honours to the passage that is relied upon, it is at page 391 of the volume of the Commonwealth Law Reports, and Justice Dixon, who delivered the leading judgment of the majority - Chief Justice Latham dissented - was dealing with a case concerning a magistrate’s jurisdiction, so it is rather different from this case in its context.  It is a case dealing with the jurisdiction of a court and whether – the question was really whether the magistrate had power to decide his own jurisdiction or not.  His Honour says about point 4:

It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend.

Well, you could substitute for that “the jurisdiction of an administrative official”, if “jurisdiction” is the right word:

But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid.  Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.

So his Honour goes on.  One can understand quite readily why that intention would need to be very clearly expressed dealing with the court’s jurisdiction, but the observations of his Honour, which the learned President relies upon, are subject always, as the passage itself makes clear, to what is the legislative intention expressed in the sections of the Act which contain the criterion in issue, and the legislative intention in 74A could not be more clearly expressed. 

Then her Honour refers to the Yarri decision, paragraph 49 which I have already taken your Honours to, and towards the end of – it is the last sentence of paragraph 38:

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.

If that is a reference to the particular delay in this case, there is no evidence about how the delay occurred and whatever the delay was it cannot determine the meaning of the statute, and “gridlock in the administration of the Act” we say, respectfully, is caused by allowing applications which cannot proceed to perfection to be lodged and to sit there and clog up the system as they undoubtedly do because of the terms of section 105A of the Act.

BELL J:   Did her Honour deal with that aspect, the priority created by ‑ ‑ ‑

MR MYERS:   She did not, she did not.  Then, paragraph 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), s74(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 . . . 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.

We say two things about that.  The first is that it completely overlooks section 74A, completely.  Secondly, we contest the judgment that the requirements that are identified are not such that if there is non‑compliance there should be, nonetheless, a grant or the possibility of a grant of a lease.  If you have not paid the fee or paid the rent or lodged a mining proposal, what is so unjust or adverse to proper administration of the legislation in saying you cannot go forward with your application.

KEANE J:   Rather, it is almost the other way around, is it not, the notion that you have an application that can go forward without paying a fee.

MR MYERS:   Exactly.

KEANE J:   That seems to be impossible to accept and if that is impossible to accept, how can you go forward without complying with the other provisions?

MR MYERS:   We say, with respect, that is so, your Honour, and far from indicating what her Honour the learned President suggests, we say that those provisions point in the other direction in favour of the contentions that we are advancing.  The third consideration is identified in paragraph – or reason, in paragraph 41:

the statutory expression ‘if an application for a mining lease’ –

et cetera, these are the prefatory words:

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 . . . 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 74(1)(ca)(ii)’.

We say several things about it.  In the first place, the words are clear and they are conditioned on “if”.  If this has been done, then the process can proceed and to give them the meaning her Honour suggests, she has to recast them, as she does in this analysis.

KEANE J:   And in a self‑contradictory way, saying that they are descriptive not prescriptive, and then when her Honour recasts them she does so in prescriptive terms.

MR MYERS:   Quite so.  The natural meaning of the words I have asserted already, but it is a very odd way for the legislature to identify what subsection it is referring to.  It would simply say, if the application is under subsection, whatever it is, not use words such as are used if the purpose is to identify the subsection.  The more so because, ex hypothesi, in the case that her Honour is concerned with, the words that are chosen to describe the subsection describe something which has not happened.  It just has not happened.

KEANE J:   The natural reading of those provisions is, if A has happened, B may follow unless, and in this case proposition A had not happened.

MR MYERS:   That is right.

KEANE J:   So it does not go forward.  That is the natural meaning.  Is it really necessary to talk about jurisdiction in this context?  Is it not simply just whether the power has arisen?

MR MYERS:   The power.  With respect, I think I said this in the first few words I addressed the Court.  If one wants to use the word “jurisdiction” - it may be appropriate in relation to the warden but one is talking about the director, the registrar and so on, and the same word, “jurisdiction”, is used.  It is not the word one would naturally choose, in my respectful submission. 

GAGELER J:   You just refer to it as a condition precedent ‑ ‑ ‑

MR MYERS:   A condition precedent, yes.

GAGELER J:   ‑ ‑ ‑ to the exercise of power or the performance of a duty, or the exercise of jurisdiction as the case may be.

