Haoma Mining Nl v Tunza Holdings Pty Ltd - [2006] WASCA 19

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HAOMA MINING NL -v- TUNZA HOLDINGS PTY LTD & ANOR [2006] WASCA 19

CORAM: STEYTLER P
WHEELER JA
PULLIN JA

HEARD: 21 OCTOBER 2005

DELIVERED : 7 FEBRUARY 2006

FILE NO/S: CIV 2204 of 2003

BETWEEN: HAOMA MINING NL
Applicant
AND
TUNZA HOLDINGS PTY LTD
First Respondent
THE MINISTER FOR STATE DEVELOPMENT
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  THE WARDEN'S COURT OF WESTERN AUSTRALIA
Coram  :WARDEN P HEANEY SM
Citation  :TUNZA HOLDINGS PTY LTD - v - HAOMA MINING NL [2003] WAMW 12
File No  :WAMW 12 of 2003

Catchwords:

Mining - Expenditure requirements - Application for exemption - Whether Warden properly considered submissions on s 102(2)(b) and s 102(3) Mining Act 1978 (WA) - Construction of s 102(4) Mining Act - Whether Warden may take into account previous failures to meet expenditure requirements which were the subject of certificates of exemption

Legislation:

Mining Act 1978 (WA), s 96, s 96(2a), s 102(2)(a), s 102(2)(b), s 102(3), s 102(4), s 103

Result:

Order nisi discharged

Category: A

Representation:

Counsel:

Applicant:     Mr C G Colvin SC & Mr G H Lawton
First Respondent           :     Mr M J McCusker QC & Mr M P Workman
Second Respondent      :     No appearance

Solicitors:

Applicant:     Lawton Gillon
First Respondent           :     Michael Workman
Second Respondent      :     No appearance

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

Haoma Mining NL v Tunza Holdings Pty Ltd [2001] WASCA 123
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Nova Resources NL v French (1995) 12 WAR 50
Re Heaney SM; Ex parte Haoma Mining NL v Tunza Holdings Pty Ltd, unreported; FCt of WA; Library No 980738; 18 December 1998
Re Warden Heaney; Ex parte Tunza Holdings Pty Ltd v Haoma Mining NL (1997) 18 WAR 420

Case(s) also cited:

Re His Worship Calder SM; Ex parte Gardner (1999) 20 WAR 525
Re Malley SM; Ex parte Gardner [2001] WASCA 29
Re Nicholls SM; Ex parte Plutonic Operations Ltd [2002] WASCA 232

STEYTLER P: In order to put this return of an application for prerogative relief into context, it is necessary to recite its vexed history.
In about May 1984, the applicant ("Haoma") entered into a Joint Venture Agreement ("JVA") with Consolidated Gold Mining Areas NL ("CGMA") and two others. By June 1993 the only remaining parties to the JVA were Haoma and CGMA. Haoma's participating interest in the joint venture was then 60.38 per cent and that of CGMA was 39.62 per cent. The JVA covered, amongst others, three prospecting licences numbered 39/2974, 39/2975 and 39/2976, described as the "Linden Tenements". Haoma was the registered proprietor of those tenements.
On 17 June 1993 a receiver was appointed in respect of CGMA's undertaking. By virtue of cl 12 of the JVA, Haoma became entitled to give to CGMA a notice to the effect that CGMA was deemed to have withdrawn from the joint venture. It did so and, also by virtue of cl 12, was consequently given an option to purchase CGMA's participating interest at a price to be agreed or, failing agreement, determined by arbitration. Haoma exercised the option. Haoma and CGMA were unable to agree on the price. The question of what price should be paid was consequently referred to an arbitrator.
Then, by writ dated 25 March 1994, Haoma sought to recover from CGMA the sum of $27,779.77, being moneys alleged to be due and owing to it under the terms of the JVA. Because this debt was disputed, it was agreed that that issue, too, should be dealt with by the arbitrator.
After the arbitration proceedings had commenced, a preliminary issue arose as to whether particular mining tenements should be regarded as joint venture property and hence included in the valuations. On 11 August 1994, by agreement between the parties, the arbitrator referred this issue to the Supreme Court for determination. When the issue came on for hearing before a Master on 28 July 1995, he determined that, because it required the resolution of disputed questions of fact, the issue should be returned to the arbitrator in order for him to make the necessary findings. Subsequently, by an order made in the Federal Court on 6 October 1995, a number of Haoma's officers were required to appear in the Federal Court in respect of an examination relating to the ownership of certain tenements. As a result of the evidence presented at that hearing, agreement was reached between the parties in or about late November 1995 as to what tenements comprised the joint venture property. A notice of discontinuance of the Supreme Court proceedings was consequently prepared and filed. Thereafter, the question of the determination of the value of CGMA's interest in the joint venture was referred back to the arbitrator.

Haoma's applications and Tunza's objections and plaints for forfeiture

Meanwhile, Haoma had, on 7 July 1995, lodged applications ("the applications") for certificates of exemption from the expenditure conditions which had been prescribed in respect of each of the Linden Tenements for the year which ended on 11 May 1995 (the total amount which had been required to be expended on those tenements during that year was $16,800). Each application was said to be made pursuant to s 102(2)(a), s 102(2)(b) and s 102(3) of the Mining Act 1978 (WA) ("the Act"). Then, on 21 July 1995, the first respondent, Tunza Holdings Pty Ltd ("Tunza"), filed notices of objection to the granting of the exemptions ("objections") and plaints for forfeiture ("plaints") of the Linden Tenements because of Haoma's failure to meet the expenditure conditions.
The applications, objections and plaints came on for hearing before the Warden on 2 and 3 April 1997. The applications were supported by an affidavit sworn by Haoma's solicitor, Mr Garry Lawton, dated 31 October 1996 ("Lawton affidavit"). An affidavit dated 26 September 1996 was filed on behalf of Tunza in support of the plaints. It was sworn by Mr James Sullivan, a director of Tunza ("Sullivan affidavit").
The Lawton affidavit recited Haoma's ownership of the Linden Tenements, the fact of the JVA and its coverage of the Linden Tenements, the fact of CGMA's receivership, the steps which had since been taken pursuant to cl 12 of the JVA and the difficulties which had arisen in the course of the arbitration proceedings. At the time of the hearing before the Warden, the arbitration was still on foot. In par 21 of the affidavit, Mr Lawton said that, until such time as the value of CGMA's joint venture interest could be agreed and payment made, Haoma had "slightly more than a 60% interest only in the tenements and … [was] unable to make appropriate plans to explore the same" and consequently sought "exemption in compliance with the expenditure requirements". Exemptions had been granted on a similar basis in respect of the preceding year, being that which ended on 11 May 1994.
The Sullivan affidavit recited much of the history of the Linden Tenements, and also of neighbouring tenements which had been held by Haoma, and recorded what had been expended by Haoma on those tenements in comparison with the expenditure requirements which had been imposed in respect of them.
Neither Mr Lawton nor Mr Sullivan was cross‑examined on his affidavit at the hearing.

