Golden Pig Enterprises Pty Ltd v O'Sullivan - [2021] WASC 396

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   GOLDEN PIG ENTERPRISES PTY LTD -v- O'SULLIVAN [2021] WASC 396
CORAM:   ALLANSON J
HEARD:   1 NOVEMBER 2021
DELIVERED          :   17 NOVEMBER 2021
FILE NO/S:   CIV 1318 of 2021
BETWEEN:   GOLDEN PIG ENTERPRISES PTY LTD
Applicant
AND
JOHN FRANCIS O'SULLIVAN
Respondent
PETER JOHN CROCKER
First Other Party
GERARD VICTOR BREWER
Second Other Party
STEVEN LIONEL KEAN
Third Other Party

Catchwords:

Judicial review - Application for exploration licences - Where applicant required to file statement specifying technical and financial resources available to it - Where warden found statement did not specify technical and financial resources - Whether warden erred in law

Judicial review - Statutory construction - Use of dictionary meaning in construction of terms of Act

Legislation:

Mining Act 1978 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	D Banda
Respondent	:	No Appearance
First Other Party	:	D Chandler
Second Other Party	:	D Chandler
Third Other Party	:	C Mckenzie

Solicitors:

Applicant	:	Bennett + Co
Respondent	:	State Solicitor's Office
First Other Party	:	Lawton Macmaster Legal
Second Other Party	:	Lawton Macmaster Legal
Third Other Party	:	McKenzie & McKenzie

Cases referred to in decision:

Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211; (2014) 48 WAR 300
Commissioner of State Revenue v Oz Minerals Ltd [2013] WASCA 239; (2013) 46 WAR 156
Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510
Nicholas v Western Australia [1972] WAR 168
Onslow Resources Ltd v Hon William Joseph Johnston MLA incapacity as Minister for Mines and Petroleum [2021] WASCA 151
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
South Western Sydney Local Health District v Gould [2018] NSWCA 69; (2018) 97 NSWLR 513
State of Western Australia v Graham on behalf of the Ngadju People [2016] FCAFC 47
TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49; (2010) 241 CLR 576
Will v Brighton [2020] NSWCA 355; (2020) 104 NSWLR 170

ALLANSON J:

Introduction

On 12 October 2016, the applicant, Golden Pig Enterprises Pty Ltd, lodged an application for an exploration permit over land in the North East Coolgardie mineral field.
Objections were made to the application. The objections were not heard or determined for some time, for reasons which are not here relevant. In a decision made 31 March 2021, Mining Warden O’Sullivan held that the application did not comply with s 58 of the Mining Act 1978 (WA). The consequences of that finding were left for further submissions by the parties.
Golden Pig applies for judicial review of that decision and seeks relief quashing the warden's decision and a declaration that the s 58 statement filed in support of its application (alternatively, that statement together with supplementary information) complied with s 58 of the Act.
The warden has filed a submitting appearance. Three objectors to the application for an exploration licence were named as other parties and appeared on the application for judicial review.
Unless stated otherwise, all references to legislation in these reasons are to the Mining Act.

The evidence

The following affidavits were filed and read in the application:
(1)Affidavit of Charles Mark Dallimore, solicitor, affirmed 21 April 2021 which, relevantly, attaches the reasons given by the warden for his decision, the application for an exploration license, and the documents which accompanied that application;
(2)Affidavit of Peter Glen Klauz, solicitor, affirmed 6 August 2021; and
(3)Affidavit of Hayden Richard Hennessey, law clerk, sworn 26 August 2021, attaching the transcript of the proceedings before the warden.