MR MYERS:   Correct, your Honour.  That is exactly how we put it and we have put it thus.  Now, the fourth reason her Honour identifies is what she describes as a flexible approach to non‑compliance.  I have said what I have said in relation to section 116(2) and I have referred to that passage in Yarri, which her Honour herself wrote.  But the notion that there is a flexible approach to non‑compliance is not evident in these provisions.  Section 74A is about as inflexible as one could manage to create by drafting.  It is not flexible at all.  It is very prescriptive.

BELL J:   I think her Honour had in mind there also, though,  75(6)(b).

MR MYERS:   Yes, she may have done and 76(6)(b) gives the Minister lots of powers but the Minister does not get to exercise those powers unless all preceding steps have occurred.  The flexibility is a flexibility given to a Minister ‑ that is understandable – but the Minister does not even have the power to be flexible unless the director has written the mineralisation report, which has to be based upon the accompanying - your Honours, they are the submissions on behalf of the appellant.

KIEFEL CJ:   Thank you, Mr Myers.  Mr Solicitor.

MR QUINLAN:   If it please the Court.  The Court will, I trust, have the supplementary outline of oral propositions that we have filed.  Can I, in some sense jump immediately to proposition 8 to put it in the context of what we say are the relevant issues?  In that context, can I say, as we pointed out in paragraph 5 that all of these provisions, section 74, 74A and 75, are directed to facilitating the exercise by the Minister of the Minister’s power under section 71 to grant a mining lease. 

As we have said in our submissions, we submit that there are statutory preconditions to the Minister’s granting a mining lease, as her Honour the President held in Yarri, and the statutory conditions are those reflected in section 71.  There must be an application and there must be a report from the warden.

The word “jurisdiction”, as we have said in paragraph 5, is inapt to describe, as it were, a number of aspects of the process that is prescribed by section 74.  As we have said, it is particularly inapt to describe the power or the duty of the Director, Geological Survey to prepare a report because, of course, the officers of the Department, and the Director is defined to be one, have the power to prepare reports generally and, indeed, the warden under regulation 68 can call for a report at any time from any person. 

The issue in the present case is not whether, for example, the person at the registry, or the Mining Registrar is not entitled to refuse to have an application go further if it is not accompanied with a mineralisation report.  My learned friend puts it, there is nothing unjust about not allowing an application to go ahead if the requirements of section 74(1) have not been complied with and, in our respectful submission, that is correct, that is, the question in this case is not whether at the point at which the application is being given the registrar has a duty to ignore or a licence to ignore the requirements of the Act, the question is whether at the point at which this particular case reached, the failure to have complied with the requirements of the Act was of a nature that it rendered invalid everything that had gone before so that the Minister did not have any power to grant a mining lease.

We say in paragraph 8 that that is to be seen in the context.  Generally speaking, it is to be expected that non‑compliance with the provisions of an Act such as this would be expected to occur inadvertently or as a result of error.  One does not hope – one hopes ‑ ‑ ‑

KEANE J:   But what if they do occur cynically?  I mean, I am sure that the good miners of Western Australia would not do this, but what about the miner who puts in an application that is half baked in order to hold things up?

MR QUINLAN:   In those circumstances, one would expect – perhaps not the good miners acting cynically but the good administrators administering the Act saying this is not a compliant application.  It is not going to go further.  So, that is the response to the, as it were, cynical action by the applicant.

KEANE J:   Apart from that, and I know the absence of a mining plan is not something which is of itself a matter of complaint in this case, but looking at the absence of a mining plan, because it is of the same consequence as the mineralisation report, one would imagine ‑ ‑ ‑

MR QUINLAN:   Yes.

KEANE J:   ‑ ‑ ‑ one notices that the landowner, the affected landowner, may not object on the basis that there is not significant mineralisation in or under the property.

MR QUINLAN:   Yes.

KEANE J:   But one takes it that it would be an objection open to a landowner to complain about the manner in which the mining plan may operate, to contend that the effect upon the landowner may be so deleterious that even if there is significant mineralisation it should not be allowed to proceed, that coal seam gas obtained by processes that exploit it destroy the land as farming land and the water table generally, so that the landowner may have something to say about the mining plan. 

The landowner is obliged to put in an objection – I think it is 21 days or 35 days after receiving the notice of the application under section 33.  The situation can arise if the provisions of 74 are not taken seriously, the position can arise where the objector, the landowner, with rights of objection, puts in an objection in accordance with its rights where they are never in a position to advert to the consequences of the mining plan upon their land.