The submissions made to the Warden on 2 and 3 April 1997

That brings me to the submissions which were made to the Warden during the course of the hearing. Before summarising them, I should set out the sections of the Act upon which Haoma relied, being s 102(2)(a) and (b) and s 102(3). I will also set out the provisions of s 102(4) , (5), (6) and (7) and s 103 of the Act. These sections read as follows:
"102. Exemption from expenditure conditions
(2)A certificate of exemption may be granted for any of the following reasons ‑
(a)that the title to the mining tenement is in dispute;
(b)that time is required to evaluate work done on the mining tenement, to plan future exploration or mining or raise capital therefor;
…
(3)Notwithstanding that the reasons given for the application for exemption are not amongst those set out in subsection (2), a certificate of exemption may also be granted for any other reason which may be prescribed or which in the opinion of the Minister is sufficient to justify such exemption.
(4)When consideration is given to an application for exemption regard shall be had to the current grounds upon which exemptions have been granted and to the work done and the money spent on the mining tenement by the holder thereof.
(5)An application for exemption –
(a)where an objection to the application is lodged, shall be heard by the warden in open court; but
(b)otherwise, shall be forwarded to the Minister for determination by the Minister.
(6)The warden shall as soon as practicable after the hearing of the application transmit to the Minister for his consideration the notes of evidence and any maps or other documents referred to therein and his report recommending the granting or refusal of the application and setting out his reasons for that recommendation.
(7)Where the warden finds that the reasons given by the holder of the mining lease are sufficient to justify the granting of a certificate of exemption and so recommends, or if the Minister is satisfied whether or not a recommendation is made by the warden, the Minister may grant a certificate of exemption in an amount not exceeding the amount required to be expended in respect of the mining lease in the period of 5 years from the commencement of the year to which the application relates.
…
103.Effect of exemption
Upon the granting of a certificate of exemption pursuant to section 102 or section 102A the holder of a mining tenement to whom it is granted shall be deemed to be relieved, to the extent, and subject to the conditions specified in the certificate, from his obligations under the prescribed expenditure conditions relating to the mining tenement."
In his submissions, Haoma's counsel, Mr Lawton, said that his "primary contention" was that, because of the dispute which had arisen under the JVA, the title to the Linden Tenements was in dispute and s 102(2)(a) was consequently satisfied. He then went on to make the following submission:
"[Section] 102(2)(b) in my view is a subsidiary or secondary matter to that and it just follows logically that if the title to the tenement is in dispute then it cannot be until after the tenement title dispute is resolved that the applicant can then get on to evaluating the work, planning the future exploration or doing whatever else is necessary. That is just a logical consequence of 102(2)(a) or of the tenement dispute.
My submission would be, my feeling would be rather than my submission, that were you not to be satisfied with 102(2)(a) then it is highly likely that you would not be satisfied with 102(2)(b) as a logical consequence as night follows day. The dispute has got to be resolved before the tenement holder is free to deal with this tenement.
102(3), which is generally the catch‑all, we possibly find a little bit difficult to put into words but it really is a matter of saying to all this, 'Look, here is the history of the way this tenement holder has dealt with these tenements and this area and in those circumstances it is only just and reasonable that the exemption be granted.' It is really to cover the situation where if for some technical reason you decide that 102(2)(a) is not made out, the same facts and circumstances justify the Minister on the basis of reasonableness in granting the exemption given the event. It is not a separate discrete ground in the sense of seeking to raise any new fact or any new issue. It is merely, as I say, there to cover the prospect that for some technical reason an argument on 102(2)(a) being [sic (not being)] made out."
When Mr Lawton came to deal with s 102(4), he said that it had only "limited" application, in the sense that if, in each of three years, applications for exemption were made, for example, under s 102(2)(b) upon the basis that time was required to evaluate work done on the mining tenement, by the third year the "story" would be "frazzled" and it would then "only be reasonable to give consideration to the current grounds upon which exemptions have been granted". He said that s 102(4) consequently had "a fairly limited application in terms of the application we have before you … and, really, it just does not apply because what is relevant is the black and white fact of whether the tenement title is in dispute". He went on to say, a little later, that the grant of a prior exemption could be either adverse or favourable and that, in this case, there had been an exemption upon the basis of the unresolved dispute with CGMA and it was reasonable that the same basis should justify a further exemption.
Mr Lawton made two further submissions in respect of s 102(4). The first was that s 102(4) did not contemplate a historical examination of the expenditure on a tenement outside the year under consideration as otherwise the validity of past exemptions would be undermined, as would s 96(2a) of the Act, which, with some exceptions, requires an application for forfeiture made under s 96(1)(b) for failure to meet expenditure conditions to be brought during the expenditure year in question or within eight months thereafter. The second submission was that, if consideration was given to past expenditure, the Warden should look at the whole of Haoma's expenditure on the group of tenements which it had held. He submitted that this demonstrated that, notwithstanding that there had been previous exemptions, Haoma's expenditure on its tenements had been considerable.
Tunza's objection to the grant of the exemptions and its grounds for forfeiture of the tenements were essentially that Haoma had made out no sufficient basis for an exemption, especially when regard was had to the fact of previous exemptions, and that it had repeatedly failed to comply with the expenditure requirements attaching to the Linden Tenements. Tunza's counsel, Mr Michael Workman, also contended that there was no dispute as regards Haoma's title to the Linden Tenements. He said that there was merely a dispute as regards the valuation of CGMA's interest in the joint venture.

The Warden's first decision

When he came to give his decision on 9 May 1997, the Warden ruled (for reasons which are not presently material) that the dispute between Haoma and CGMA had "the effect of creating the potential for it to be a dispute relating to the title of the mining tenements". He was consequently satisfied that Haoma had made out its case and said that he would be recommending to the Minister that the applications for exemption be granted.

The 1997 Full Court decision

Dissatisfied with the Warden's decision, Tunza applied to the Full Court of this Court for prerogative relief. Judgment on the application was given on 18 December 1997: Re Warden Heaney; Ex parte Tunza Holdings Pty Ltd v Haoma Mining NL (1997) 18 WAR 420. The Court (Malcolm CJ, Ipp and Murray JJ) found that there had been an error of law on the face of the record in that the dispute between Haoma and CGMA was properly characterised as one about price and not one about title. It also found that the decision of the Warden as to what recommendation to make to the Minister was one which had the requisite legal effect upon rights to attract certiorari, as to which see Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 165 and 174, per Brennan CJ, Gaudron and Gummow JJ. The Court consequently quashed the decision of the Warden.

