Freeth as Executor of the Estate of Gerard V Brewer v O'Donnell

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   FREETH AS EXECUTOR OF THE ESTATE OF GERARD V BREWER -v- O'DONNELL [2021] WASC 393
CORAM:   TOTTLE J
HEARD:   5 OCTOBER 2021
DELIVERED          :   11 NOVEMBER 2021
FILE NO/S:   CIV 1260 of 2021
BETWEEN:   STEWART ROSS FREETH AS EXECUTOR OF THE EST OF GERARD V BREWER
Applicant
AND
THE HON ERIN O'DONNELL
Respondent
NICHOLAS PAUL CUKELA
Other Party

Catchwords:

Mining law - Judicial review - Construction of the Mining Act 1978 (WA) and the Mining Regulations 1981 (WA) - Forfeiture application in respect of mining tenement registered in the name of an individual who has died when application commenced is a nullity - Mining warden erred by refusing to dismiss applications for forfeiture of mining tenements - Application granted

Legislation:

Acts Amendment (Mining) Act 1981 (WA)
Corporations Act 2001 (Cth), s 471B
Criminal Property Confiscation Act 2000 (WA)
Interpretation Act 1984 (WA), s 5
Mining Act 1978 (WA), s 40(1), s 42, s 48, s 50, s 56, s 57(1), s 59, s 62, s 63A, s 63A(b), s 94(3), s94(4), s 96, s 96A, s 98, s 98, s 99, s 100, s 101(2), s 162B
Mining Regulations 1981 (WA) reg 15, reg 21, reg 48, reg 49, reg 50, reg 102, reg 123, reg 124, reg 125, reg 126
Public Trustee Act 1941 (WA), s 9

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant	:	D Chandler
Respondent	:	No Appearance
Other Party	:	TC Russell

Solicitors:

Applicant	:	Lawton Macmaster Legal
Respondent	:	No Appearance
Other Party	:	Granich Partners

Case(s) referred to in decision(s):

CCM Holdings Trust Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 1072
Centurion Trust Co Ltd v Director of Public Prosecutions [2008] WASCA 6; (2008) 35 WAR 463
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Commissioner of State Revenue v Abbots Exploration Pty Ltd [2014] WASCA 211; (2014) 48 WAR 300
Commonwealth of Australia v State of Western Australia [1999] HCA 5; (1999) 196 CLR 392
Cukela v Brewer [2020] WAMW 18
Deveigne v Askar [2007] NSWCA 45; (2007) 69 NSWLR 327
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503
Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310
Mohammadi v Bethune [2018] WASCA 98
Nova Resources NL v French (1995) 12 WAR 50
O'Connell v Nixon [2007] VSCA 131; (2007) 16 VR 440
Ratcliffe v Peric & Wolski [2020] WAMW 1
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; [2010] 241 CLR 252
Taylor v Owners of Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531
The Wik Peoples v The State of Queensland (1994) 49 FCR 1

TOTTLE J:

The applicant, Mr Freeth, has applied for judicial review of a decision of the respondent, a mining warden, refusing to dismiss applications for forfeiture of various mining tenements brought by the Other Party, Mr Cukela.[1] Mr Freeth argues that the forfeiture applications were nullities because when they were made, Mr Gerard Brewer, the individual named as the respondent to the applications and the registered holder of the tenements, was no longer alive. Mr Freeth is the executor of Mr Brewer's estate and is now the registered holder of the tenements.
[1] Cukela v Brewer [2020] WAMW 18 (the primary reasons) - a notice of intention to abide was filed on the warden's behalf.
The application concerns the power of a mining warden to determine an application for forfeiture of a prospecting licence under s 96 of the Mining Act 1978 (WA) (the Act), and the power of a mining warden and Minister to determine an application for forfeiture of an exploration licence under s 98 of the Act. The issue is whether these powers may be exercised if the application is made in respect of a mining tenement registered in the name of an individual who is no longer alive when the application is made.[2] The resolution of the issue turns on the construction of the Act and the regulations made under it, the Mining Regulations 1981 (WA) (the Regulations).
[2] In these reasons I use the term 'individual' in the manner it is defined in s 5 of the Interpretation Act 1984 (WA), that is, as meaning a natural person.