MR QUINLAN:   Just so that I can understand the hypothesis ‑ ‑ ‑

KEANE J:   Because the landowner has to object within 21 or 35 days.  The landowner does that to the extent that it can.  Subsequently, the mining plan comes in and then the matter is determined by the warden and the grounds of objection never advert to the consequences of the mining plan for the landowner.

MR QUINLAN:   The scheme of the Act in relation to a mining plan or a mining proposal which is the alternative requirement is ultimately going to have to be before the warden.

KEANE J:   But when you have a regime that contemplates that landowners have a right to object, the idea is that the objectors make the decision‑making process better because the warden gets to hear both sides of the story.

MR QUINLAN:   Yes.

KEANE J:   If an applicant can essentially produce a situation where the grounds of objection that come before the warden do not address the exigencies of the mining corporation, that just seems to be devaluing the objection process or the objection right.

MR QUINLAN:   Save that ‑ the difficulty I am having with that is that the objector would not, once the mining plan is received, be able to address the issues that are in it, in terms of their objection.

KEANE J:   Well, that is the point; that is the very point.  The objector, the landowner cannot object that there is not significant mineralisation but, otherwise, surely the objector ought to be able to complain about the consequences of the grant, even allowing that there is significant mineralisation.

MR QUINLAN:   Yes, and ‑ ‑ ‑

KEANE J:   Yet, it will not.

MR QUINLAN:   The only thing I am having difficulty with is why it would not.  If the objector did not want mining to occur and had objections to the effect that it would have on the land, there is nothing to prevent the objector from making that objection and ‑ ‑ ‑

KEANE J:   Because its objection under the Act has to be in at a time that runs from the application ‑ ‑ ‑

MR QUINLAN:   Yes.

KEANE J:   ‑ ‑ ‑ and everything is fine if the application is accompanied by the documents required in (ca)(ii) or whatever.  If they are not accompanied by that, the objection goes in, in circumstances where the objector is complaining in the dark, as it were.

MR QUINLAN:   The Act, indeed, in relation to a mining proposal example, in fact does, in a sense, contemplate that the mining proposal may come in after the objection.  So there is no difficulty in terms of the ability to object in relation to that.  If I can just refer your Honour, for example, in relation to section 74(1)AA – the second subsection in section 74?  And, this is one of the matters that the Court of Appeal relied upon in concluding that “accompanied by” meant “contemporaneously with” is that where one is relying upon a mining proposal, that can come in after the application and the application is then regarded as having been lodged at the time of the application.  So, the Act already contemplates – in relation to that example ‑ ‑ ‑

KEANE J:   Why would one not read that as a strong indication that that is the one thing you can do not contemporaneously?  Why is not the strong indication there that the same course is not permissible in relation to 74(1)(ca)(ii)?

MR QUINLAN:   It does.  And, indeed, that is what the Court found.  It is not permissible under the Act to file the mineralisation report after the application.  There is no doubt, on the Court’s conclusion that is a breach of the Act, it is non‑compliant.  Those administering the Act – and now the Court has said that, properly acting – would not accept an application relying upon a mineralisation report where it is not accompanied by contemporaneously the mineralisation report.

The question is not whether or not the Act insists that that occurs, the question is whether – where there is a breach of that provision which by reason of error or inadvertence – the process has got to a recommendation of the mining warden, which is the point it got to in this case, that the entirety of the procedure that has been followed is void ab initio, including if the Minister grants the tenement, having received a recommendation from the warden, and in accordance with our learned friend’s construction of section 116, that is a purported grant and it is not a grant which gives the leaseholder an entitlement.

BELL J:   It does not give the leaseholder an entitlement but do you accept – as I understand Mr Myers’ submission – 116(2) does have work to do in favour of the person dealing with the lease?

MR QUINLAN:   It is not clear that is the consequence of the second part of 116.  I say that for this reason.  The way in which section 116 operates, in our respectful submission, is that the holder of the tenement – this is the first part of the provision – the tenement cannot be impeached or defeasible in the hands of the holder of the tenement by reason of any informality or irregularity, other than in the case of fraud.  So, the holder – the original holder of the tenement can have – there can be impeachment on the basis of fraud but on no other basis including, for example, the fact that the wrong fee was paid with the original application or the report was late, or whatever.

The effect of, for example, cases such as Frazer v Walker is that the subsequent dealer is even protected in a case of fraud, so that there is a greater protection for the subsequent dealer because the subsequent dealer does not have to ascertain the circumstances in which the registered holder became registered.