Legislation

Exploration licences

By s 57 of the Act, the Minister may, on the application of any person, and after receiving a recommendation of the mining registrar or the warden in accordance with s 59, grant to that person a licence to be known as an exploration licence.
By s 57(3), the mining registrar or warden shall not recommend the grant of an exploration licence under this section unless he is satisfied that the applicant is able to effectively explore the land in respect of which the application has been made.
Section 58 provides:
(1) An application for an exploration licence —
(a) shall be in the prescribed form; and
(b) shall be accompanied by a statement specifying —
(i) the proposed method of exploration of the area in respect of which the licence is sought; and
(ii) the details of the programme of work proposed to be carried out in such area; and
(iii) the estimated amount of money proposed to be expended on the exploration; and
(iv) the technical and, subject to subsection (1aa), financial resources available to the applicant; and
(c) shall be accompanied by the amount of the prescribed rent for the first year of the term of the licence or portion thereof as prescribed; and
(d) shall be lodged in the prescribed manner; and
(e) shall be accompanied by the prescribed application fee.
…
(3) An applicant shall at the request of the mining registrar or warden furnish such further information in relation to his application, or such evidence in support thereof, as the mining registrar or warden may require but the mining registrar or warden shall not require information or evidence relating to assays or other results of any testing or sampling that the applicant may have carried out on the land the subject of his application.
(4) Within the prescribed period the applicant shall serve such notice of the application as may be prescribed on the owner and occupier of the land to which the application relates and on such other persons as may be prescribed.
Section 59 provides for the determination of an application for an exploration licence. Where no objection is lodged to the grant, the mining registrar shall forward a report to the Minister and recommend the grant of the exploration licence, if the mining registrar is satisfied that the applicant has complied in all respects with the provisions of the Act; or recommend the refusal if not so satisfied.
Where an objection is lodged, the warden shall hear the application and give the objector an opportunity to be heard. The warden shall then forward to the Minister the notes of evidence, any maps or documents referred to, and a report which recommends the grant of refusal of the licence and the reasons for the recommendation. The Minister may, on receipt of the report of the mining registrar or the warden, grant or refuse the exploration licence.
An exploration licence shall remain in force for a period of five years, and may be extended.[1]
[1] Section 61(1)(2).
During the currency of the licence, the holder must comply with prescribed expenditure conditions, unless an exemption is granted,[2] and is liable to forfeiture for failure to comply with terms and conditions, including expenditure conditions.[3]
[2] Section 62.
[3] Section 63A.
Section 68 requires the holder of an exploration licence to keep complete and detailed records of the surveys and other operations conducted pursuant to the licence and to produce the records for inspection on written request. The holder must also furnish the Minister with such information relating to the surveys and other operations conducted by the holder pursuant to the licence and such geological samples obtained in the course of those operations as the Minister may request.
An exploration licence may be transferred or otherwise dealt with, subject to restrictions which apply during the first year of the term.[4]
[4] Section 64.
The holder of an exploration licence has priority for the grant of a mining lease or general purpose lease over the land.[5]

Priority

[5] Section 67.

By s 105A, the applicant who first complies with the 'initial requirement' in relation to an application for a mining tenement in respect of the same land has, subject to the Act, priority over every other applicant.
Compliance with the initial requirement, in an application for an exploration licence, is a reference to lodging the application in the manner prescribed by reg 59A of the Mining Regulations 1981 (WA).[6]
[6] Section 105A(4), and reg 59A.