The facts

The following account is derived from the affidavits read into evidence by the parties.[3]
[3] The applicant read two affidavits sworn by his solicitor Mr Garry Lawton on 24 May 2021 and 4 October 2021 and Mr Cukela read an affidavit sworn by his solicitor, Ms Jennifer Woodford on 10 June 2021.
Mr Brewer was the registered holder of eleven prospecting licences and one exploration licence granted under the Act. Particulars of the tenements and various relevant details were set out in an annexure to the primary reasons.
On 28 June 2018 Mr Brewer died.
On 4 July 2018 applications for forfeiture in respect of three of the prospecting licences (P31/2102, P31/2100 and P31/2099) and in respect of the exploration licence (E31/1127) were lodged.
On 19 July 2018 applications for forfeiture of the other eight prospecting licences were made. The applications were based on allegations that Mr Brewer had failed to comply with the expenditure conditions during each expenditure year. Each application was made using a form 35A being the form prescribed by reg 140. The four applications lodged on 4 July 2018 were endorsed with a 'mention date' of 5 October 2018. No mention date was endorsed on the applications lodged on 19 July 2018.
On 5 October 2018 Mr Freeth was granted probate in respect of Mr Brewer's estate.
On 20 and 21 August 2019 Mr Freeth was registered as the holder of the tenements.
On 4 May 2020 Mr Freeth applied for dismissal of the forfeiture applications.

Relevant legislative provisions

There was no controversy about the relevant provisions of the Act and the following synopsis draws heavily on the outline contained in the written submissions filed on Mr Cukela's behalf.
Part IV of the Act provides for the grant of mining tenements, including prospecting licences (div 1) and exploration licences (div 2).
Different regimes for grant are provided for depending upon the mining tenement applied for.
In the case of a prospecting licence, the decision is made by a mining registrar or warden (s 40(1) and s 42), subject to a right of appeal to the Minister against a refusal or a grant on unreasonable conditions, s 56, s 94(3) and s 94(4).
In the case of an application for an exploration licence, the application comes first before a mining registrar (when there is no objection) or a mining warden (when there is an objection). The registrar or warden, as the case may be, makes a recommendation to the Minister, who decides the application, s 57(1), s 59(2), s 59(4) - (6).
The rights conferred by a prospecting licence are specified in s 48 and include: the right to enter upon land for the purposes of prospecting for minerals with employees, vehicles, machinery and equipment as may be necessary for prospecting or expedient for the purpose of prospecting; the right to carry on operations and works necessary for prospecting; the right to excavate, extract or remove, earth, soil, rock, stone, fluid or mineral bearing substances subject to prescribed limits; and certain rights in respect of water.
The rights conferred by an exploration licence are specified in s 66 in similar terms to a prospecting licence except that the rights are conferred for the purpose of exploring for minerals.
A prospecting licence and an exploration licence are each granted subject to expenditure conditions, s 50 and s 62.
The term 'expenditure conditions' is defined to mean prescribed conditions that require the expenditure of money on or in connection with a mining tenement or mining operations either carried out or proposed to be carried out. The relevant expenditure conditions are prescribed by reg 15 (prospecting licences) and reg 21 (exploration licences).
Section 63A sets out the circumstances in which an exploration licence is liable to forfeiture. These circumstances include a failure to comply with the expenditure conditions, s 63A(b).
Sections 96 allow for forfeiture of prospecting licences and miscellaneous licences. Section 96(1) provides:
(1)The warden may upon the application of —
(a)the Minister or any mining registrar or other officer of the Department authorised by the Minister in writing in that behalf; or
(b)any person,
made in the prescribed form and in the prescribed manner, make an order for the forfeiture of any prospecting licence or a miscellaneous licence granted or acquired under this Act or by virtue of the repealed Act.
Section 96(2) sets out the grounds on which an application under s 96(1) may be made. These include non-compliance with expenditure conditions. Section 96(2a) imposes a time limit for the bringing of applications under s 96(1)(b), it provides:
(2a)An application for forfeiture under subsection (1)(b) and made in respect of the expenditure conditions applicable to the mining tenement shall be made during the expenditure year in relation to which the requirement is not complied with or within 8 months thereafter, and not otherwise.
An order for forfeiture cannot be made under s 96 unless the warden is satisfied that the requirements of the Act in relation to the mining tenement have not been complied with in a material respect and that the matter is of sufficient gravity to justify the forfeiture of the mining tenement, s 96(2).
On an application under s 96 the warden, as the warden thinks fit in the circumstances of the case, as an alternative to making an order for forfeiture, may impose a penalty of up to $10,000 in a case where the expenditure conditions have not been met and, in any other case, impose a penalty not exceeding $75,000 if the holder is an individual, or $150,000 if the holder is a body corporate, award the whole or any part of the penalty to the applicant for forfeiture or impose no penalty, s 96(3).
Section 96(4) confers a right of priority on certain applicants when an order for forfeiture of a mining tenement is made - it states:
(4)Where an order for the forfeiture of a mining tenement is made under this section, if the applicant therefore was not the Minister, a mining registrar or an officer authorised in writing by the Minister, such applicant shall have, for a period of 14 days after the date of the order, a right in priority to any other person to mark out or apply for, or both, a mining tenement upon the whole or part of the land that was the subject thereof.
Section 96A provides that the Minister may declare an exploration licence to be forfeited in certain circumstances more particularly described in the section. Section 96A is not relevant to the issues raised by this application and no further reference to it is required.
Section 98 is concerned with applications by any person for forfeiture of exploration licences and mining leases when there is non‑compliance with the expenditure conditions. Sections 98(1) and (2) provide:
(1)Where the requirements of this Act are not being complied with in respect of the expenditure conditions applicable to an exploration licence or a mining lease, any person may apply for the forfeiture of such licence or lease as provided in this section.
(2)An application for forfeiture under this section shall be made, during the expenditure year in relation to which the requirement is not complied with or within 8 months thereafter, in such form and manner as may be prescribed and shall be accompanied by the prescribed fee.
On an application brought under s 98 the warden may recommend forfeiture of the relevant mining lease or exploration licence, impose a penalty of up to $10,000 or dismiss the application, s 98(4A). The warden cannot make any such recommendation unless the warden is satisfied that the tenement holder’s non‑compliance with the expenditure conditions applicable to the mining lease or exploration licence is 'in the circumstances of the case, of sufficient gravity to justify the forfeiture', s 98(5).
After receiving the recommendation of the warden in accordance with s 98 the Minister may declare the exploration licence or the mining lease forfeited, impose a penalty not exceeding $10,000 as an alternative to forfeiture, award the whole amount of the penalty to the applicant for forfeiture or determine not to forfeit the exploration licence or mining lease or impose any penalty, s 99(1).
Where an exploration licence or mining lease is forfeited pursuant to s 99, the applicant for forfeiture has, for a period of 14 days following publication of the notice of forfeiture, a right in priority to mark out or apply for a mining tenement over the whole or part of the land the subject of the forfeited tenement, s 100(2).
The Act deals expressly with applications under s 96 or s 98 for the forfeiture of a mining tenement for breach of the prescribed expenditure conditions while the holder of the tenement is a company in respect of which a winding up order has been made, or a provisional liquidator appointed, under the Corporations Act2001 (Cth). Section 101(2) provides, in effect, that such applications are excluded from the operation of s 471B of the Corporations Act which provides that a person cannot begin or proceed with a proceeding in a court against the company or in relation to the property of the company or begin or proceed with any enforcement process in relation to such property without the leave of the court.
Section 162B provides for extensions of prescribed periods or time - it states:
162BExtension of prescribed period or time
(1)If this Act provides for something to be done within a prescribed period or a prescribed time, the Minister or a warden may, in a particular case, extend the period or the time for doing the thing.
(2)The power in subsection (1) may be exercised whether or not the prescribed period has ended or the prescribed time has passed.
The Act does not contain any provision addressing the consequences that follow from the death of an individual who holds a mining tenement, however, reg 102 provides:
(1)On the death, bankruptcy, insanity or liquidation of the holder of, or applicant for, a mining tenement, his legal personal representative, receiver, trustee or a liquidator in whom the property of the company of which he is liquidator has been vested, as the case may be, may lodge a devolution in the form of Form 28 with the prescribed fee and an attested or certified copy of the document under which he derives his title.
(2)The death, bankruptcy, insanity or liquidation of the holder of a mining tenement shall be a reason for exemption pursuant to section 102(3) of the Act.