But, in our respectful submission, the first part of section 116(2) is intended to protect and would be intended to protect.  A case such as this, had nobody noticed or nobody raised the point about the mineralisation report, the Minister granted the tenement, the miner went onto the land, mined under the authority of the tenement, so that the landowner could not later come along and say well, we are bringing an action for trespass, you have come onto the land.  You cannot rely upon the rights of a leaseholder under the Act because this irregularity occurred at the very beginning which admittedly no one knew about but it is a statutory precondition which means that the entire process miscarried.

GAGELER J:   Can I just go back a step there?  You accept that the making of an application and the making of a report to the Minister by either the Mining Registrar or the warden are preconditions to the exercise of power by the Minister?

MR QUINLAN:   Yes.

GAGELER J:   So neither of those are informalities or irregularities within the meaning of section 116(2)?

MR QUINLAN:   Yes, that is the effect, in our respectful submission, of section 71.

GAGELER J:   So you accept the construction of section 116(2) that excludes from that expression “informality or irregularity” any condition precedent to the grant of the mining tenement in question.

MR QUINLAN:   It must do.

GAGELER J:   And your submission is that the timing referred to in section 74(1a)(ca) is not such a condition precedent.

MR QUINLAN:   Yes.  It is a breach, it is an irregularity.  One could not get an order for mandamus to compel the Mining Registrar to process an application.  It is in breach of the Act, but the question is not whether it is in breach of the Act – the Project Blue Sky question, if I can put it that way – that is, what is the effect of that having happened?

GAGELER J:   Are you aware of any authority other than that which we have been taken to on the meaning of section 116(2) or cognate provisions?

MR QUINLAN:   No, no, your Honour, and I think ‑ most of the cases in relation to – or the cases in the comparable context in relation to indefeasibility under the Torrens system such as Frazer v Walker and Breskvar v Wall are usually dealing with a subsequent dealer but it is an important feature of the Act in terms of the indefeasibility that once a person has a mining lease they have the confidence to be able to do the things which the mining lease enables them to do because it is the mining lease which, for example, enables entry on to the land and all of the things that section 85 of the Act which confers upon the holder of the mining lease the authority to do the things which would otherwise be a trespass to a landholder’s land.  Can I say that, in our respectful submission, the vice in our learned friend’s construction, if there be a vice, rests in section 116, that is the inconvenience of the process is not nearly as significant.

GAGELER J:   It does make the construction of the second half of section 116 rather significant to the resolution of the case because one could say as to the first half, well, if you want a mining lease, you as the first holder need to be very careful about following the statutory procedures.  It may well be different with the second holder of the mining lease.

MR QUINLAN:   Yes, I accept that.  It having arisen in the course of argument, we will endeavour to assist if we can find any other reference to it.

KIEFEL CJ:   In relation to the Minister’s power in your written submissions you rely on section 75(6).

MR QUINLAN:   Yes, indeed, your Honour, and can I say in this context and perhaps this is a way of identifying what we say about how the Act deals with non‑compliance and what her Honour the President described as a flexible approach to non‑compliance.  That is not a reference to whether or not section 74(1) is insistent in its terms that the fees be paid, et cetera, but it is a reference to the fact that the Act contemplates that there will be or that there may be non‑compliance with its terms and specifically addresses it.

Can I take your Honours - and I will come to section 75(6) in a moment but can I contrast it before I come to it with section 75(3)?  Your Honours will see that in the case of there being no objection, that is, if one starts with 75(2):

if no notice of objection is lodged within the prescribed time . . . the mining registrar shall . . . forward to the Minister a report which recommends the grant or refusal of the mining lease and sets out the reasons for that recommendation.

Your Honours will see in subsection (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.

That is an indication, for example, that if there is any non‑compliance with section 74 and there is no objection lodged, the Mining Registrar should recommend a refusal.

NETTLE J:   That is where Parisienne Basket Shoes informs ‑ ‑ ‑

MR QUINLAN:   Yes.  Subsection (4) - there is a certain irony in this case inasmuch as the matter which actually engages the jurisdiction of the warden is the objection by the objector, in this case the appellant.  The non‑compliance in the present case, had there not been an objection, would have required the Mining Registrar to recommend a refusal of the mining lease.

GAGELER J:   I am just trying to follow the structure here.  The recommendation in subsection (3) is the recommendation referred to in the report, in subsection (2), is it?

MR QUINLAN:   Yes.

GAGELER J:   Yet the report in subsection (2) cannot be given, says subsection (2a)(b) – well, says subsection (2a) – if not accompanied by the ‑ ‑ ‑

MR QUINLAN:   Yes.