Background facts

Golden Pig lodged an Application for Exploration Licence 28/2653 on 12 October 2016.[7]
[7] Affidavit of Charles Mark Dallimore affirmed 21 April 2021, CMD 3.
The application was accompanied by a document which has been described as the s 58 statement, and a term deposit record showing $369,438.11 held in the name of Mr V Miasi and maturing on 6 January 2017.[8] The warden treated the term deposit record as part of the statement. Mr Miasi is the sole director and shareholder of Golden Pig.
[8] Affidavit of Charles Mark Dallimore affirmed 21 April 2021, CMD 2.
The 'statement' otherwise is a document dated 11 October 2016 titled
Proposed Two Year Work Program
Pinjin Project
Tenements Application
(Period: Two Year Exploration Program)
In the document, Golden Pig outlined a strategy which included evaluation of past exploration programs; reviewing and re‑interpreting data from previous surveys; assessing the effectiveness of previous drilling; and undertaking exploration programs.
In a section headed, 'Proposed Exploration 2016 to 2018', the document included the statement:
The following work program will be conducted by consulting geologists, geochemists and geophysicists with a strong emphasis on initially evaluating past geological and geochemical work programs.[9]
[9] Affidavit of Charles Mark Dallimore affirmed 21 April 2021, page 22.
Golden Pig included a statement of proposed exploration, 2016 to 2018, with estimated expenditure of $85,000 in the first year and $118,500 in the second year.
Subsequently, the applicant lodged affidavits of Mr Miasi on 14 October 2016[10] and 13 September 2019,[11] and provided a letter dated 2 September 2019 from its solicitors to the Department,.[12]
[10] Affidavit of Charles Mark Dallimore affirmed 21 April 2021, CMD 4.
[11] Affidavit of Charles Mark Dallimore affirmed 21 April 2021, CMD 10
[12] Affidavit of Charles Mark Dallimore affirmed 21 April 2021, CMD 9.
The three 'other parties' lodged objections, pursuant to s 59(1).[13] The grounds of objection included that the application failed to specify the technical and financial resources available to Golden Pig.[14]
[13] Affidavit of Charles Mark Dallimore affirmed 21 April 2021, CMD 6,7 and 8.
[14] Affidavit of Peter Glen Klauz affirmed 6 August 2021, PGK 4, 5 and 7.
The objections were heard pursuant to s 59(4) on 23 November 2020. The warden published reasons on 31 March 2021.

The hearing before the warden

Golden Pig's case before the warden was that it did not have technical resources of its own but would rely on resources available from consultants in the Western Australian market. Mr Miasi could not specify who those consultants were, and said it was premature to ask because he could only engage them after the tenement was granted. Golden Pig submitted:
to require an applicant for an exploration licence, far in advance of being able to set foot on the ground to name individual consultants to be used, is really impractical and incompatible with commercial common sense, because by the time the application is granted, consulting firms may have changed, availabilities may have changed, everything may have changed.[15]
[15] Transcript of hearing before the warden; affidavit of Hayden Richard Hennessy sworn 25 August 2021 page 9.
The evidence called by Golden Pig before the warden was consistent with that position.

