Hawks v Shadmar Pty Ltd
[2004] WASC 252
•26 NOVEMBER 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: HAWKS & ANOR -v- SHADMAR PTY LTD & ANOR [2004] WASC 252
CORAM: LE MIERE J
HEARD: 27 MAY 2004
DELIVERED : 26 NOVEMBER 2004
FILE NO/S: CIV 2348 of 2003
BETWEEN: GRAHAM ALFRED HAWKS
First Applicant
WESTERN RESOURCES AND EXPLORATION PTY LTD
Second ApplicantAND
SHADMAR PTY LTD
First RespondentGREGORY PAUL MARTIN
Second Respondent
FILE NO/S :CIV 1239 of 2004
BETWEEN :GREGORY PAUL MARTIN
First Plaintiff
SHADMAR PTY LTD
Second PlaintiffAND
GRAHAM ALFRED HAWKS
First DefendantWESTERN RESOURCES AND EXPLORATION PTY LTD
Second Defendant
Catchwords:
Case stated - Originating summons for declaration - Whether warden has jurisdiction to hear and determine plaintiffs' claim - Mining Act s 146 - Power to reserve questions of law for opinion of Supreme Court - Whether plaintiffs' action is an action in respect of a trust relating to mining tenements - Mining tenement means presently existing mining tenement
Warden's Court - Jurisdiction - Administrative function when hearing application for forfeiture - Jurisdiction to hear actions in respect of trusts relating to mining tenements or mining - Mining Act s 134 not a source of jurisdiction - Power to reopen decisions
Equity and Trusts - Constructive trust - Distinguished from express and resulting or implied trusts - Remedial character of constructive trust
Legislation:
Mining Act, s 8, s 13, s 62, s 98, s 99, s 100, s 127, s 132, s 134, s 146
Mining Act Regulations, reg 21
Result:
The questions of law reserved for the opinion of the Court by the case stated by the warden are answered as follows:
1: No.
2 & 3: No, because the warden does not have jurisdiction to hear and determine the plaintiffs' claims in action 7/012.
On the originating summons for declaratory relief, the plaintiffs are entitled to a declaration to the effect that the warden's court does not have jurisdiction to hear and determine the plaintiffs' claims in the action commenced by plaint 7/012 before the warden's court at Leonora
Category: A
Representation:
CIV 2348 of 2003
Counsel:
First Applicant : Mr R J L McCormack
Second Applicant : Mr R J L McCormack
First Respondent : Mr A J N Aristei
Second Respondent : Mr A J N Aristei
Solicitors:
First Applicant : Taylor Linfoot & Holmes
Second Applicant : Taylor Linfoot & Holmes
First Respondent : Carles Solicitors
Second Respondent : Carles Solicitors
CIV 1239 of 2004
Counsel:
First Plaintiff : Mr A J N Aristei
Second Plaintiff : Mr A J N Aristei
First Defendant : Mr R J L McCormack
Second Defendant : Mr R J L McCormack
Solicitors:
First Plaintiff : Carles Solicitors
Second Plaintiff : Carles Solicitors
First Defendant : Taylor Linfoot & Holmes
Second Defendant : Taylor Linfoot & Holmes
Case(s) referred to in judgment(s):
DJL v Central Authority (2000) 201 CLR 226
Global Doctor Ltd v Hodgkinson [2003] WASCA 119
His Worship Calder SM, Re Ex parte Gardner (1999) 20 WAR 525
R v Rigby (1956) 100 CLR 146
Case(s) also cited:
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Allesch v Maunz (2000) 203 CLR 172
Bailey v Marinoff (1971) 125 CLR 529
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Cabassi v Vila; sub nom Cabassi v Ferrando (1940) 64 CLR 130
Cameron v Cole (1944) 68 CLR 571
Commercial Developments Pty Ltd v Mercantile Mutual Insurance Ltd (1991) 5 WAR 208
Connell v Reynolds SM (1993) 9 WAR 27
Ellis v Kerr [1910] 1 Ch 529
Gamser v Nominal Defendant (1977) 136 CLR 145
Griffin Coal Mining Co Pty Ltd v Smith [2000] WASC 366
Healey v Ballarat East Bowling Club [1961] VR 206
Hillman v Hillman [1977] 2 NSWLR 739
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
In re Phillips. Public Trustee v Meyer (1931) WN 271
John White & Sons v White [1906] AC 72
London Passenger Transport Board v Moscrop [1942] AC 332
Luff v Midreef Pty Ltd & Minister for Mines, Western Australian Wardens Court, Carnarvon, 22 December 1999, Plaint Nos 23-24/989
Mallen, In re; Executor Trustee & Agency Co of South Australia Ltd v Wooldridge [1929] SASR 154
Malley, Re; Ex parte Gardner [2001] WASCA 29
McHarg v Woods Radio Pty Ltd [1948] VLR 496
Murcia and Associates (a firm) v Grey (2001) 25 WAR 209