Summary of the warden's reasons

Relevantly, the warden's reasons started with the proposition that a person who has died has no legal persona and that, as a consequence, the general rule is that proceedings brought against a person who died before the proceedings were commenced are a nullity.[4] Her Honour referred to the decision of the New South Wales Court of Appeal in Deveigne v Askar,[5] and to the detailed discussion by McColl JA (with whom Hodgson JA agreed) of the authorities supporting the proposition that proceedings, naming a person who has died as a sole defendant are a nullity.[6]
[4] Primary reasons [13].
[5] Deveigne v Askar [2007] NSWCA 45; (2007) 69 NSWLR 327.
[6] Deveigne v Askar [104] - [126].
The warden referred also to the decision of Warden Ayling in Ratcliffe v Peric & Wolski,[7] in which Warden Ayling had relied on the reasoning in Deveigne v Askar to hold that applications for forfeiture of two mining leases made some two weeks after the registered holder of the tenements had died were nullities.[8]
[7] Ratcliffe v Peric & Wolski [2020] WAMW 1.
[8] Primary reasons [8].
The warden observed that s 9 of the Public Trustee Act 1941 (WA) provides that upon the death of any person, and until probate or administration is granted in respect of the deceased's estate, the deceased's real and personal estate vests in the Public Trustee.[9] Her Honour noted the authorities in which it has been held that, notwithstanding s 9 of the Public Trustee Act, the Public Trustee should not be joined as a defendant or respondent to proceedings as the representative of the deceased estate pending the grant of probate or administration.
[9] Primary reasons [18].
The warden referred to the statutory scheme and to the nature of proceedings under Part IV of the Act.[10] Her Honour noted that applications for forfeiture formed part of the industry self‑regulation policy enshrined in the Act.
[10] Primary reasons [24] – [29].
The warden identified that a proceeding brought in rem is an exception to the requirement for a defendant with a legal persona.[11] Her Honour referred to the judgment of McLure JA (with whom Buss JA agreed) in Centurion Trust Co Ltd v Director of Public Prosecutions of Western Australia,[12] in which McLure JA held that an application for a freezing order under the Criminal Property Confiscation Ac 2000 (WA) was a proceeding in rem and that the court's jurisdiction to make a freezing order was dependent on the existence of property within the territorial limits of Western Australia and not on service either of the originating process or the freezing orders.
[11] Primary reasons [30].
[12] Centurion Trust Co Ltd v Director of Public Prosecutions [2008] WASCA 6; (2008) 35 WAR 463.
The warden referred to the four criteria of a judgment in rem identified by Drummond J in The Wik Peoples v The State of Queensland [13] and applied them to applications for forfeiture as follows:[14]
36.Applying the criteria set out in The Wik Peoples, supra, to applications for forfeiture:
a.The location of the mining tenement, the subject of any order or recommendation for forfeiture, is within the control of the State of Western Australia, under whose authority the warden sits. The land which forms part of the tenement is located within the territory of that State.
b.A decision to forfeit a tenement (P) or recommend forfeiture (E) is a decision as to the status or disposition of that tenement. It affects the 'res' in the way of forfeiture (or recommendation thereof) - or, indeed, lack of forfeiture in which case the licence remains. The decision is not incidental to an otherwise in personam decision - the determination is all about the status of the tenement.
c.A warden's decision upon an application for forfeiture is given in the exercise of a jurisdiction to determine the status or disposition of the tenement in question, where such jurisdiction is conferred on the warden by the authority of the State via the Act and the Regulations. The Act confers jurisdiction on the warden in the exercise of his or her administrative functions for the specific purpose of determining the status or disposition of property of the kind in question in the proceedings.
d.Provided the warden acts within his or her jurisdiction in determining the application, the fourth criterion is met.
[13] The Wik Peoples v The State of Queensland (1994) 49 FCR 1, 4 - 5.
[14] Primary reasons [36].
The warden then set out her conclusions on whether an application for forfeiture was to be treated as an application in rem:[15]
The consequences of a determination upon an application for forfeiture (for example, a successful applicant's priority to mark out the area) are a function of the legislation and not of the order or recommendation of the warden.
Although the warden is acting in the exercise of his or her administrative functions when considering an application for forfeiture, much of what the warden does has a judicial character. Having regard to the foregoing authorities and considering the statutory scheme of the Act and the Regulations, it is apparent to me that the nature of the forfeiture application itself, as well as the warden's decision or recommendation as to the status of the tenement, are both in rem.
I have considered whether the fact that the warden may impose a penalty alters the nature of the application and/or judgment from in rem to in personam. In my view, it does not. The imposition of a penalty is a discretionary incident to a decision to maintain the status quo in relation to the res - i.e., the tenement - in question.
Consequently, service of an application upon a deceased respondent does not nullify proceedings.
[15] Primary reasons [37] - [40].

Having concluded that an application for forfeiture was an application in rem the warden considered some practical aspects of the procedures that might be followed by applications made in respect of tenements registered in the names of individuals who have died. In the course of this consideration the warden said:[16]
As Warden Ayling pointed out in Ratcliffe, a situation (albeit unlikely) may be imagined in which an application for forfeiture is commenced against a deceased person and nobody comes forward as a potentially interested person. In that scenario, the application would proceed with no respondent and default determination pursuant to regulation 139 would likely follow.
[16] Primary reasons [55].