GAGELER J:   So there is non‑compliance. 

MR QUINLAN:   I am talking about ‑ ‑ ‑ 

GAGELER J:   It goes around in circles.

MR QUINLAN:   Yes.  Well, it does not, because I am talking about non‑compliance more generally.  Non‑compliance in relation to section (2a), at that point the appellant, for example, in this case, would have been entitled, having been served the application, to say there has been a breach of the Act.  It was not accompanied by the documentation referred to in 74(1)(ca)(ii) and the Mining Registrar shall not - you shall not forward the application to the Minister.  That breach could be enforced by a remedy available to them, such as an injunction.  If, for example, the administrator proposed to defy that non‑compliance and provide it to the Minister ‑ ‑ ‑

GAGELER J:   On this view, the Minister does not get the report.

MR QUINLAN:   Does not get it.

GAGELER J:   Does not get the report saying you should refuse.

MR QUINLAN:   Yes, because there is ‑ ‑ ‑

GAGELER J:   It is very odd.

MR QUINLAN:   Or just does not get it – just does not get the application.  If it is caught at that stage, we accept that the application goes nowhere.  It must do on the construction of the Act.

GAGELER J:   This is the oddity.  It is not really against either side here, it is just very odd that the application, you both say, remains an application.  It is an application but it is a non‑compliant application.  What is the effect, in your submission, for the purpose of section 105A?  Is it an application that gets some sort of priority?

MR QUINLAN:   It would be, for example, in section 105A – it would get no priority in relation to those provisions for which the initial requirements of the lodging of the application.  Can I take Your Honours to section 105A for that purpose.

GAGELER J:   Strangely, we are dealing here with a 21st century mineralisation report and a 19th century pegging out.

MR QUINLAN:   Yes, yes, pegging outs and ballots and matters of that kind.  Section 105A, your Honours will see that it is the person who first complies with the initial requirement in relation to his application.  In subsection (4), the initial requirement may be different, depending upon the circumstances.  In some circumstances, it is the lodging of the application, and in the case of an exploration licence that is the case.  In the case of any of the other licences referred to in subsection (b), in subsection (ia), (ii) and (iii), it is also the lodging of the application.

Now, in the case that we hope got to the Court on a supplementary list, we referred to the decision of the Ex parte: Hot Holdings Pty Ltd and Hot Holdings Pty Ltd v Creasy 16 WAR 428. This is a sequel to the Hot Holdings v Creasy in this Court where it was dealing with the ballot which was held because, on that occasion, your Honours will see from the headnote, there were eight applications lodged within 51 seconds of each other and so there was a ballot held. 

In relation to ‑ and the initial requirements in that case were the filing of the application and the court held that in relation to two of the persons who had made the application, because one of the accompanying documents was not lodged with the application, as was required by section 58 of the Act, they had not complied with the initial requirements.  So, for example, if I can take your Honours to page 433, Chief Justice Malcolm, at the bottom of that page in the last paragraph:

I agree with Steytler J for the reasons he has expressed that Minerichie and Tromen failed to comply with the “initial requirement” in relation to their applications for the purposes of s 105A(3) because the statement which was required by s 58(1)(b) of the Act to accompany the application was not provided until some days after the forms of application had been lodged.

And the similar conclusion is reached by Justice Steytler on page 445.  So, in that particular example, because the failure to lodge strictly in accordance with section 58 had not been complied with, for the purposes of section 105, there had not been compliance with the initial requirements so they did not form part of the ballot.  So, that is one example where the Act requires a strict compliance.

And, likewise, where there is to be a recommendation of the Mining Registrar, where there is no objection, the Act requires strict compliance.  Where the Act does not require strict compliance is, in our respectful submission, at the very stage at which this matter reached, which was a report had been given by the warden and the matter was then sent to the Minister.

BELL J:   Just before we leave section 105A, can I just take up with you: section 105A(1) is concerned with the situation where more than one application is received for a mining tenement in respect of the same land and it then speaks of the applicant who first complies with the initial requirement in relation to his application.  And then one goes over to sub (4) to see what compliance with the initial requirement in relation to an application means.  Where does one pick up from sub (4) the holding in Ex parte Hot Holdings in relation to the construction of initial requirement?

MR QUINLAN:   That the initial requirement was the lodging of the application.

KIEFEL CJ:   Because it was an exploration licence?

MR QUINLAN:   Yes.  The lodging of the application ‑ ‑ ‑

BELL J:   I see, it was an exploration licence.