The Warden's second decision

The matter went back to the Warden for reconsideration in the light of the judgment of the Full Court. He made a second decision on 21 May 1998. In it, he said, so far as each application under s 102(2)(a) was concerned, that, having been corrected by the Full Court as regards his mistaken conclusion that the title to the mining tenements was in dispute, his recommendation to the Minister was that the applications for exemption be refused. As regards the application under s 102(2)(b), he said that no evidence had been given in that respect by Haoma. Finally, so far as s 102(3) was concerned, he said that the decision of the Full Court did not require that the parties be given the opportunity to make further submissions in that regard and, more fundamentally, that the opinion to be formed under that section was that of the Minister and that a Warden had no capacity to make a recommendation in respect of an application under that section.

The 1998 Full Court decision

Haoma applied to the Full Court for an order quashing the Warden's decision. The application succeeded: Re Heaney SM; Ex parte Haoma Mining NL v Tunza Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 980738; 18 December 1998.
The lead judgment was given by Murray J. Wallwork J agreed with him and Kennedy J expressed general agreement with his reasons. Murray J said (page 8 of his reasons), of the submissions which had been made by Mr Lawton on behalf of Haoma:
"It seems to me to be perfectly clear that counsel explained that Haoma's application was firstly based upon its contention that the dispute between the joint venturers, to which I have referred briefly, was one which could properly be regarded as putting the title to the prospecting licences in dispute. If that were so, or in any event, a consequence of the dispute was asserted to be that it would not be reasonable to require Haoma as the holder of the prospecting licences to spend money on them while the dispute remained unresolved. Only after the dispute was resolved would it be appropriate for Haoma to evaluate what work had already been done, to plan future exploration and to consider capital raising. Hence the reliance upon s102(2)(b). Further, counsel submitted that if for some technical reason the grounds upon which it sought exemption did not fit within s102(2) and specifically par(a) of that subsection, they were nonetheless good grounds and might constitute a reason which, in the opinion of the Minister, was sufficient to justify the exemption sought in the manner referred to in s102(3). The matter was then fully argued upon the affidavit evidence."
He then went on (pages 14 and 15 of his reasons) to refer to the fact that, in April 1997, Haoma's counsel had submitted to the Warden that Haoma could not reasonably be required to expend money upon the Linden Tenements until its dispute in connection with the JVA was resolved and that the Warden had erred in concluding that, merely because the dispute was not one as to title, it followed that he should recommend that the applications be refused. He said, in this last respect, that (page 15):
"[T]he report reveals that his Worship erred as a matter of law in making his recommendation. He seems to have taken the view that if it was not possible to consider the reasons for exemption advanced by Haoma in the context of s102(2)(a), there was no need to do so in the context of s102(2)(b) and he further considered that there was nothing to be said by him in the context of s102(3).
He appears to have thought that, having correctly drawn from the Full Court decision the fact that the dispute which was central to the reason for which the Application for Exemption was made was not a dispute as to the title to the prospecting licences, it followed that his recommendation approving the grant of exemption should be reversed to a recommendation that the Application for Exemption be refused. Clearly that does not follow and that his Worship so concluded in my opinion reveals a fundamental misunderstanding of the section and his obligation under it to make a recommendation. The section as a whole is framed in such a way as to make it clear that the Warden's attention was required to be given to the merits of the reasons put forward by Haoma to justify the grant of a certificate of exemption and this his recommendation expressly does not do."

Then, after considering the Warden's obligations under s 102(3), Murray J arrived at the conclusion that the Warden had erred, also, in his conclusion that he had no capacity to make a recommendation under that section. After saying that, for all of the reasons which he had given, the Warden's decision should be quashed, Murray J went on to say (page 17):
"The effect would be that the Warden would be required to review the material presented to him at the hearing and consider the submissions made at that time. He would be required to present his report anew, including in it his recommendation as to the grant or refusal of the application and giving his reasons for his conclusion. In so doing he would be required to address the merits of the case, although no doubt he would add an observation as to whether or not he saw the case as one falling within s102(2)(b) to any degree."
Kennedy J, who, as I have said, was in general agreement with Murray J, added a number of comments of his own concerning his conclusion that the Warden had erred in failing to make a recommendation under s 102(3) and to forward to the Minister the reasons for his recommendation.

The Warden's third decision

After the matter had come again before the Warden pursuant to the decision of the Full Court, he published his third decision on 11 October 1999.
First, the Warden took issue with what had been said by Murray J in the 1998 Full Court decision. He said (pages 8 and 9 of his decision, the underlining being that of the Warden):
"I will firstly respond to Murray J's reference to the application for exemption pursuant to Section 102(2)(a) and 102(2)(b). He stated that my reasoning in my second recommendation to the Minister wherein I reversed my first recommendation 'reveals a fundamental misunderstanding of this section.' My decision to reverse my first recommendation to the Minister was not based on an understanding or otherwise of the relevant section. It was based on the manner in which Mr Lawton conducted the case on behalf of Haoma. It will be recalled that at the very beginning of the trial Mr Workman asked Mr Lawton to particularise his application for exemption pursuant to Section 102(2)(a) and 102(2)(b). Mr Lawton gave his response and summed it up by saying:-
'my submission would be that were you not to be satisfied with 102(2)(a) then it is highly likely that you would not be satisfied with 102(2)(b) as a logical consequence as night follows day.'
He also said at page 127 in his final submissions of the transcript:-
'I have openly said in relation to ground 102(2)(b) that it is not a matter for evidence, it is a matter for common sense. That is certainly a separate matter to our application under 102(2)(a) and if 102(2)(a) falls away then 102(2)(b) will naturally fall away because one is dependant upon the other.'
Pursuant to the manner of his presentation of his application Mr Lawton did not produce one scintilla of evidence pursuant to 102(2)(b), he made no submissions in respect of 102(2)(b) except as I have indicated above and more significantly by presenting his application in that manner Mr Workman did not respond to 102(2)(b) and in fact had nothing to respond to. Mr Lawton cannot now argue that even though the Full Court has now said that it was not a dispute as to title [Section 102(2)(a)], 'that time is required to evaluate work done on the mining tenement to plan future exploration or mining or raise capital therefor', [Section 102(2)(b)]. The application under 102(2)(b) was not an independent and discrete application at the trial and it cannot become so now. Mr Lawton chose to conduct his case in the manner that he did. He is stuck with that.
In respect of the application pursuant to Sections 102(2)(a) and 102(2)(b) I will be recommending to the Minister that the application for exemption in respect of Prospecting Licences 39/2974, 39/2975 and 39/2976 he [sic (be)] refused."
The Warden then turned to what had been said by Murray J as regards s 102(3). He said, in that regard (pages 9, 10 and 11 of his decision, the underlining being that of the Warden):
"Again let me go back to the beginning of the trial where Mr Workman asked Mr Lawton to particularise his application pursuant to 102(3). Mr Lawton's response, in part, was as follows:-
'Section 102(3), which is generally the catch all we possibly find a little bit difficult to put into words but it really is a matter of saying to all this "look here is the history of the way this tenement holder had dealt with these tenements and this area, and in those circumstances it is only just and reasonable that the exemption be granted." It is to cover the situation where if for some technical reason you decide 102(2)(a) is not made out the same facts and circumstances justify the Minister on the basis of reasonableness, in granting the exemption given the event. It is not a separate discrete ground in the sense of seeking to raise any new fact or any new issue.'
As a result of this approach by Mr Lawton to his application pursuant to Section 102(3) he called no evidence specifically relating to that section. He relied on the evidence that there was a dispute to title.
There was however, other evidence produced in respect of these 3 tenements but it was brought by Mr Workman. In my first recommendation to the Minister back in 1997 I looked at the application pursuant to Section 102(3) and at page 9 of that recommendation I stated:-
'In the course of these proceedings the evidence revealed that the three tenements for which exemption is sought are part of a larger body of tenements which were subject to the joint venture agreement between Haoma and C.G.M.A. The dispute as to title which Haoma seeks to rely on for its application for exemption is relevant to all the tenements and not just the three before this Court. In respect of some of those tenements no application for exemption is made because expenditure in excess of the minimum requirement has been made. The objector argues that Haoma's application in respect of these three tenements is not genuine because if the title dispute prevents Haoma from spending money in respect of those three tenements why does it not prevent it from spending money in respect of all the tenements. Mr Lawton for Haoma responded by saying that his client "is damned if it does and damned if it doesn't". Hs client is criticised for not spending money in respect of these three tenements and is also criticised for spending money on other tenements. He argues that the fact that his client is prepared to spend money on these tenements even though the title to those tenements is in dispute is an indication that it has a genuine interest in conducting exemption in respect of this project. I accept Mr Lawton's argument on this point.'
That acceptance by myself of Mr Lawton's argument was premised on my belief that Haoma had a 'dispute as to title.' Having been corrected by the Chief Justice in that respect, I no longer maintain that position. There being no dispute as to title, not only was Haoma required to spend money in respect of the other tenements it was also required to spend money in respect of the three tenements we are concerned with, and its failure to do so was in breach of its obligations to do so."
After mentioning that his previous decision to grant exemptions in respect of the Linden Tenements for the same reasons as were now advanced had been made in a context in which there had been no objection to the applications, the Warden went on to say (page 11):
"Further evidence was adduced by Mr Workman that for the previous seven years between 1988 and 1995 that [sic] Haoma has spent only 8.5 per cent of its expenditure over that ground. That 8.5% represents $22,500.00 out of a minimum requirement of $268,000.00.
Because of this lack of expenditure by Haoma over an extended period of time, in respect of the applications for exemption pursuant to Section 102(3) I will be recommending to the Minister that these applications for exemption from expenditure be refused."