A summary of the opposing arguments

There was no dispute about the warden's summary of the general principles applicable to proceedings, naming as a defendant or respondent, an individual who has died.
In his submissions Mr Freeth emphasised that prospecting licences and exploration licences grant rights, and impose obligations, which are personal to the holder of the tenement and that they do not give the tenement holder an interest in the land. He contended that because a forfeiture application arose out of a failure, or alleged failure, by a tenement holder to meet those personal obligations and, if successful did not result, in the applicant being awarded the tenement, but merely a right in priority to apply for a new tenement over the same land, the application should be regarded as in personam in nature. Mr Freeth argued this conclusion was reinforced by the discretion given to the warden to impose a pecuniary penalty.
Mr Cukela's submissions drew attention to one of the objects of the Act, that is, if a tenement holder is unable or unwilling to explore or exploit the mineral resources of a tenement, the holder should give way to someone who would do so. Mr Cukela argued forfeiture applications were one method of achieving this statutory object. Mr Cukela submitted that the focus of the language used in s 96 and s 98 was the forfeiture of the prospecting licence and exploration licence respectively and this focus made it plain that the nature of the application was that it was 'in rem'. Mr Cukela submitted that the procedure prescribed by the Regulations for service of an application for forfeiture on the holder of the tenement was to provide procedural fairness but that the authority to determine the application was not conditioned by service.
Mr Cukela submitted that the correct respondent to an application for forfeiture was the registered holder of the tenement and that was so even if the registered holder was an individual who had died before the application was made. He argued that adopting this approach preserved the capacity for third parties to make forfeiture applications within the time limits specified under s 96 and s 98. Treating applications for forfeiture that named individuals as respondents who had died as nullities had the capacity to frustrate forfeiture applications and thus an important object of the Act. Mr Cukela argued that the requirements of natural justice could be observed by a warden adjourning an application for forfeiture that named as a respondent a tenement holder who had died until probate or administration of the tenement holder's estate had been obtained and the tenement had devolved in accordance with the procedure specified in reg 102(1).