The warden's reasons

The warden found that the s 58 statement filed by Golden Pig was not compliant in two respects: the statement did not specify the technical resources available to the applicant; and it did not specify the financial resources available to the applicant.
The warden stated:
7. The Applicant's s 58 statement, so far as technical resources are concerned, says only:
The following works program will be conducted by consulting geologist, geochemists and geophysicists…
…
9. Subsequent to the lodgement of the s 58 statement, the Department wrote to the Applicant on 6 December 2016 requesting, among other things, that the Applicant specify who the consultants were. Mr Miasi, the director of the Applicant, testified that he telephoned the Department and explained that the request was premature, because he could only engage consultants after the tenements was granted.
…
11. By letter dated 2 September 2019, through its solicitors, the Applicant provided the Department the details of the consultants that it proposed to use; being Cubic Consulting and Digirock Exploration Geologists. The letter included details of the technical expertise of the two companies.
Mr Miasi, in cross‑examination, had agreed that he did not know whether either of those consultants was in fact available.
The warden then set out the dictionary definitions of the terms 'specifying' and 'available', and said:
17. In my view, the general statement that the work program will be conducted by 'consulting geologists, geochemists and geophysicists' falls well short of specifying the technical resources available to the Applicant.
18. Even the subsequent naming of two companies that carry out geological work without any enquiry as to whether they would accept engagement by the Applicant, does not establish their availability.
…
22. Section 58(1)(b)(iv) speaks in terms of the technical resources 'available to the Applicant' not merely technical resources that are generally available.
23. The section requires the Applicant to establish that it has access to the technical resources necessary to effectively explore the land the subject of the application. In my view, it did not do so in its s 58 statement and has not done so subsequently.
In relation to financial resources, the warden noted that the s 58 statement included the term deposit record showing $369,438.11 held in the name of Mr Miasi, and the works program submitted by Golden Pig estimated that $204,000 would be spent during the first two years. Golden Pig further relied upon Mr Miasi being the person who lodged the form, and his being identified in an affidavit of 14 October 2016 as its sole director. The warden held, however, that the information that Mr Miasi was a sole director of Golden Pig was in an affidavit lodged with the Department two days later and for another purpose. It did not form part of the s 58 statement which was required to accompany the application.[16] The warden further held that it is not for the warden or mining registrar to research or draw inferences – the s 58 statement must clearly state that the deposit is available for the applicant's use.
[16] Warden's reasons [35].
The warden concluded that the s 58 statement failed to specify the financial resources available to Golden Pig. While the term deposit slip was lodged with the application, no information that Mr Miasi was in charge of, or had a beneficial interest in, Golden Pig was included in the s 58 statement. The warden apparently adopted observations in earlier decisions that it is not sufficient that the warden or registrar 'must imply, infer, calculate or use any other methodology to establish that a financial or technical resource is available to the applicant.'[17] It is not necessary, for the purposes of this application, to determine whether the reasoning in those earlier decisions might overstate what is required.
[17] Warden’s reasons [32].
On the basis of those findings, the warden concluded that Golden Pig had not established a compliant application with priority over every other applicant. He further commented, without a finding, that if a compliant s 58 statement is a jurisdictional fact, non‑compliance would mean the application is invalid and the jurisdiction of the Minister to grant or refuse the application, on the recommendation of the warden, has not been enlivened.
The warden, correctly, addressed the question of whether the statement that accompanied the application complied with s 58(1)(b).[18] It appears, however, that (consistently with earlier decisions of other wardens on which he relied) he conflated two questions: is the application accompanied by a statement specifying the technical and financial resources available to the applicant; and does the applicant have the financial and other resources available to it to carry out the work program?
[18] Compliance with the other requirements of s 58 was not challenged.
Thus, he said in his reasons:
Section 58(1)(b)(iv) speaks in terms of the technical resources available 'to the Applicant' not merely technical resources that are generally available.
The section requires the Applicant to establish that it has access to the technical resources necessary to effectively explore the land the subject of the application. In my view, it did not do so in its s 58 statement and has not done so subsequently.[19]
[19] Warden’s reasons [22] - [23].
The question whether an applicant is able to effectively explore the land in respect of which the application has been made arises under s 57(3). Section 57(3) does not require the decision of the warden to be based solely on what is in the statement under s 58 accompanying the application. By s 58(3), the mining registrar or warden may require an applicant to furnish further information or supporting evidence relating to the application.
A finding by the warden under s 57(3) that he was, or was not, satisfied that an applicant is able to effectively explore the land would be a finding of fact within his jurisdiction. Further, a finding that an applicant is not able to effectively explore the land does not affect the power of the warden to hear objections and report, or the power of the Minister to grant a licence. The warden could not recommend the grant of an exploration licence, but the Minister, on receipt of the report, may grant or refuse irrespective of the warden's recommendation.
Failure to comply with s 58(1) has different consequences.

The requirements for a s 58 statement

Before considering what is required by s 58, I will briefly consider the consequences of non-compliance.
The provisions relevant to the present application are distinguishable from those which apply on an application for a mining lease and were considered by the High Court in Forrest & Forrest Pty Ltd v Wilson.[20] There are no provisions in pt 4 div 2 corresponding to s 74(1)(ca)(ii), s 74A(1) and s 75(4a), those provisions having the evident purpose of ensuring that non‑compliant applications would not proceed to a hearing by the warden or a grant by the Minister. Further, the material filed in support of an application for an exploration license is not required to be made available for public inspection.[21]
[20] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510. The authorities cited with approval by the High Court in Forrest v Wilson - in particular, Nicholas v Western Australia [1972] WAR 168 at 172, 174 - are not confined to mining leases or other leasehold interests.
[21] Compare s 74(5).
But there is a second aspect of the reasoning of the majority in Forrest & Forrest which applies. Their Honours said:
Regrettably, the Court of Appeal was not referred to, and did not consider, the line of authority which establishes that where a statutory regime confers power on the executive government of a State to grant exclusive rights to exploit the resources of the State, the regime will, subject to provision to the contrary, be understood as mandating compliance with the requirements of the regime as essential to the making of a valid grant. When a statute that provides for the disposition of interests in the resources of a State 'prescribes a mode of exercise of the statutory power, that mode must be followed and observed'. The statutory conditions regulating the making of a grant must be observed. A grant will be effective if the regime is complied with, but not otherwise.[22]
[22] Forrest & Forrest Pty Ltd v Wilson [64].