The 2001 Full Court decision

Haoma applied, once again, to the Full Court to quash the Warden's decision. Again, the application was successful: Haoma Mining NL v Tunza Holdings Pty Ltd [2001] WASCA 123. The lead judgment was given by Wallwork J, with whom Malcolm CJ and Pidgeon J were in agreement. He concluded (at [44] and [48] of his reasons) that the Warden had not dealt with the merits of the applications under s 102(2)(b) and s 102(3), insofar as the dispute was relied upon for the purposes of those sections. Then, at [49] ‑ [50], he dealt with the Warden's conclusion concerning Haoma's lack of expenditure on the Linden Tenements. He said, in this respect:
"No mention is … made as to whether or not there might have been good reasons for that lack of expenditure, for example, previous exemptions, the dispute between the joint venturers, the fact that in 1988 there had apparently been the sum of $360,346 spent on the areas covered by the agreement when the minimum requirement had been only $67,500, or the fact that, apparently, between 1988 and 1993, there had been $371,046 outlaid in connection with the area of the joint venture, when the minimum requirement had been $293,800.
In the words of Murray J, the learned Warden 'seems not to have addressed the merits of the case put before him.'"
Wallwork J went on to say, at [56], that "the history of the expenditure and the prior exemptions granted may have been important considerations in considering the applications" and that these "were not sufficiently referred to by the … Warden" in the context of the "merits of the case put before him" and, at [57], that "[t]here had been no inquiry by the Warden into the relevant background of the tenements or into the reasons for which exemptions had been granted over a sustained period".
Malcolm CJ, who, as I have said, agreed with Wallwork J, added a number of comments of his own. He said, at [19], that the existence of a dispute about valuation was a relevant consideration in relation to the tenements and it was not appropriate to conclude that it necessarily followed that Haoma was in breach of its obligations. He went on to say (ibid):
"The Warden's contention [sic (conclusion)] did not dealt [sic] with the ground of the application under s 102(b) in terms of time 'required to evaluate work done on the tenement, to plan for future mining, or raise capital therefor'. It also did not deal with the ground under s 102(3) in terms of:
' … any other reason … which in the opinion of the Minister is sufficient to justify such exemption.'"
Malcolm CJ was also critical (at [20]) of the Warden's failure to have regard to the total amount expended on all of the tenements the subject of the joint venture and to the merits of the grounds upon which previous exemptions had been granted. He also said (ibid) that account did not appear to have been taken of the dispute between Haoma and CGMA "regarding the value of the tenements".