Disposition

I have concluded that the forfeiture applications were nullities. My reasons are as follows.
The framework for analysis is provided by the principles of statutory construction.[17] Those principles require attention to the text of the statute, context, the statutory purpose and the need for coherence. That is, the provision must be construed in a manner which is coherent with the other provisions of the statute and the context in which the provision operates.[18] 'Context' is to be understood in its widest sense to include such matters as the existing state of the law, and the legislative history of the provision.[19]
[17] cf Centurion Trust Co Ltd v Director of Public Prosecutions [2008] WASCA 6; (2008) 35 WAR 463 [105] (McLure JA).
[18] Mohammadi v Bethune [2018] WASCA 98 [31] - [36] (Martin CJ, Mazza and Beech JJA).
[19] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Commissioner of State Revenue v Abbots Exploration Pty Ltd [2014] WASCA 211; (2014) 48 WAR 300 [91].
When an answer to a question of statutory construction is not readily apparent from the text, and the context presents a range of rational potential constructions, the court must evaluate the relative coherence of alternative constructions with identified statutory objects or policies.[20]
[20] Taylor v Owners of Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531 [66] (Gageler and Keane JJ).
As a general rule it is not permissible to construe a statute by reference to the terms of subsidiary legislation made under it.[21] There are exceptions to the general rule.[22] Where a legislative scheme is comprised of both an Act and the regulations made under it, reference may be made to the regulations in order to understand the nature of the scheme. Reference may be made to subsidiary legislation as a direct aid to the construction of an ambiguous or obscure statutory provision where a contemporaneously prepared Act and set of regulations may be seen to establish an interdependent regime.[23] Regulations that are passed after the statute was enacted cannot be used to construe the statute because, as Bergin CJ in Eq observed in CCM Holdings Trust Pty Ltd v Chief Commissioner of State Revenue,[24] that would lead to the possibility of the statute being construed differently at different times according to changes in the regulations over the years.[25]
[21] Pearce D, Statutory Interpretation in Australia (9^th ed, 2019) [3.48].
[22] Pearce D, Statutory Interpretation in Australia (9^th ed, 2019) [3.49].
[23] Pearce D, Statutory Interpretation in Australia (9^th ed, 2019) [3.49] and the authorities to which reference is made, including O'Connell v Nixon [2007] VSCA 131; (2007) 16 VR 440 at [28] (Nettle JA with whom Chernov JA and Redlich JA agreed).
[24] CCM Holdings Trust Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 1072.
[25] CCM Holdings Trust Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 1072 [122].
The Act was enacted in 1978. It was amended extensively in 1981 before any of its substantive provisions came into operation.[26] The substantive provisions of the Act and the Regulations came into operation on 1 January 1982 and together they established an interdependent regime for the management and exploitation of the State's mineral resources.
[26] Acts Amendment (Mining) Act 1981 (WA).
The interdependency of the Act and the Regulations is apparent from s 96 and s 98 themselves. Section 96(1) expressly conditions a warden's power to order the forfeiture of a prospecting licence or a miscellaneous licence on the existence of an application made 'in the prescribed form and in the prescribed manner'. Section 98(2) provides that an application for forfeiture under s 98 shall be made 'in such form and manner as may be prescribed and shall be accompanied by the prescribed fee'.
Division 6 of pt IV of the Regulations (as the Regulations came into operation on 1 January 1982) contained provisions which prescribed how applications for forfeiture should be made. The Regulations prescribed one process for applications made under s 96(1)(b) and s 98 and another for applications made under s 96(1)(a).
Regulation 48 provided that an application under s 96(1)(b) or s 98 should be made by plaintiff using a prescribed form. The consequence of making an application by plaintiff was not dealt with in div 6 of pt IV of the Regulations. Rather the procedure was governed by pt VII of the Regulations. Regulations 123 - 126 set out the procedure to be followed and stated:
123.On receipt of a plaint, the mining registrar shall-
(a)fix a date and time for hearing in the warden's court being not less than 30 days from the date of lodgement, unless all parties to the action consent to an earlier hearing date;
(b)advise the plaintiff of the hearing date; and
(c)issue a summons in the form No 34 in the First Schedule in duplicate addressed to each defendant and forward it for service to-
(i)the plaintiff;
(ii)the bailiff of the court; or
(iii)if there is no bailiff, to the local police constable or some other suitable person approved by the mining registrar for purposes of regulation 124.
124.The person to whom the summonses are delivered shall serve them without delay, and thereupon shall make an affidavit of service, in the form No. 35 in the First Schedule, and deliver it to the mining registrar.
125. (1) A summons shall be served not less than 14 days before the date fixed for the hearing of the plaint.
(2) Where a summons has not been served within the prescribed time, the warden or mining registrar may, on giving notice to the plaintiff, extend the date of hearing and issue an amended summons.
126.When the defendant intends to dispute the claim he shall lodge with the mining registrar not less than 7 days before the date fixed for the hearing or at any subsequent time prior to the hearing as the warden may allow a notice of defence in the form No. 36 in the First Schedule with the prescribed fee, and the mining registrar shall forward a copy of the notice to the plaintiff.
