Forster v The King - [1912] HCA 79

THE CROWN

RESPONDENT. RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF Lease-Gold mining-Non-compliance - with labour onditions-Forfeiture-Pro- -

cedure-Declaration by Governor in Council-Mining Act 1904 (W.A.) (No. 15 of 1904), 86C8. 79, 96, 97, 99-107.

Sec. 96 of the Mining Act 1904 provides that, except in two cases-that is, where there is a breach of covenant relating to labour, or to inspection of the mine or the working thereof-notice is to be given to the lessee before forfei- ture of a mining lease for a breach of covenant.

Sec. 97 enacts - " In case any lease shall be liable to voidance, cancella- tion, or forfeiture for breach of covenant or otherwise, the Governor may, subject to the provisions of this Act, declare such lease void, and upon publication in the Government Gazette of notice of such declaration all the

Sec. 99 provides that any miner on giving notice to the Warden that any land held under a mining lease is not being worked in accordance with the regulations, may apply for a forfeiture of the lease, and requires notice of the application to be given to the lessee, who may file an answer. Secs. 100- 102 contain provisions relating to proceedings upon such application in the Warden's Court; and sec. 103 provides that after the hearing the Warden is to forward a report to the Minister with his notes of evidence and a recom- mendation (if any) on the case. Under sec. 104 the Governor may, if he thinks fit, declare the lease forfeited, and by sec. 105 it is provided that on such forfeiture the Governor may grant a prior right of possession to the applicant.

15 CLR 566

Sec. 107 is as follows: No lease shall be forfeited on the ground that the labour conditions have not been complied with if the lessee satisfies the Warden in open Court that he has been unable to comply with such con- ditions in consequence of a general strike among the persons engaged in mining in the district."

There having been a breach of a covenant to perform certain labour con- ditions in a mining lease which was held subject to the above Act, a plaint was lodged in the Warden's Court praying for forfeiture of the lease on the ground of the failure by the lessees to comply with such conditions, but the lessees were not served with the plaint or any notice thereof. Subsequently a notice was published in the Government Gazette that the Governor in Council had been pleased to declare the lease "forfeited for breach of covenant and void, and to grant no prior right under sec. 105 of the Act."

Held, per totam curiam, that the lease was properly forfeited. Per Griffith C.J. and Barton J.-The exercise of the Governor's power of forfeiture is not confined to a proceeding upon complaint under sec. 99:

Sec. 96, by implication, declares notice before forfeiture unnecessary in the case of a breach of covenant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Forster v The King

Details

AGLC: Forster v The King [1912] HCA 79
Case: [1912] HCA 79
Decision Date: 11 November 1912

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from the Supreme Court of Western Australia regarding the forfeiture of a gold mining lease. The appellant, Phoebe Blanche Forster, held shares in a lease granted under the *Mining Act 1895* (W.A.), which was subsequently subject to the *Mining Act 1904* (W.A.). The dispute arose when the lease was declared forfeited by the Governor in Council for breach of labour conditions, without the appellant being served with notice of any proceedings.

The central legal issues before the High Court were whether the forfeiture of the lease was lawful, particularly in light of the procedural requirements stipulated in the *Mining Act 1904*. Specifically, the Court had to determine the interplay between section 97, which grants the Governor power to declare a lease void, and other sections of the Act, including section 96 (notice requirements for certain breaches), section 99 et seq. (proceedings initiated by a miner for forfeiture), and section 107 (exemption from forfeiture due to a general strike). The appellant argued that the forfeiture was invalid due to a lack of notice and procedural irregularities, while the respondent contended that the forfeiture was validly exercised under the Governor's executive power.

The High Court, by majority, held that the lease was properly forfeited. Griffith C.J. and Barton J. reasoned that section 96 impliedly dispensed with notice for breaches of labour conditions, and that the Governor's power under section 97 was not confined to proceedings initiated under section 99. They further concluded that section 107, concerning general strikes, applied only to proceedings commenced under section 99 and not to a forfeiture declared directly by the Governor under section 97. Higgins J. concurred on the ground that the appellant had not alleged inability to comply with labour conditions due to a general strike, as contemplated by section 107. However, he also expressed the view that section 107, by its language, applied to all forfeitures for non-compliance with labour conditions, implying a right for the lessee to demand an inquiry before the Warden in such circumstances.

The appeal was dismissed with costs.

Orders