The Warden's fourth decision

On 3 September 2003 the Warden produced his fourth decision, after the matter had again been returned to him. After referring, at some length, to the submissions which had been made at the hearing in April 1997, he said (page 12 of his reasons) that, in summary, Haoma's case had been that the only issue had been "the 'black and white' 'non discretionary' nature of 102(2)(a), namely the dispute as to title". He quoted, in that regard, what had been said by Mr Lawton on Haoma's behalf (much of this has been quoted earlier in these reasons). He went on to say (page 12) that Haoma had had, and had taken, the opportunity to define the issues to be determined, that it had produced evidence and made submissions which were consistent with the limited case advanced by it and that it had not produced any evidence or made any submissions in respect of s 102(2)(b) and s 102(4). As to s 102(3), he said that Haoma had relied on the evidence "produced pursuant to s 102(2)(a)" and that Mr Lawton had said that s 102(3) was "not a separate discrete ground in the sense of seeking to raise any new fact or any new issue". He went on to say (page 13):
"The consequences that flow, from stating his case in the manner he did, were that Mr Workman for the objector brought no evidence and made no submissions in respect of Section 102 (2)(b). Mr Workman did produce evidence in respect of 102 (3) and 102 (4) but the evidence he produced was clearly directed at persuading the Warden to make a recommendation for refusal of the application. This evidence was available to Mr Lawton on behalf of the applicant but he elected not to bring it and he elected not to rely on Section 102 (3) and 102 (4) because he knew it was not favourable, and in fact, detrimental to have done so."
Then, after having referred to other submissions which had been made by Mr Lawton, the Warden said (page 13, the underlining being that of the Warden):
"It should be noted that previous exemptions were granted on the same ground, that there was a dispute as to title, but in respect of those applications the issue was not tested and the applications granted administratively as no objections were lodged. Furthermore and of some significance, as will be seen later, the facts which justified previous exemptions, namely the dispute as to title, can no longer justify exemption as the Supreme Court has said that there is not a dispute as to title."
The Warden then turned to the issues which had given rise to the 1998 Full Court decision. He said, of that decision (page 16):
"I was somewhat surprised by the suggestion of Kennedy J that all three grounds for the granting of the exemption certificates had been fully argued before me at trial. This clearly was not the case and I referred earlier to Mr Lawton's specific statement at page 5 of the transcript that read:
' …… 102 (2)(b) in my view is a subsidiary or secondary matter and it just follows logically that if the title to the tenement is in dispute then it cannot be until after the tenement title dispute is resolved that the applicant can then get on to evaluating work, planning the future exploration or doing whatever else is necessary.'
Mr Lawton is clearly saying that he has no evidence to give relating to Section 102 (2)(b) as his client can do nothing in that regard until the dispute as to title is resolved. His client has not even reached the stage where he can say 'that time is required to evaluate work done on the mining tenement to plan future exploration or raise capital therefore [sic]'. [Section 102 (2)(b)] This is not my assessment of what Mr Lawton's case is in respect of Section 102 (2)(b). It is what he has said is his case in respect of Section 102 (2)(b). At the trial of this matter Mr Lawton could not and did not argue that the expenditure requirements were not met because time was required to evaluate work done, plan future exploration or raise capital."
The Warden then dealt with the issues which had given rise to the 2001 Full Court decision. Once again, he was critical of what had been said of him. After referring to some of what had been said by Wallwork J, he said (pages 18 and 19):
"The first comment I would make is that the hearing I conducted in April 1997 related to the expenditure year ending May 1995 and related to 3 specific tenements. Money spent in 1988 some 7 years earlier and money spent between 1988 and 1993, not in respect of these 3 tenements, but in all areas covered by the agreement of the joint venturers may well be of no benefit to an applicant for exemption in 1995.
Mr Lawton made no mention of that money being spent [,] it in fact came from Mr Workman. Money spent earlier on the life of a tenement followed by a notable lack of expenditure, albeit covered by certificates of exemption, in later years may well be an indication that a tenement holder has lost interest in the tenement. And if a tenement holder has lost interest in a tenement his [sic] is required to let the tenement go to someone who is interested in working it. The system does not encourage tenement warehousing.
Wallwork J also indicated that I had conducted no inquiry into the relevant background of the tenement or into the reasons for which exemptions have been granted over a sustained period. With respect I disagree with that statement. Mr Workman in fact produced considerable evidence in that regard. It is significant to note that this evidence was brought to the Wardens Court by Mr Workman and not Mr Lawton. It was clearly evidence that was available to Mr Lawton but which he chose not to bring. It was evidence in support of Mr Workman's Plaint and his objection to the exemption application and to the detriment of Mr Lawton's application for exemption."
The Warden then returned to the issues before him. In dealing with that arising under s 102(2)(b) of the Act he returned, yet again, to the submissions which had been made by Mr Lawton on behalf of Haoma. He said, in that regard (pages 20 and 21, the underlining being that of the Warden):
"In respect of this ground Mr Lawton stated at page 5 of the transcript:
'That is the primary contention in this matter and that is the fact that the evidence will be directed to prove that the title to the tenement is in dispute.
102 (2)(b) in my view is a subsidiary or secondary matter to that and it just follows logically that if the title to the tenement is in dispute then it cannot be until after the tenement title dispute is resolved that the applicant can then get on to evaluating the work, planning the future explorations doing whatever else is necessary. That is just a logical consequence of 102 (2)(a) or the tenement dispute.
…… my feeling would be that were you not to be satisfied with 102 (2)(a) then it is highly likely that you would not be satisfied with 102 (2)(b) as a logical consequence as night follows day.'
At pages 16 and 17 of the transcript Mr Lawton stated 'All of those clauses have built into them some sort of test of what is reasonable, and one can clearly see that if a person came year after year seeking an exemption on the basis that time is required to evaluate work, for the first year that might be reasonable, they could put a reasonable facts scenario up to the Warden and show that that was justified. For the second year the story might wear a bit thin, and the third year I would say it is not just thin it would be frazzled.
At page 127 of the transcript in his response to Mr Workman's submissions Mr Lawton stated:
'I have openly said in relation to ground 102 (2)(b) that it is not a matter of evidence it is a matter of common sense. That is certainly a separate matter to our application under 102 (2)(a) and if 102 (2)(a) falls away then 102 (2)(b) will naturally fall away because one is dependent on the other.'"
The Warden then turned to what he regarded as the "necessary elements for which … [Haoma was] required to present evidence in support of [s] 102(2)(b)", saying that they were as follows:
"(1)Time Required to Evaluate Work Done
•What work has been done requiring evaluation.
•What evaluation of such work is necessary.
•Why time is required to evaluate such work previously done.
(2).Time required to Plan Future Exploration
•What exploration is planned.
•Why time is required to plan such future exploration.
(3).Time Required to Plan Future Mining
•What mining is proposed with respect to the tenements.
•Why time is required to plan such proposed mining.
(4).Time Required to Raise Capital for Evaluation of Work or For Future Exploration of [sic (or)] For Future Mining
•The anticipated or estimated cost to evaluate work done or for future exploration or for future mining.
•The current resources of the Applicant being insufficient to evaluate work done or for future exploration or for future mining.
•Why time is required to raise capital in each case."