MR QUINLAN:   Yes, the lodging of the application in the prescribed manner.

BELL J:   Yes.  But where one has the lodging of an application for a mining lease, sub (4) takes you to the marking out of the land in the prescribed manner, does it?

MR QUINLAN:   Yes, or the other three alternatives.  So marking out may well be the initial requirement where those other subparagraphs do not apply.

GAGELER J:   I am just finding it very difficult to see that section 105A sheds any light on the issue in this case.

MR QUINLAN:   It does not shed any light in relation to the effect of non‑compliance here.  We just simply identify it as an example where non‑compliance may have an effect because the Act contemplates that non‑compliance in that particular circumstance has an effect.

GAGELER J:   In what particular circumstance?

MR QUINLAN:   In the circumstance in which there is ‑ ‑ ‑

GAGELER J:   An exploration licence.

MR QUINLAN:   ‑ ‑ ‑ a question as to whether or not each of the applicants who make simultaneous applications, because of course Hot Holdings v Creasy was one under subsection (3) where the initial requirements are all at the same time.

GAGELER J:   They were applications for exploration licences, which have to be lodged, and two of them were not lodged in the prescribed manner.

MR QUINLAN:   Yes.  So they were not lodged at the same time as the others.

GAGELER J:   Yes.

BELL J:   But in the context of the point that Mr Myers makes, if an application is lodged for a mining lease without a mineralisation report, nonetheless, the applicant might obtain priority under 105A as against a later applicant.

MR QUINLAN:   They would.  And, indeed, they get priority even if the application of the other applicant is filed before.  Because the way the priority works in section 105A, in relation to section 4(b)(i), is that the person who gets priority is not the person who gets their application in first.  It is the person who marks out the land first.

GAGELER J:   Pegs and string.

MR QUINLAN:   Pegs and puts strings and matters of that kind ‑ ‑ ‑

GAGELER J:   White chalk.

MR QUINLAN:   ‑ ‑ ‑ which are dealt with – yes, digs trenches.  They are all dealt with in the regulations.

BELL J:   Presumably one can obtain a mineralisation report before marking out the land.

MR QUINLAN:   Yes, or after.

BELL J:   Indeed.

MR QUINLAN:   So the way the application process works is, in relation to a matter of this kind where there is not already an area of land identified such as there is an existing tenement, is that under section 105, the person marks out the land and the marking out is dealt with – I will just give your Honours the references in the mining regulations.  Regulation 59 requires land to be marked out by, for example, fixing a post one metre above the ground at each corner of the area and digging identifiable trenches one metre long from each post, that kind of thing.

Then the application for the mining tenement – this is under regulation 64 – is required to be lodged after the marking out; either 10 days after or on an extension.  So that an application for a mining lease which must be marked out – not all of them do but many will – the process is the marking out occurs first, then the application is lodged.  The application may be lodged which is ordinarily required to be lodged 10 days after the marking out but that time may be extended.

GAGELER J:   Is that timing part of the prescribed manner for lodging an application that is referred to in section 74(1)(d)?

MR QUINLAN:   Yes, it would be.

GAGELER J:   I am just wondering where the regulation fits within the scheme of the Act.

MR QUINLAN:   Yes, it would be, yes.  But the important point about the priority that is reflected in section 105A in relation to a mining tenement, the importance of the reference to the marking out in the prescribed manner is that whoever is on the ground and marks it out first has priority even if their application comes in after another applicant.  Two persons mark out the land, one after the other.  If the second person to mark out the land puts the application in first and another applicant puts the application in second, the second application has priority.

BELL J:   So your contention is there is no substance to the suggestion that an application lodged prematurely without a mineralisation report might gain priority.

MR QUINLAN:   It could have no effect in a case of marking out, it could have no effect.  But in a case where the lodging of the application is necessary for gaining priority, the failure to provide the mineralisation report will deprive it of having complied with the initial requirements.  So in either case ‑ ‑ ‑

KEANE J:   But, where you have two potential applicants, both make an application, the one who marks out first gets priority even if that person is not in a position to provide a mineralisation report or a plan of operation.  So the vice Mr Myers suggests that arises, does arise.  The mischief that he suggests may arise does arise. 

MR QUINLAN:   It may do but it is difficult to conceive that that would have any practical result.

KEANE J:   Well, if you are minded – if you are an applicant who is minded to do this, you might make an application and mark out – even though you do not have an actual mineralisation report or a plan to mine, the conscientious applicant who gets his house in order first misses out, in terms of priority.