Regulations 49 and 50 governed applications under s 96(1)(a) and stated:
49.(1) An application for the forfeiture of a mining tenement under section 96(1)(a) of the Act shall be in the form No 15 in the First Schedule.
(2) On receipt of an application referred to in subregulation (1), the warden shall fix a date on which he intends to hear an application for the forfeiture of the mining tenement (hereinafter in this regulation referred to as the fixed date), and the warden shall then cause the following action to be taken-
(a)written notification of the intended hearing to be forwarded by post to the holder of the mining tenement, at least 30 days prior to the fixed date, addressed to him at his last known place of abode or business;
(b)a notice of the intended hearing to be posted up on the notice board at the office of the mining registrar at least 14 days prior to the fixed date; and
(c)notice of the intended hearing to be published in the Government Gazette at least 14 days prior to the fixed date.
(3) An objection in the form No 16 in the First Schedule against the warden making an order for forfeiture referred to in subregulation (2) may be lodged at the office of the mining registrar with the prescribed fee at any time prior to the fixed date, and the warden shall hear and determine the matter.
50.The Minister may, before declaring under section 96A (1) of the Act that an exploration licence is forfeited or declaring under section 97(1) a mining lease or general purpose lease forfeited, as the case requires, cause -
(a)a written notification (which specifies a date on or before which the holder of the exploration licence or of the mining lease or general purpose lease may pay any outstanding rents or royalties or make written submissions that that holder wishes the Minister to consider) to be posted to that holder at his last known place of abode or business giving notice of the intended forfeiture of the exploration licence or of the mining lease or general purpose lease; and
(b)if the exploration licence or the mining lease or general purpose lease is liable to forfeiture for non-payment of rent or royalties, a notice of the intended forfeiture thereof to be posted on the notice board at the office of the mining registrar and published in the Government Gazette.
The interdependent regime created by the Act and the Regulations (as the Regulations were first enacted) that governs forfeiture applications contemplated that applications would not be determined without notice being given to the holder of the subject mining tenement. This is most readily apparent from reg 125(1) and reg 126 (in respect of applications under s 96(1)(b) and s 98) and from reg 49(2)(a), reg 49(2)(b) and reg 49(2)(c) (in respect of applications under s 96(1)(a)).
In this case, however, the issue is whether the requirement for service conditions the authority to decide (jurisdiction) or is of more limited significance and reflects and expresses the requirement for notice within the principles of natural justice.
In civil proceedings a court's in personam jurisdiction over a defendant derives from the fact of service of originating process on the defendant in the jurisdiction or by the invocation of the long arm provisions.[27]
[27] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 [25]; Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310, 322. Order 10 of the Rules of the Supreme Court 1971 (WA) is the source of this court's long-arm jurisdiction.
The court's in personam jurisdiction must be contrasted with its in rem jurisdiction in which jurisdiction is established by the presence of the rem within the jurisdiction. The rem need not be real property and may be incorporeal, for example, a chose in action. In Spencer-Bower and Turner: Res Judicata,[28] the distinction between a judgment in rem and judgment in personam was explained as follows:
A judicial decision in rem is one which declares, defines, or otherwise determines the status of a person, or of a thing, that is to say, the jural relation of the person, or thing, to the world generally, and therefore is conclusive for, or against, everybody, as distinct from those decisions which purport to determine the jural relation of the parties only to one another, and their personal rights and equities inter se, and which, therefore, are commonly termed decisions in personam.
[28] AK Turner, Spencer-Bower and Turner: Res Judicata (2^nd ed, 1969) [245].
Applications for forfeiture under s 96 and s 98 of the Act are, however, administrative proceedings and the principles that apply in civil proceedings before a court are not directly applicable.
In support of his submission that the service requirement was not a jurisdictional pre‑requisite but a step that satisfied the requirement for natural justice, counsel for Mr Cukela, Mr Russell, drew support from the observation of McLure JA in Centurion that:[29]
[Rules of the Supreme Court 1971 (WA)] Order 10 deals with the court’s jurisdiction over persons. It is only intended to apply to actions in personam not actions in rem. Service also satisﬁes the natural justice notice requirement but that does not go to the court’s jurisdiction (authority) to decide the matter.
[29] Centurion Trust Co Ltd v Director of Public Prosecutions [101].
McLure JA's observation was made in the context of a case in which her Honour concluded that an application for a freezing order under the Criminal Property Conﬁscation Act 2000 (WA) (in respect of property within the territorial limits of Western Australia) was an action in rem. Her Honour's reasoning was as follows:[30]