Having set out those elements, the Warden went on to say (page 22):
"There is no evidence of the nature referred to in items 1 to 4 above, before me. The affidavit submitted on behalf of Haoma goes only to the title dispute. This is not surprising however given Mr Lawton's submissions in respect of Section 102 (2)(b).
Given Mr Lawton's submissions in respect of Section 102 (2)(b) and the absence of any evidence in respect of Section (2)(b), Mr Workman presented no evidence in response and the only submission he made in respect of Section 102 (2)(b) was to acknowledge that no evidence of any sufficient standard to suggest that Haoma requires time to evaluate work done, or the [sic] plan future exploration or future mining, was produced.
Pursuant to this ground I recommend to the Minister that the certificate of exemption not be granted."
The Warden then dealt with s 102(3) of the Act. After reciting the terms of that section, he said that the only evidence which had been advanced on behalf of Haoma was the Lawton affidavit which, he said (page 23), "consisted of evidence of the dispute between … [Haoma] and … [CGMA], and which Mr Lawton relied onto [sic] ground it [sic] claim pursuant to Section 102 (2)(a)."
Then, having repeated submissions which had been made by Mr Lawton in respect of s 102(3) (these have been quoted above), he said that the consequence of these was that Haoma had "produced no other evidence specifically relating to Section 102(3)". He went on to say (page 24):
"By contrast Mr Workman for TUNZA produced substantial evidence designed to persuade the Minister that the application for exemption should not be granted. This evidence constituted the history of HAOMA's involvement with there [sic] tenements and the tenements of the joint venture and their expenditure in respect of these tenements.
It is of significance that this evidence is brought to the court by the objector to the application for exemption rather than the applicant. It is also significant that Mr Lawton had attempted to limit the application of Section 102 (3) to the evidence he produced which primarily related to his application pursuant to Section 102 (2)(a).
It is significant because it is a clear indication that Mr Lawton perceives that the previous involvement of HAOMA with those tenements is not conducive to these applications for exemption being successful. As he indicated at page 16 of the transcript when one makes an application for exemption on the same grounds for three years in a row then the 'story becomes frazzled.'"
The Warden then set out what he considered to be the relevant overall history of Haoma's expenditure and exemptions on the Linden and other tenements between August 1987 and August 1996, mentioning, separately, the history of expenditure and exemptions on the Linden Tenements between May 1993 and May 1995. The overall history revealed that, between August 1987 and August 1992, the Linden Tenements had formed part of Mining Lease M39/105, but that, by May 1993, tenement M39/105 had been "downgraded" to a series of Prospecting Licences encompassing the Linden Tenements. In the course of reciting this history, the Warden remarked that, in the seven years since August 1988 (discounting the year which ended in August 1988, in which Haoma had spent almost $300,000 more than it had needed to on Mining Lease M39/105), Haoma had expended only 8.5 per cent of its required expenditure, a calculation which took no account of the existence of certificates of exemption which had earlier been referred to by the Warden and which had been granted in respect of the tenements concerned. Then, after referring to what had been said by Rowland J in Nova Resources NL v French (1995) 12 WAR 50, as regards relevant objects of the Act including that of ensuring that there is exploration and mining of land with that potential, he said (page 31):
"Clearly HAOMA demonstrates no intention of making the LINDEN tenements available for mining, and in fact they have been regressed from being part of a mining lease to a prospecting lease, and for the past 7 years the exploration has been minimal and reduced to zero for the expenditure years that these proceedings are concerned with.
Accordingly to [sic] HAOMAS [sic] application for exemption pursuant to Section 102 (3) is rejected."
Finally, the Warden turned to s 102(4) of the Act. After reciting what had been said by Mr Lawton in that regard (again, this has been quoted earlier in these reasons), and after mentioning what had been said by Wallwork J as regards the Warden's failure to make an inquiry into the relevant background of the tenements, he said (pages 32 and 33):
"Be that as it may in my considerations pursuant to Section 102 (3) I have conducted the inquiry into the relevant background of the tenements which Wallwork J said I had failed to do so.
This inquiry reveals that Section 102 (4) is of no assistance to HAOMA and in fact it is damming [sic] of the application.
Accordingly my recommendations to the Minister, taking into consideration each of the 4 grounds of the application for exemption made by HAOMA, is that these applications for exemption be refused."

The grounds for relief in this action

That brings me, at last, to the order nisi which has been made in this case. The grounds upon which Haoma seeks the issue of a writ of certiorari for the purpose of quashing the Warden's fourth decision are as follows:
"(a)the Warden failed to give any or any proper consideration to the question whether the dispute between Haoma and its joint venture partner was a good and sufficient reason for granting exemptions having regard to the evidence and submissions previously adduced by Haoma in support of applications for exemption pursuant to s.102(2)(a);
(b)the Warden, contrary to s.102(4), wrongly considered shortfalls in expenditure by Haoma in previous years for which exemption had been granted to Haoma, alternatively wrongly considered such shortfalls without regard to the fact that the grounds upon which previous exemptions had been granted did not form part of the current grounds in the application for exemption;
(c)the Warden took into account an irrelevant consideration, namely shortfalls in expenditure in previous years for which exemptions had been granted."
In the course of his oral submissions, counsel for the applicant said that these grounds raised two issues, the first (arising under ground (a)) being whether the Warden should have considered, but did not consider, the evidence of the dispute as to value as bearing upon the applications insofar as they were brought under s 102(2)(b) and s 102(3); and the second (arising under grounds (b) and (c)) being whether the Warden had impermissibly taken into account the failure to meet past expenditure requirements, given that they had been subject to certificates of exemption, or whether he had erred in taking these failures into account without having regard to the fact and circumstances of the prior exemptions.

Ground (a) - the dispute as to value and s 102(2)(b) and s 102(3)