Exploration licenses are mining tenements. Mining tenements –including mining leases – have been characterised as being in the nature of personality, giving no proprietary interest in the land the subject of the tenement.[23] While the rights conferred by an exploration licence under pt IV div 2 are not as extensive as those under a mining lease,[24] they include the right to enter and re‑enter land, to explore for minerals in or under the land, to remove mineral bearing substances within a prescribed amount, and to take and divert water. Subject to s 64, the holder of an exploration licence may deal with it, for example, by transferring it. The holder of an exploration licence has, subject to the Act, the right to apply for and have granted a mining lease or general purpose lease.[25] When those rights and incidents of an exploration licence are considered, the grant of an exploration licence is properly characterised as a disposition of interests in the resources of the State.
[23] TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49; (2010) 241 CLR 576 [27] - [47]; Commissioner of State Revenue v Oz Minerals Ltd [2013] WASCA 239; (2013) 46 WAR 156 [109]; State of Western Australia v Graham on behalf of the Ngadju People [2016] FCAFC 47 [141].
[24] See the discussion of Buss JA in Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211; (2014) 48 WAR 300 [65] - [75].
[25] Section 67.
The filing of an application in the prescribed form, accompanied by the statement required by s 58(1)(b), and accompanied by rent of the prescribed amount and the prescribed application fee, are elements in the regime prescribed for the grant of an exploration license and must be followed if there is to be a valid grant.
The first and second other parties referred the court to the decision of the Court of Appeal in Onslow Resources Ltd v Hon William Joseph Johnston MLA in capacity as Minister for Mines and Petroleum[26] – a case which, on its facts, was more extreme. The question was whether the application for a mining lease by Onslow Resources had been accompanied by a mining operations statement for the purposes of s 74(1a). The Court of Appeal held that the document relied on (a letter) 'did not, on any rational view, provide anything resembling the information required by s 74(1a) of the Act. A reasonable recipient of the letter would not, and could not sensibly, have taken the letter as an attempt to provide a mining operations statement…'.[27]
[26] Onslow Resources Ltd v Hon William Joseph Johnston MLA incapacity as Minister for Mines and Petroleum [2021] WASCA 151.
[27] Onslow Resources [44].
The Court also observed that the scheme of the Act does not admit of the notion of a 'non‑compliant' statement, in the sense of a document that partly meets the description of the statement required.
There is no 'halfway house' in which a document includes sufficient parts of the information required by s 74(1a) so as to enliven jurisdiction to consider the application but insufficient information to comply with the Act.[28]
[28] Onslow Resources [49].
A non‑compliant statement could not be regularised by the provision of further information.

Grounds

The application for review is brought on three grounds:
1 The Respondent erred in law in finding that the Applicant did not specify the technical and financial resources available to the Applicant in accordance with section 58(1)(b) (iv) of the Mining Act 1978 (WA) when in fact the Applicant did so specify.
2 The Respondent erred in law in that the Respondent misconceived the meaning and effect of the requirement to specify technical and financial resources under section 58(1)(b)(iv) of the Mining Act.
3 The Respondent failed to properly consider further information or evidence from the Applicant where the Applicant had filed a statement in accordance with section 58(1)(b) together with an application for an exploration licence, and further information was provided under section 58(3) of the Mining Act to clarify, illuminate or supplement the information contained within the section 58 statement and the receipt and/or consideration of that information or evidence does not affect the priority of the Application.