O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356
Pedler v BFC Finance Ltd, unreported; SCt of NSW; 28 December 1972
Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435
Project Tile Fixing Pty Ltd v Lane & Ors, unreported; SCt of WA; Library No 980223, 10 March 1998
R v Ross Jones; Ex parte Green (1984) 156 CLR 185
Rahisi v Banzato (1996) ASC 56-346
Reynolds Australia Alumina Ltd v Glenmore Nominees Pty Ltd, unreported; SCt of WA; Library No 6578; 13 April 1987
Saltau v Sloane [1953] VLR 25
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Taylor v Taylor (1979) 143 CLR 1
Tortola Pty Ltd v Saladar Pty Ltd [1985] WAR 195
LE MIERE J: These two matters were heard together. The first is a special case stated by a warden of mines stating questions of law for the opinion of this Court. The second matter is an application by originating summons for certain declarations concerning the jurisdiction and power of the warden's court.
The parties and the exploration licence
Graham Alfred Hawks and Western Resources and Exploration Pty Ltd (Western Resources) are the applicants in the case stated and the defendants to the originating summons. Western Resources is a company incorporated in Western Australia. Hawks is a director and shareholder of Western Resources.
Shadmar Pty Ltd (Shadmar) and Gregory Paul Martin are the respondents in the case stated and the plaintiffs to the originating summons. Shadmar is a company incorporated in Western Australia. Ronald George Martin is a director and shareholder of Shadmar. Gregory Paul Martin is the son of Ronald Martin and is an employee of Shadmar.
In September 1998, Silver Gecko Pty Ltd was wound up pursuant to an order of the Supreme Court and Charles Louis Nilant was appointed as the liquidator for the company. Silver Gecko was the registered holder of exploration licence 36/359 (sometimes referred to as EL 36/359).
Mr Lawton is a solicitor. He and his firm, Lawton Gillon, formerly Lawton Gillon Tydde, have acted for different parties at different times.
History of proceedings in warden's court
On 4 March 1998, Lawton Gillon Tydde, on behalf of Hawks, issued plaint number 44/978 in the warden's court at Leonora. The defendant was Silver Gecko. Hawks claimed that Silver Gecko was in breach of a number of agreements, including an agreement dated 22 July 1996 relating to exploration licence 36/359. Hawks sought a finding that Silver Gecko had defaulted in the terms of each agreement and a declaration that Hawks was entitled to an unencumbered transfer of exploration licence 36/359, as well as other tenements, from Silver Gecko.
On 4 September 1998, Lawton Gillon, on behalf of Shadmar, issued plaint number 9/989 in the warden's court at Leonora. Once again the defendant was Silver Gecko. Shadmar claimed that Silver Gecko had failed to comply with the expenditure conditions imposed by r 21 of the Mining Act Regulations ("the Regulations") for the expenditure year ending on 10 December 1998 in respect of exploration licence 36/359. Shadmar claimed that Silver Gecko was therefore in breach of s 62 of the Mining Act ("the Act") in that it had failed to expend or cause to be expended the sum of $20,000 in mining on or in connection with mining on the tenement. Shadmar sought that exploration licence 36/359 be recommended for forfeiture pursuant to s 98 of the Act.
Shadmar and the liquidator of Silver Gecko executed a deed dated 15 January 1999. The deed provided that Shadmar would pay to Silver Gecko $27,000 in return for which Silver Gecko would give to Shadmar an executed transfer, withdrawal or surrender of certain tenements, including exploration licence 36/359, at the election of Shadmar.
On 15 October 1999 Shadmar lodged transfer number 682H/990, being a transfer from Silver Gecko to Shadmar of exploration licence 36/359. The consideration was stated to be pursuant to the deed dated 15 January 1999 between Shadmar and Silver Gecko. The transfer was registered on 10 November 1999. The deed states that Silver Gecko transferred its interest in the exploration licence to Shadmar subject to existing plaints, caveats and other encumbrances. It is said on behalf of Shadmar that the plaints and encumbrances included plaint 9/989.
