GARDNER -v- WMC RESOURCES LTD [2000] WASC 59

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 59
Case No:	CIV:1143/2000	Heard:	3 MARCH 2000
Coram:	SCOTT J	Delivered:	14/03/00
No of pages:	6	Judgment Part:	1 of 1
Result:	Application allowed
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Parties:	ROBERT CHARLES GARDNER WMC RESOURCES LTD
Catchwords:	Application for writ of certiorari Issue of a subpoena an administrative function as opposed to a judicial function Applicant seeking to challenge decision of a Warden Improper to use process of subpoena to replace discovery Applicant has established an arguable case so that the order nisi should issue
Legislation:	Mining Act 1978
Case References:	Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Finnie v Dalglish (1982) 1 NSWLR 400 Perpetual Trustees WA Ltd v City of Joondalup, unreported; SCt of WA (McKechnie J); Library No 990195; 16 April 1999 Re Capobianco; ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998 Re His Worship Mr Calder SM; ex parte Gardner [1999] WASCA 28 State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1981) 150 CLR 29 Grollo v Palmer (1995) 184 CLR 348 Love v Attorney-General (NSW) (1990) 169 CLR 307 Re Burton; ex parte Roberts (1997) 18 WAR 379 Senior v Holdsworth; ex parte Independent Television News Ltd [1976] QB 23

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : GARDNER -v- WMC RESOURCES LTD [2000] WASC 59 CORAM : SCOTT J HEARD : 3 MARCH 2000 DELIVERED : 14 MARCH 2000 FILE NO/S : CIV 1143 of 2000 MATTER : Application for a Writ of Certiorari against S R Malley SM of the Warden's Court, Perth

EX PARTE

ROBERT CHARLES GARDNER

Applicant

AND

WMC RESOURCES LTD

Respondent

Catchwords:

Application for writ of certiorari - Issue of a subpoena an administrative function as opposed to a judicial function - Applicant seeking to challenge decision of a Warden - Improper to use process of subpoena to replace discovery - Applicant has established an arguable case so that the order nisi should issue

Legislation:

Mining Act 1978

(Page 2)

Result:

Application allowed

Representation:

Counsel:

Applicant : Mr M J McCusker QC & Mr M C Hotchkin

Respondent : Mr C L Zelestis QC & Mr M T McKenna

Solicitors:

Applicant : Hotchkin Hanly

Respondent : Hunt & Humphry

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

Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Finnie v Dalglish (1982) 1 NSWLR 400
Perpetual Trustees WA Ltd v City of Joondalup, unreported; SCt of WA (McKechnie J); Library No 990195; 16 April 1999
Re Capobianco; ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998
Re His Worship Mr Calder SM; ex parte Gardner [1999] WASCA 28
State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1981) 150 CLR 29

Case(s) also cited:

Grollo v Palmer (1995) 184 CLR 348
Love v Attorney-General (NSW) (1990) 169 CLR 307
Re Burton; ex…

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 Gardner v WMC Resources Ltd

Details

AGLC: Gardner v WMC Resources Ltd [2000] WASC 59
Case: [2000] WASC 59
Decision Date: 14 MARCH 2000

CaseChat Overview and Summary

In the matter of Gardner v WMC Resources Ltd, the applicant sought to challenge the issuance of a subpoena by the respondent company, WMC Resources Ltd. The Federal Court was asked to determine whether the issuance of the subpoena was an administrative or judicial function, with the applicant arguing that it was administrative and thus outside the scope of the Court's power to review. The applicant further contended that the use of the subpoena process was improper and should be replaced with the discovery process. The case required the Court to determine the nature of the function performed by the Warden in issuing the subpoena and whether the applicant had established an arguable case for review.

The Court held that the issuing of a subpoena was not a judicial function but rather an administrative one, as it was a routine administrative act carried out by the Warden. The Court further found that it was improper for the applicant to use the process of subpoena to replace the discovery process. However, the Court held that the applicant had established an arguable case for review, and thus the order nisi should issue.

The Court granted the application for a writ of certiorari, allowing the applicant to challenge the decision of the Warden. The Court found that the issuing of a subpoena was an administrative function and that it was improper to use the subpoena process to replace the discovery process. However, the Court held that the applicant had established an arguable case for review, and thus the order nisi should issue. The Court did not make any final orders in the case, as it was only granting the application for a writ of certiorari.

Orders

Orders of the court

Application allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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