MR QUINLAN:   Save that the other applicant – if they ultimately do not provide any of the information would not have their application progressed.

KEANE J:   At some time in God’s good time.

MR QUINLAN:   Yes.  One would hope that if that kind of cynical – the Act, for example, the Minister may summarily terminate such an application under section 111A.  There are mechanisms for, under the Act, and section 111A is one, where the Minister may consider it is in the public interest that the application should not be granted and can terminate an application summarily.  So there are mechanisms for dealing with that kind of, what I might call cynical non‑compliance. 

The real question in this case is what happens in a case of non‑compliance through inadvertence or error which then gets to the stage of, we reached here where there was a recommendation.  It is in that context – and that is the only context with which this case is dealing – which, in our respectful submission, we reached because section 75(6), which is the point of the report from the warden where:

the Minister may . . . grant or refuse the mining lease . . . whether –

. . . 

(b) the applicant has . . . complied in all respects with the provisions of this Act.

KEANE J:   Mr Solicitor, can I just ask – because I am not quite clear – 75(3), does that only apply where there is no notice of objection?

MR QUINLAN:   Yes.

KEANE J:   This is a case where there was an objection?

MR QUINLAN:   Yes.  There was an objection which then engaged the warden, the warden’s jurisdiction.

KEANE J:   Right.

NETTLE J:   Mr Solicitor, can I just ask - this practice, the cynical practice that Justice Keane asked about, is that the practice of land banking that is referred to in the second reading speech?

MR QUINLAN:   The practice of land banking is one where there are applications with no intention to mine, to hold on to tenements with no intention to mine, just to maintain, as it were, the asset in the event that economic conditions change or matters of that kind.

GAGELER J:   That would all be marked out in advance?

MR QUINLAN:   Yes.  So, the object of these provisions is to ensure that mining leases are only granted where there is significant mineralisation on the tenement so that the resource is exploited, as opposed to simply having a mining lease, paying the minimum rent and keeping that land in the control of the tenement holder until such time as their preferences change. 

Can I, just to complete the submissions - and I think I have reached the end of the points that we seek to raise - ask the Court to go to Project Blue Sky v Australian Broadcasting Authority 194 CLR 355 to make two points that arise out of the case and in some respects to make good the distinction I have been endeavouring to draw. In the joint judgment of their Honours Justice McHugh, Gummow, Kirby and Hayne at page 393, this is after their Honours have concluded in paragraph 99 that the correct interpretation of the provision in that case is that:

while it imposes a legal duty on the ABA, an act done in breach of its provisions is not invalid.

Importantly, their Honours go on in paragraph 100:

In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA.  Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful.  Failure to comply with a directory provision “may in particular cases be punishable”.  That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.

Their Honours, indeed, in that case, declared that the relevant standard was unlawfully made.  The distinction between that and the finding of invalidity and one of the reasons that their Honours reached the conclusion ‑ the construction that they did in relation to 160 can be seen on the previous page at paragraphs 97 and 98.  This raises what our learned friends described in our submissions as being the consequentialist approach that is reflected in the Parisienne Baskets Case that my learned friend took your Honours to:

Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act. 

One of the matters that their Honours refer to in paragraph 98 in relation to the functions of the ABA are the allocation and renewal of licences and if one looks at the bottom of paragraph 98:

In many cases, licensees would have great difficulty in ascertaining whether the ABA was acting consistently with the obligations imposed by s 160.  Expense, inconvenience and loss of investor confidence must be regarded as real possibilities if acts done in breach of s 160 are invalid.

Which is why, again, we stress that the vice, if there be a vice, in the construction which our friend has put forward is the conclusion that the contemporaneous lodgment of the mineralisation report is a statutory precondition in the sense that nothing which follows it can be regarded as resulting in a valid grant of a lease at the end of the process.

GAGELER J:   Mr Solicitor, can I just go back to one aspect of the submissions?  I think I have probably asked the question several different ways.  You say that this is a case of inadvertent error, at least on the part of the officials involved.

MR QUINLAN:   Yes.

GAGELER J:   And that is all I am asking.  So you have a non‑compliant application in the sense that the mineralisation report does not accompany the application.

MR QUINLAN:   Yes.

GAGELER J:   Then, if all of the officials are advertent to their duties, what happens?

MR QUINLAN:   If you have a non‑compliant application?

GAGELER J:   Correct.  And if everybody who has a duty, power or jurisdiction under the Act is aware of that, what happens?