On 16 February 2000, Lawton Gillon, on behalf of Shadmar, lodged plaint number 45/990 in the warden's court at Leonora. The defendants were Nilant, as liquidator of Silver Gecko, and the Minister for Mines. Shadmar claimed that an unauthorised person purporting to act for the liquidator of Silver Gecko had lodged a form 5 report in respect of exploration licence 36/359 for the expenditure year ending 10 December 1998 with the Department of Minerals and Energy on 20 April 1999 and the Department had accepted such lodgement contrary to the provisions of the Act. Shadmar sought a declaration that the form 5 report was accepted for lodgement by the Minister contrary to law, and a declaration or, in the alternative, an order that the register of exploration licence 36/359 be amended by deleting the form 5 report from the register and specifying in the register the expenditure for the expenditure year ending 10 December 1998 as nil.
On 22 February 2000, Hawks lodged plaint 46/990 in the warden's court at Leonora. The defendant was Shadmar. Hawks claimed that Shadmar had failed to comply with the expenditure conditions imposed by r 21 in regard to exploration licence 36/359 in breach of s 62 of the Act in that it had failed to expend or cause to be expended the minimum expenditure required in mining, or in connection with mining, on the tenement and that such failure was of sufficient gravity to justify forfeiture. Hawks sought that exploration licence 36/359 be recommended for forfeiture pursuant to s 98 of the Act with a prior right to mark out all or part of the land comprised in exploration licence 36/359 to be granted to Hawks.
The book of relevant documents filed by the agreement of the parties to the case stated includes a transcript of proceedings before Warden Calder at Perth on 25 February 2000. It appears from the transcript that there was some initial confusion as to what matter or matters were before the warden. Mr Lawton announced his appearance for Shadmar. Mr Lawton then said that he also appeared for Hawks in relation to plaint 44/978. Mr Lawton asked that plaint 44/978 be adjourned. Mr Lawton then asked the warden to deal with plaint 45/990.
Mr Lawton announced that he appeared for Shadmar in relation to that plaint and that there would be no appearance by the liquidator of Silver Gecko. Mr Lawton said that Shadmar sought an order or a declaration that the form 5 report dated 20 April 1999 for the expenditure year ending 10 December 1998, in relation to exploration licence 36/359, was accepted for lodgement contrary to law because it was accepted outside the 60‑day period prescribed. Mr Lawton submitted that an employee of the liquidator of Silver Gecko, Mr Buckley, had provided an affidavit deposing that the liquidator had not authorised anyone to lodge the form 5 report, that no application had been made to the Minister for an extension of time to lodge the report, and that the liquidator was aware of, and consented to the orders sought in plaint 45/990.
Mr Lawton then made submissions to the warden concerning the power of the warden to make the orders sought. In the course of argument Mr Lawton said that following the lodgement of the form 5 there had been a transfer of the tenement from Silver Gecko to Shadmar. Mr Lawton informed the warden that if the orders sought were made that would be the basis on which a plaint would proceed. It appears that the warden and Mr Lawton understood that Mr Lawton was referring to plaint 9/989 by which Shadmar sought that the warden recommend to the Minister that exploration licence 36/359 be forfeited on the ground that the registered holder had failed to comply with the expenditure requirements.
Mr Lawton asked the warden to deal with the matter with such expediency as to allow his recommendation to go to the Minister in time for it to be dealt with before 1 April 2000, the day upon which the existing tenement was due to expire. The warden informed Mr Lawton that he would adjourn the matter to consider whether he should make the orders sought in plaint 45/990. Mr Lawton then asked that the warden adjourn the other Shadmar and Hawks matters. The warden said that the three plaints, presumably plaints 9/989, 45/990 and 44/978, would be set down for mention on 9 March 2001.
There was a further hearing before Warden Calder at Perth on 3 March 2000. The warden announced that he would orally deliver his reasons for decision and subsequently prepare written reasons. The warden delivered oral reasons and stated his conclusion that he had the power to make the declarations that were sought and that it was appropriate that he make those declarations. The warden then orally pronounced the declarations. The warden then proceeded to deal with plaint 9/989, by which Shadmar sought that the warden recommend to the Minister that exploration licence 36/359 be forfeited for failure to comply with expenditure requirements. Mr Lawton said that the plaint had been before the warden on the previous occasion and that no other party was interested in the plaint.