The Full Court quite plainly accepted, in 1998 and again in 2001, that, in the course of his submissions made in April 1997, counsel for Haoma had relied upon the fact of the dispute between Haoma and CGMA in support of the applications, not only insofar as those applications relied upon s 102(2)(a) of the Act, but also insofar as they relied upon s 102(2)(b) and s 102(3). As will be apparent from what I have earlier said, Murray J, in the 1998 Full Court judgment, said (page 8 of his reasons) that it seemed to him to be "perfectly clear" that Haoma's counsel contended that it was a consequence of the dispute (whether or not the dispute was one as to title) that it would not be reasonable to require Haoma to spend money on the prospecting licences while the dispute remained unresolved and that only after the dispute was resolved would it be appropriate for Haoma to evaluate what work had already been done, to plan future exploration and to consider capital raising (see also page 14 of his reasons). He said that it was for that reason that Haoma had relied upon s 102(2)(b) and s 102(3). These comments were effectively adopted or repeated in the 2001 Full Court decision: see Malcolm CJ at [19] and Wallwork J at [36], [44] and [48].
It is also quite plain that the Full Court ruled that the Warden was obliged to consider, and rule upon, the submissions which had been made on behalf of Haoma in respect of s 102(2)(b) and s 102(3). That was the effect of what was said by Murray J, in 1998, in the passages which I have earlier quoted from pages 15 and 17 of his reasons. It was also the effect of what was said, in 2001, by each of Malcolm CJ, at [9] and [19] ‑ [21], and Wallwork J, at [44], [48] ‑ [52] and [60]. It was partly upon those very grounds that the Warden's third decision was quashed by the Court in 2001.
Consequently, the sole question, for the purpose of ground (a), is that of whether, in his fourth decision, the Warden has properly considered, and ruled upon, those submissions.
A reading of the Warden's judgment conveys a strong sense of dissatisfaction, on his part, with what had been said by the Full Court. He was at pains to repeat his understanding of the limited case that had been advanced on behalf of Haoma, reiterating, at length, what had been said by its counsel and stressing, on more than one occasion (pages 4, 12, 13 and 16 of his judgment) that he, and Tunza, could only deal with the issues as they had been advanced on behalf of Haoma. As will be apparent, he said, in this regard (at page 12), that Mr Lawton had not produced any evidence or made any submission in respect of s 102(2)(b) and that he had said of s 102(3) (in respect of which he led no additional evidence) that this was not a discrete ground in the sense of seeking to raise any new fact or any new issue.
The Warden's comment in respect of s 102(2)(b) ignored the effect of the Full Court's ruling that Mr Lawton had produced evidence of the fact of the dispute and that, even if he had incorrectly identified it as a dispute in respect of title, he had relied upon its existence in his submissions concerning s 102(2)(b) (albeit, I should add, with no explanation of why, if it was not a dispute as to title, it should have resulted in time being required to evaluate work done on the mining tenement, to plan future exploration or mining or raise capital therefor). Also, while the Warden was right to say that no new fact or issue had been raised under s 102(3), it was quite plain, as the Full Court had pointed out, that Haoma had relied, in that regard also, upon the fact of the dispute (albeit, once again, with no explanation as to why it should have been a reason sufficient to justify an exemption if the dispute was not one in respect of title).
However, as I understand the Warden's judgment, having expressed his dissatisfaction with what had been said by the Full Court, he turned to deal with the grounds which, he said, the Full Court had required him to address, these being, as he understood the position, "grounds … pursuant to" each of Sections 102(2)(a), 102(2)(b), 102(3) and 102(4) of the Act. He referred, first, to the 1997 Full Court decision, saying that s 102(2)(a) was no longer an issue. He then turned to the other grounds, starting with that under s 102(2)(b).
As will be apparent, the Warden repeated (in extracts from his judgment which I have quoted above) what had been said by Mr Lawton in respect of this ground, underlining those parts of his submissions which, as the Warden understood the position, linked the argument under s 102(2)(b) with that which had been advanced under s 102(2)(a). Then, as will also be apparent, the Warden identified the elements upon which, in his opinion, Haoma had been required to present evidence if it was to rely upon s 102(2)(b). He concluded (on page 22) that there was no evidence of that kind, but only evidence of "the title dispute". He then remarked that the absence of any evidence of the required kind, taken with the limited submission which had been made by Mr Lawton in respect of s 102(2)(b), had resulted in Tunza presenting no evidence "in response". Against that background, he recommended to the Minister that the certificate of exemption not be granted.
The Warden adopted a similar approach as regards s 102(3). As I have earlier mentioned, he again repeated what had been said by Mr Lawton in that respect, saying that the consequence of what Mr Lawton had said was that Haoma had produced "no other evidence specifically relating to Section 102(3)". However, he went on to examine, in the manner that I have earlier described, the evidence which had been adduced on behalf of Tunza as regards the history of, and expenditure upon, the Linden and other tenements held by Haoma. As I have said, he concluded that Haoma had demonstrated no intention of making the Linden Tenements available for mining and that Haoma's application for exemption should accordingly be rejected.
The Warden's defence of his previous position, and his repeated assertions that Mr Lawton had relied only upon a dispute in respect of title, are relied upon by Haoma in support of its submission that the Warden has steadfastly refused to accept the findings of the Full Court and to undertake the exercise which it regarded him as being obliged to take. While it seems to me that the Warden's vigorous defence of his previous understanding does, with due respect, introduce an element of doubt as regards the approach adopted by him, I am satisfied that he did, in the end, undertake the exercise which the Full Court had required him to undertake. As I read his judgment, the Warden concluded (however he might previously have understood the case advanced on behalf of Haoma and however much he might have believed that his conclusion in that respect was justified) that, if the dispute was not one as regards title, its mere existence could not, of itself, provide any sufficient basis for the conclusion that more time was required for any of the purposes identified by s 102(2)(b). He also concluded that the existence of the dispute could not, of itself, amount to "any other reason" which might be sufficient to satisfy the Minister that an exemption was justified. He pointed out that there was no evidence, or even any submission, to that effect.
While that is enough to dispose of ground (a), I should add that it seems to me that the conclusion at which the Warden arrived has much to commend it. As was acknowledged by senior counsel for Haoma during the course of argument, the fact that Haoma would acquire CGMA's interest in the joint venture was not in doubt, the only question which remained open was that of what it would pay for that interest. Haoma had adduced no evidence of its financial circumstances (I have said that the expenditure requirement for the year in question was only $16,800) and nor did it suggest to the Warden any reason why uncertainty as to the price of the interest to be acquired by it should lead to any delay in evaluating work done, planning future exploration or mining, or raising capital, even if a suggestion of that kind could properly have been advanced in the absence of supporting evidence.
Ground (a) of the order nisi consequently fails.

Grounds (b) and (c) - s 102(3) read with s 102(4)

It is convenient, in dealing with grounds (b) and (c), to start with a consideration of s 102(4). I have earlier set out its provisions. The section requires that, when consideration is given to an application for exemption, regard must be had "to the current grounds upon which exemptions have been granted" and also to work done and money spent on the mining tenement by its holder. It is only the quoted phrase which gives rise to any difficulty of construction for present purposes.
The parties posited three alternative constructions of the phrase, none of which is aided by an examination of the legislative history. The first is that the word "current" should be ignored and that the quoted phrase should be read as referring to any grounds upon which exemptions had previously been granted in respect of the tenement in question. The second is that the phrase should be understood as if it read, "regard shall be had to the grounds upon which exemptions are currently being granted by the Minister". The third is that the phrase should be read as requiring that regard be had to those of the current grounds relied upon for exemption as have previously resulted in the grant of an exemption or exemptions in respect of the tenement under consideration.
As to the first of the suggested constructions, I can see no justification for ignoring the word "current". Courts are required to give effect to all of the words of a statutory provision, where that can sensibly be done. As I shall explain when I come to deal with the third of the suggested constructions, it seems to me that the phrase is capable of being sensibly construed so as to give effect to all of the words used.
The second suggested construction seems to me to do some violence to the language of the section. The legislative command is to have regard to the current grounds upon which exemptions "have been" granted. The word "current" plainly qualifies the word "grounds" and the command is to look back at what has previously been done in respect of those grounds. Had the legislature intended to refer to grounds upon which exemptions are "currently being granted" it could very simply have said so.
The third construction seems to me to be the only tenable one. It gives effect to all of the words of the phrase in a way which results in a reasonably sensible construction. I can see nothing untoward in a construction which requires that, in considering an application for exemption, regard must be had to current grounds which have previously resulted in exemptions. The legislature may well have thought that the fact of a prior exemption on the same ground was especially relevant. So, for example, it might, depending on the circumstances, indicate that, as a matter of consistent decision making, a similar exemption should again be given. Alternatively, the fact of repeated applications based upon the same ground might cast doubt on the ability, or willingness, of the tenement holder to satisfy the prescribed conditions attaching to the grant of the tenement.
If s 102(4) is construed in this way, as in my opinion it should be, the section seems to me to be of no assistance to the applicant in this case. I have mentioned that the applicant's first contention, under this heading, is that previous shortfalls in meeting prescribed expenditure cannot be considered at all in circumstances in which those shortfalls have been permitted by certificates of exemption. In my opinion, not only can they be taken into account, the effect of the section is, as I have said, that they must be taken into account where the same ground for exemption is relied upon for a further exemption. Moreover, the fact that s 102(4) requires that consideration must be given to the current grounds upon which exemptions have previously been granted (and, importantly, also to work done and money spent on the tenement by its holder), does not mean that the decision‑maker may not have regard to other matters, including previous failures to meet prescribed expenditure which were the subject of certificates of exemption granted upon different grounds to those raised in the current application. If the previous failures are reasonably considered to be relevant to the question whether a further certificate of exemption should issue, there is, as I read the section, nothing in it which prevents them from being taken into account.
Counsel for Haoma submitted, in this respect, that, if shortfalls in expenditure in respect of which certificates of exemption had been granted could be a relevant consideration when contemplating an adverse recommendation in the case of a subsequent application for an exemption, that would undermine each of s 103 and s 96(2a) of the Act. Section 103 (quoted earlier in these reasons), provides that the beneficiary of a certificate of exemption is deemed to be relieved, to the extent certified, from its obligations under the prescribed expenditure conditions. Section 96(2a), (also mentioned earlier in these reasons) provides, when read with s 96, that an application for forfeiture of a prospecting or miscellaneous licence bought by a person (other than "the Minister or any mining registrar or other [authorised] officer of the Department") for failure to comply with expenditure conditions "shall be made during the expenditure year in relation to which the requirement is not complied with or within eight months thereafter, and not otherwise".