Ground 1 and 2

These grounds may be considered together, as the proper construction of s 58(1)(b)(iv) must inform the finding whether Golden Pig did specify the technical and financial resources available to it in accordance with that section.
Section 58(1)(b)(iv) requires the application for an exploration licence to be accompanied by a statement specifying —
(i) the proposed method of exploration of the area in respect of which the licence is sought; and
(ii) the details of the programme of work proposed to be carried out in such area; and
(iii) the estimated amount of money proposed to be expended on the exploration; and
(iv) the technical and, subject to subsection (1aa), financial resources available to the applicant.
The plain meaning of the section is that the statement must accompany the application. The plain meaning of what is required for the content of the statement to comply with s 58(1)(b)(iv) is, perhaps less readily apparent.
The warden had regard to definitions from the Macquarie Dictionary (Online):
(1)specify, 'to mention or name specifically or definitely; state in detail;
(2)available, 'suitable or ready for use; at hand; of use or service: available services'.[29]
[29] Warden’s reasons [14], [16].
The range of meanings demonstrates the limited utility of resort to dictionaries in the task of construction. The statement of principle in Project Blue Sky Inc v Australian Broadcasting Authority is regularly cited:
…the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[30]
[30] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78].
In Will v Brighton, Bell P said of the use of the dictionary in the process of construction (his Honour's numerous citations of authority have been omitted):
First, focussing on the definition of a particular word or words in a dictionary may detract from the need to attend to the meaning of the words of a statutory provision as a whole and the meaning of the whole statutory provision in the wider context of the Act or Acts in question….
Secondly, dictionaries will often supply a range of meanings for a particular word and consultation of a dictionary will supply no guidance to the meaning of the word or words which the legislature intended…
… I would not go so far as some fully to eschew the use of dictionaries in the exercise of statutory construction… Like secondary materials whose use in the interpretation of statutes is authorised by the Interpretation Act, dictionaries may supply some assistance in the interpretation of a statutory provision or at least in the initial identification of a range of possible meanings but they must be used with caution for the reasons already noted. Indeed, it has been said that “[t]o refuse to look at a dictionary risks a judge proceeding on the basis of a vague and imprecise understanding of the ordinary meanings of a word”: Herzfeld and Prince at [2.140].
The famous injunction issued by Judge Learned Hand in Cabell v Markham 148 F 2d 737 at 739 (2nd Cir 1945) “not to make a fortress out of the dictionary” does not operate to preclude or disclaim the value of the use of dictionaries entirely, or to render such reference irrelevant to the exercise of statutory construction. It warns simply that dictionaries are not a substitute for the ordinary process of statutory construction, taking into account the broader context of the relevant provision… Dictionaries may be resorted to but not relied upon at least in any absolute sense to discharge the task of statutory construction.[31]
[31] Will v Brighton [2020] NSWCA 355; (2020) 104 NSWLR 170 [53] - [58]
In South Western Sydney Local Health District v Gould, Leeming JA said:
The task of a court is to identify, from text, context and purpose, the particular meaning that a statutory provision bears. The function of a dictionary and the function performed by a court construing a statute are utterly different. It must be borne in mind that the meaning of any word used in a statute depends on the context and purpose of the legislation in which it appears….
…even in cases where a dictionary might assist at the outset, the court’s task is not accomplished by surveying the range of meanings found in a dictionary and choosing that which seems most apt. Doing so may often disguise the real reasons which favour a particular legal meaning. As McHugh J said in Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [98], ‘The literal meaning of the legislative text is the beginning, not the end, of the search for the intention of the legislature.’[32]
[32] South Western Sydney Local Health District v Gould [2018] NSWCA 69; (2018) 97 NSWLR 513 [79], [81].
The following factors, in my opinion, are relevant in discerning the meaning the legislature intended by the words of s 58(1)(b).
First, the court must have regard to the words used. Specify is generally used when some degree of certainty or detail is intended. The word 'specifying' is used also in relation to the proposed method of exploration, the proposed program of works, and the estimated expenditure over a program of exploration. These are matters which need to be stated with some degree of certainty or detail. The same requirement of specificity should apply for all of the subparagraphs of s 58(1)(b).