The starting point for determining whether the court’s jurisdiction and/or freezing orders are in rem or in personam is the terms of the Act. The court’s power under s 43 of the Act is conﬁned to declaring the status of the speciﬁed property to be frozen for the purposes of the Act. A freezing order is not in terms coercive and does not by its own force or effect purport to bind particular persons. It is the Act not the order that is the direct source of the consequential personal obligations on individuals. It is the Act that prohibits all persons from dealing with frozen property in any way, the breach of which constitutes an offence. It is the Act that requires service of the freezing order and entitles persons to make an application to the court to seek the release of conﬁscable or conﬁscated property. It is the Act that imposes an obligation on persons served with a freezing order to give a statutory declaration advising whether or not the declarant is aware of any other person who is or may be an interested party.
Insofar as the Act applies to property within the territorial limits of Western Australia, the four characteristics of a judgment in rem are satisﬁed. As the court’s power under s 43 is conﬁned to making freezing orders I conclude the court’s jurisdiction to make freezing orders in relation to property within the State is in rem. Accordingly, the court’s jurisdiction to make a freezing order in relation to property within the jurisdiction is not dependent on service of the originating process or freezing order on the owner of, or persons interested in, the property.
[30] Centurion Trust Co Ltd v Director of Public Prosecutions [105] - [106].
An analogy drawn with freezing orders under the Criminal Property Conﬁscation Act provides limited assistance because a number of the critical features of a freezing order identified by McLure JA are not shared by an order for forfeiture or a recommendation for forfeiture. Unlike a freezing order, orders for forfeiture under s 96 and s 99 do have coercive effect and do bind the holder of the subject mining tenement. Further, orders for forfeiture are final in nature and effect whereas a freezing order is in the nature of interim relief granted pending further investigation. Further, if as an alternative to making an order for forfeiture a warden imposes a penalty on the holder of the tenement, it is the order and not the Act that is the direct source of the obligation to pay the penalty. It must be acknowledged, however, that some of the consequences following the making of an order for forfeiture flow from the Act rather than the order, such as the right of priority conferred by s 96(4) and s 100.
There are three reasons which combine to lead me to the conclusion that the service requirements condition the authority to decide applications for forfeiture. They are as follows:
(a)The importance attached to service within the procedural regime established by the Regulations points to service having a significance going beyond the natural justice notice requirement and being a jurisdictional requirement.
(b)Applications for forfeiture under s 96 and s 98 may have some of the features of an action in rem but the Act confers broad discretions on the warden and the Minister to order forfeiture or make various other orders including orders imposing penalties. The applications are sui generis. Given the breadth of the statutory discretion, in my view there is no justification for regarding the power to impose very significant penalties as being of secondary significance. For this reason, I do not agree with the warden's characterisation of the power to impose a penalty as incidental to a decision to maintain the status quo in respect of the subject mining tenement.
(c)Where the exercise of a statutory power has the capacity to destroy or prejudice a person's rights, observance of the principles of natural justice will ordinarily be taken to condition the exercise of the power. The relevant principle was explained by the plurality (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) in Saeed v Minister of Immigration and Citizenship,[31] as follows:
[31] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; [2010] 241 CLR 252 [11] - [15].
In Annetts v McCann it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person’s rights or interests, principles of natural justice regulate the exercise of that power. Brennan J in Kioa v West explained that all statutes are construed against a background of common law notions of justice and fairness. His Honour said:
“[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that 'the justice of the common law will supply the omission of the legislature'. The true intention of the legislation is thus ascertained.”
The implication of the principles of natural justice in a statute is therefore arrived at by a process of construction. It proceeds upon the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann.
Observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, as Brennan J further explained in Kioa v West. A failure to fulﬁl that condition means that the exercise of the power is inefficacious. A decision arrived at without fulﬁlling the condition cannot be said to be authorised by the statute and for that reason is invalid.
In Annetts v McCann Mason CJ, Deane and McHugh JJ said that the principles of natural justice could be excluded only by “plain words of necessary intendment”. And in Commissioner of Police v Tanos Dixon CJ and Webb J said that an intention to exclude was not to be assumed or spelled out from “indirect references, uncertain inferences or equivocal considerations”. Their Honours in Annetts v McCann added that such an intention was not to be inferred from the mere presence in the statute of rights consistent with some natural justice principles.
The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality which, as Gleeson CJ observed in Electrolux Home Products Pty Ltd v Australian Workers’ Union, “governs the relations between Parliament, the executive and the courts”. His Honour said:
“The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.” (footnotes omitted)