In my opinion neither section would be undermined by having regard to the matters referred to.
As to s 103, certificates of exemption, once granted, relieve the tenement holder of specified obligations for a specified period. The mere fact that the Warden (or the Minister) might conclude, after reviewing the history of a particular tenement, that the fact of repeated prior applications for exemptions (even if successful) is suggestive of an unwillingness or inability to explore the tenement, or to mine it, as the case may be, and hence that it is a matter to be taken into account in considering whether or not to grant a further exemption, does not detract from the effect of the previous exemptions. Their only effect was, and remains, that of relieving the tenement holder of its obligation for the period and to the extent certified. That effect is not undermined because the exemptions might later be looked at, in the context of a fresh application for exemption, for the purpose of considering whether or not there is, in all of the circumstances, an unwillingness, or inability, to explore or mine the tenement within a reasonable timeframe.
As to s 96(2a), there is nothing in the fact of the refusal of an application for exemption, whether based in whole or in part upon the existence of a prior history of exemptions, which has the effect of extending, either directly or indirectly, the time within which an application for forfeiture might be brought under s 96(1)(b). The person referred to in that section is still required to bring an application for forfeiture during the expenditure year in relation to which the requirement is not complied with, or within eight months thereafter.
In my opinion it was consequently open to the Warden to take into account prior shortfalls in expenditure by Haoma even though exemptions had been granted in respect of them and regardless of the grounds upon which those exemptions had been granted, so long, of course, as he did not ignore the fact of the previous exemptions. In this case it is obvious from what was said by the Warden that he was well aware of the previous exemptions and of the fact that some of these had been based upon different grounds. He referred expressly to the exemptions, mentioning the provisions of the Act under which each had been granted. While it is true that his calculation that Haoma had expended only 8.5 per cent of the "required expenditure" took no account of the exemptions, that does not mean that he ignored them. It seems plain enough that, when considering whether or not there was "any other reason" for the grant of a further certificate of exemption, the Warden formed the opinion that the fact of a past failure to progress work on the tenements, even though there had

been exemptions from expenditure requirements, weighed against a further exemption in circumstances in which no adequate justification had been offered for the failure to meet the expenditure conditions for the current year. In my opinion there was nothing improper in that approach. No error of law has consequently been disclosed.

Grounds (b) and (c) of the order nisi accordingly fail.

Conclusion

It follows, from these conclusions, that the order nisi should be discharged.
WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.
PULLIN JA: The President has set out the history of the dispute in detail and it is not necessary for me to repeat it.
As the President says, two issues were raised. First, whether the Warden should have considered, but did not consider, the evidence of the dispute as to value when considering s 102(2)(b) and s 102(3). As to that issue I agree with the President's reasons.
The second issue was whether the Warden had impermissibly taken into account the failure to meet past expenditure requirements when there had been in existence certificates of exemption, or whether he had erred in taking these failures into account without having regard to the fact and circumstances of the prior exemptions.
The issue has arisen because of ambiguity which is contained within s 102(4) of the Mining Act 1978 (WA). In attempting to resolve the ambiguity it is necessary to have regard to the Act as a whole. Section 102 is concerned with exemptions from expenditure conditions attaching to a mining tenement. The Mining Act 1978 provides for the grant of mining tenements subject to conditions, and in particular conditions as to the expenditure of money in relation to tenements. The intention of the legislature revealed by reading the Act as a whole is that persons who secure a mining tenement should carry out work on or in relation to them if they are to retain title. In the case of a prospecting licence, the persons holding them should expend money in relation to prospecting for minerals on the tenements.

A person who meets the conditions and meets expenditure requirements will have a secure title. A person who holds a tenement but does not meet the expenditure requirements faces the possibility of forfeiture of the tenement. However, the Act also provides for a person to seek exemption from the expenditure conditions attaching to a mining tenement. It is the section dealing with exemptions - s 102 - which contains the ambiguity.
The first point to observe about the section is that it confers on the Minister a discretion to grant a certificate of exemption. Thus, a person who applies for exemption is in a less secure position than a person who meets the expenditure requirements. There is no guarantee that a person applying for a certificate of exemption will succeed in the application.
Section 102(2) sets out reasons which may result in the granting of a certificate of exemption. These all involve showing a state of affairs which exist at the time of the application. However, s 102(3) then confers a very broad discretion on the Minister to grant the application for exemption for reasons which are not amongst those set out in s 102(2) if in the opinion of the Minister the reason given "is sufficient to justify such exemption". When consideration is given to an application for a certificate of exemption, s 102(4) sets forth a relevant consideration which must be taken into account in the exercise of the discretion. The subsection reads:
"When consideration is given to an application for exemption regard shall be had to the current grounds upon which exemptions have been granted and to the work done and the money spent on the mining tenement by the holder thereof."
The word "current" may mean "in vogue": see "Macquarie Dictionary". If that is the intended meaning of the word, then the phrase "current grounds on which exemptions have been granted" means that the Minister should take into account grounds upon which exemptions have been granted by the Minister in relation to other unrelated tenements. That construction seems untenable because the rest of the words in subs (4) make it clear that attention is being focused on the mining tenement which is under consideration. I agree with the President when he says that if the legislature intended to refer to grounds upon which exemptions are "currently being granted" it could very simply have said so.
An alternative construction is that the subsection means that consideration is required to be given to the "current" ("belonging to the time actually passing" - "Macquarie Dictionary") grounds relied upon for exemption if such grounds have previously resulted in the grant of an exemption or exemptions in respect of the tenement under consideration. I agree with the President that this is the correct construction. In other words, if the same grounds have been relied upon in the past, then it is relevant to take into consideration that fact when considering the application for exemption which is then to be decided. This seems similar to but more confined than the third possible construction which involves reading the section by ignoring the word "current". I agree with the President that the word should not be ignored.
I agree with the President that the order nisi should be discharged.