Second, the matters in s 58(1)(b) are required to be in a written statement that accompanies the application for an exploration licence. Should there be no objector, the report of the mining registrar is forwarded to the Minister under s 59(2). If satisfied that the applicant has complied with the provisions of the Act, the mining registrar is required to recommend the grant of the exploration license.[33] On receipt of the report, the Minister may grant or refuse the exploration licence. Any licence granted is deemed to be granted subject to conditions, including that the holder will explore for minerals.
[33] Section 59(3).
The apparent intention of the section is that the mining registrar or other person reading the application and accompanying statement should be informed, by those documents, what resources are available to the applicant to carry out the proposed method of exploration and the proposed program of works, and to fund the estimated expenditure. The mining registrar should be able to be satisfied, from the prescribed form and documents which accompany it, whether the applicant has complied in all respects with the provisions of the Act, and accordingly whether to recommend the application be granted or refused, and the reasons for that recommendation.
That intention will be frustrated unless the matters prescribed by s 58(1)(d) are stated definitely and in sufficient detail.
Counsel for Golden Pig submitted that the section must be read as a whole, and in a practical way. Counsel submitted that an application will not fail to comply by reason only of the 'quality' or 'sufficiency' of information in the accompanying statement, provided the statement 'addressed' the matters in s 58(1)(b). Provided that the application is compliant in that sense, assessments as to the quality or sufficiency of the information supplied within an application are matters for the mining registrar or warden to determine. In particular, it is not necessary to state the name or entity that will conduct exploration activities on behalf of the applicant in order to submit a valid application, and it may in fact be impractical to require the names of workers or contractors.
On that basis, Golden Pig submitted that its statement was compliant even if it may be unclear. Further information may be requested and supplied before the decision is made, if the information initially provided is unclear or insufficient to satisfy the mining registrar or warden about the capacity of the applicant to explore. The mining registrar or warden must then consider that information before making a decision.
One difficulty with that submission is that s 58(1)(b), by its words, requires a statement accompanying the application and 'specifying' not simply 'addressing' the four prescribed matters. A s 58 statement is not required merely to indicate that an applicant has the resources available to it to carry out a program of exploration, but to say what those resources are.
The power to request further information does not overcome the legislative policy that the required information must be in the statement that accompanies the application.
Turning to the facts, Golden Pig relies on one sentence in the 'Proposed Two Year Work Programme', where, under the heading 'Proposed Exploration 2016 to 2018', it states:
The following work programme will be conducted by consultant geologists, geochemists and geophysicists with a strong emphasis on initially evaluating past geological and geochemical work programs.[34]
[34] Affidavit of Charles Mark Dallimore affirmed 21 April 2021, page 22.
In Golden Pig's submission, that sentence must be read with the proposed program to spend $204,000 in the first two years – a budget that substantially exceeded the minimum annual expenditure and was well within the amount in the term deposit in Mr Miasi's name.
But that one reference to consultants, together with the term deposit slip, cannot reasonably be read as a statement specifying the technical and financial resources available to the applicant to carry out the proposed exploration program. It is not sufficient that a s 58 statement indicate in some way that an applicant has resources available to it to carry out a program of exploration. The section requires that it specify what those resources are.
There is also, in my opinion, no error in the warden's conclusion that the term deposit slip accompanying the application for the exploration license also failed to comply. That deposit slip is not a statement specifying that those funds, or some part of them, are financial resources available to Golden Pig.

Ground 3

The comments made above regarding the need for the statement accompanying the application to comply with s 58(1)(b) are sufficient to dispose of ground 3 of the application. Further evidence or information provided by the applicant under s 58(3) might be relevant to the question arising under s 57(3), assuming a complying application, but is not part of the statement accompanying the application.

Conclusion

I have found that the warden's reasons may have conflated two questions: whether a statement had been filed that complied with s 58(1)(b); and whether the applicant is able to effectively explore the land in respect of which the application has been made. That error is not material to the result where the warden has correctly found that the statement that accompanied Golden Pig's application did not comply with s 58(1)(b).
The application for judicial review should be dismissed.

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