MR QUINLAN:   In those circumstances the official performing their duty would say to the applicant, “This is a non‑compliant application.” 

GAGELER J:   And?

MR QUINLAN:   It will not go any further.  There is no right of a non‑compliant applicant to insist on their application going through on the basis that, well, the Minister can ignore this at the end ‑ ‑ ‑

GAGELER J:   Okay, so it goes nowhere?  It is a non‑compliant application.  Let us go back to 105A.  Does it have priority?

MR QUINLAN:   It does not have priority ‑ ‑ ‑

GAGELER J:   In a “marking out” case?

MR QUINLAN:   ‑ ‑ ‑ in a “marking out” case.  Well, I think that in giving a properly purposive construction of section 105A I think I would be compelled to say that it would not have priority, but certainly it is easy to say that in relation to those where the initial requirement is the application.

GAGELER J:   Absolutely.

MR QUINLAN:   The “marking out” causes a difficulty of construction in reconciling that, but that difficulty arises regardless of the outcome in this case, in my respectful submission, because non‑compliant applications might arise for any number of reasons.  There may be a variety of reasons consistent with what can be at times rather technical and prescriptive requirements of the Act which will render the application irregular in some form, and in those cases I accept that difficult questions would have to arise in complying with section 105A that arose.  Unless there is anything ‑ ‑ ‑

KEANE J:   Where you have the officials who are advertent to the non‑compliance and yet the thing goes on, in terms of the approach in Blue Sky, are there consequences?  In Blue Sky it was said, well, non‑compliance might not render invalid but it has consequences.  Here, if non‑compliance – particularly advertent non‑compliance – it does not have any consequences.

MR QUINLAN:   It may do, in certain circumstances.  It would have a consequence for the purposes of section 75(3), for example, in terms of whether ‑ ‑ ‑

KEANE J:   But that is not this case because this is a case where there was an objection.

MR QUINLAN:   Yes.

KEANE J:   But it has no consequences.  There is this perfectly good Act, people advert to its provisions and advert to its non‑compliance and it does not matter at all.

MR QUINLAN:   Well, that is why I endeavoured to say that a construction to the effect that non‑compliance does not render invalid the processes should not be taken to be a licence to ignore the requirements of the Act.

KEANE J:   No.

MR QUINLAN:   Just as the ABA, the Australian Broadcasting Authority, were not by the operation of that given a licence to ignore section 160.

GAGELER J:   Well, you would say, even on your construction, Mr Myers’ client could have moved a little earlier for prohibition ‑ ‑ ‑

MR QUINLAN:   Yes.

GAGELER J:   ‑ ‑ ‑ and would have been successful.

MR QUINLAN:   Yes, that is why so much depends upon the point at which the statutory process is reached and why – and perhaps I will, unless there are any further questions, end where I began to say the real vice if there be a vice is in the effect upon the importance of the certainty of the lease that is granted at the end of that process.  If your Honours please, those are our submissions.

KIEFEL CJ:   Do you having anything in reply, Mr Myers?

MR MYERS:   Yes, with your Honours’ leave, and I promise I will not say a single thing about section 105A.  Your Honour Justice Nettle is correct in identifying that reference in the second reading speech, the land banking, and we refer to it in paragraph 47(c) of our written submissions. 

Since I sat down, I have had the opportunity to look at the authorities which are mentioned in footnote 18 to paragraph 67 of our written submissions and one of those authorities – and I will just have to give your Honours the reference – is Hunter Resources Ltd v Melville, which is - the citation is in the footnote.  It was a majority decision and a member of the majority was Justice Toohey and on the last page of the report at

page 259, if I can ask your Honours to be good enough to note, his Honour Justice Toohey deals with section 116(2) and he says about halfway down that page - your Honours will easily see it:

There is no section corresponding with the Torrens System provision whereby the registered proprietor holds free of any unregistered interest other than those expressly mentioned in the section . . . It should not be assumed therefore that registration of the original grant cures any defects in the application leading to the grant.  But it is unnecessary to express a view on that matter.

Then this sentence:

Clearly enough, a person dealing with the registered holder will, in the absence of fraud, obtain the protection of s. 116. 

That is the proposition I was putting and I could not refer to any authority for it.  If your Honours please, they are the submissions.

KIEFEL CJ:   Yes, thank you, Mr Myers.  The Court reserves its decision in this matter and adjourns to 10.15 am on Tuesday, 4 April.

AT 11.43 AM THE MATTER WAS ADJOURNED