In conformity with the position at common law in respect of civil proceedings brought against an individual who has died, it follows from the conclusion that service conditions the authority to decide applications for forfeiture under s 96(1)(b) and s 98, that if an application cannot be served because the respondent tenement holder is an individual who has died, the application is a nullity. That the Act contains a specific provision, s 101, addressing the circumstance of a company, which is the respondent to an application for forfeiture going into liquidation or provisional liquidation, suggests that the legislature intended that the common law, as it applies to civil proceedings against an individual who has died, should apply when an individual dies whilst registered as a holder of a mining tenement. In this context it may be noted that there is an important difference between the circumstances prevailing when an individual holder of a tenement dies and a company holding a tenement goes into liquidation or provisional liquidation. When the company holding a tenement goes into liquidation or provisional liquidation, the interests of the company's creditors and members are protected by the liquidator or provisional liquidator. When an individual holder of a tenement dies, pending the appointment of personal representatives, there is no one to protect the interests of the deceased estate.
It is necessary to consider how the construction I favour aligns with the identified objects of the Act. The Act's primary purpose is to encourage and promote the prospecting and exploration for, and mining of, mineral deposits in the State.[32] Applications for forfeiture are one method of ensuring this primary purpose is achieved as they ensure that tenement holders unable or unwilling to exploit the land covered by a tenement yield to those who can. The construction exercise in this case invites consideration of the potential for injustice to those entitled to a tenement on the death of an individual tenement holder if a forfeiture order is made without notice to them - a possible outcome - and the prejudice that may be suffered by a person wishing to bring a forfeiture application in respect of a tenement held by an individual who has died and who, as a consequence of delay in the appointment of personal representatives, is unable to comply with the time limits for bringing applications specified in s 96(2a) and s 98(2). In my view the avoidance of a risk of an injustice (unlikely though it may be), in the form of the forfeiture of a mining tenement without notice to those contingently entitled to it, is to be accorded priority over the prejudice that might be suffered by a person wishing to bring a forfeiture application. A factor that weighs heavily in favour of this view is that a prospective applicant for forfeiture can apply under s 162B to extend the time within which an application can be brought whereas the prejudice suffered if a tenement is forfeited without notice is irremediable.
[32] Nova Resources NL v French (1995) 12 WAR 50, 57 (Rowland J, Kennedy & Pidgeon JJ agreeing); Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 [70] (Buss JA, Wheeler JA agreeing); Commonwealth of Australia v State of Western Australia [1999] HCA 5; (1999) 196 CLR 392 [172] (Kirby J).

Orders and costs

I will hear the parties in relation to the orders to be made and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Tottle
10 NOVEMBER 2021

[2021] WASC 393

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Jurisdiction

Natural Justice & Procedural Fairness

Statutory Construction