Mr Lawton then went on to draw further matters to the attention of the warden and make submissions. The warden stated that he drew the inference that there had been a total non‑compliance with the conditions in relation to which the exploration licence was subject and that was a matter of sufficient gravity to justify forfeiture of the tenement. The warden stated that that was the recommendation he would make.
The formal record and recommendation of the warden to the Minister under s 98 of the Act is as follows:
"On 3 March 2000 I delivered my decision and oral reasons therefore in the matter of Shadmar Pty Ltd v Silver Gecko Pty Ltd (In Liquidation) – plaint 9/989.
That was a matter conducted by me in the exercise of the jurisdiction of the warden's court. I ruled that a form 5 report which had been lodged at the registry in respect of exploration licence 36/359 for the tenement year ended 10 December 1998 and which had been recorded on the register had not been lodged in accordance with the provisions of the Act or Regulations and should not have been entered on the register. As a consequence of my ruling in that regard, I declared that the register should be amended by deleting the reference to the lodgement of the form 5 expenditure report for the tenement year ending 10 December 1998 for exploration licence 36/359.
It followed from that declaration that no form 5 expenditure report had been lodged for the tenement for the year the subject of the plaint by Silver Gecko (plaint 45/990).
In those circumstances it is open to me to draw the inference that there was a complete non‑compliance with the prescribed expenditure requirement for the year in question and to be satisfied that the non‑compliance was of sufficient gravity to justify forfeiture.
I draw that inference and I am satisfied that in the circumstances of the case the non‑compliance is of sufficient gravity to justify forfeiture.
RECOMMENDATION
I recommended to the Minister that exploration licence 36/359 be forfeited pursuant to s 98 of the Mining Act."
On 29 March 2000 the Director of the Mineral Titles Division of the Department of Minerals and Energy wrote to Shadmar. The Director informed Shadmar that the Minister had decided to forfeit exploration licence 36/359 and that as plaintiff Shadmar would have 14 days prior right to mark out and apply for the ground covered by the exploration licence.
On 31 March 2000 a notice was published in the Government Gazette by which the Minister for Mines declared, in accordance with the provisions of s 69(1)(a) of the Act, that exploration licence 36/359 is forfeited for breach of covenant, viz, non‑compliance with expenditure conditions with prior right of application being granted to the plaintiff under s 100(2).
On 3 April 2000, Gregory Martin lodged application number 36/446 for an exploration licence over the ground formerly comprised within (the now forfeited) exploration licence 36/359 ("the Relevant Ground").
On 10 April 2000, Western Resources lodged application number 36/448 for an exploration licence over the Relevant Ground.
On 13 April 2000, that is within the 14 day priority period granted to Shadmar to mark out and apply for the ground covered by the exploration licence, Shadmar lodged application 36/580 for a mining lease over the Relevant Ground.
On 8 May 2000, Hawks lodged objection number 128/990 objecting to application 36/446 for an exploration licence by Gregory Martin on the ground that the application had been made in contravention of s 69 of the Act. On the same day, Western Resources lodged objection number 129/990 to the same application (36/446) by Gregory Martin for an exploration licence on the same grounds.
On 15 May 2000, Hawks lodged objection number 134/990 to application 36/580 by Shadmar for a mining lease on the grounds that the application was an abuse of the legal process in that Shadmar had previously sought the forfeiture of exploration licence 36/359 whilst it was the current holder of the licence and the conversion to a mining lease should have been made prior to exploration licence 36/359 dying. On the same day, Western Resources lodged objection number 135/990 to the same application (36/580) by Shadmar for a mining lease on the same grounds.
On 13 July 2001, Hawks and Western Resources filed a chamber summons in relation to applications 36/446 and 36/580 for orders to amend objections 128/990, 129/990, 134/990 and 135/990. The amendments sought to add a further objection to the effect that the recommendation for forfeiture of, and the forfeiture of, exploration licence 36/359 should be recalled and/or set aside.
The chamber summons to amend the objections was adjourned, pending the determination of plaint 7/012, to which I will now refer.
On 16 July 2001, Hawks and Western Resources lodged plaint 7/012 in the warden's court at Leonora.
Plaint 7/012
The plaintiffs to plaint 7/012 are Hawks and Western Resources. The defendants are Shadmar and Gregory Martin. The plaint states the nature of the claim to be:
"Warden's court plaint numbers 9/989 and 45/990, and the submissions made at the hearings of those plaints on 25 February 2000 and 3 March 2000, and the correspondence and conduct of Shadmar Pty Ltd and its agents in relation to those plaints, and in relation to the forfeiture of E36/359 and applications E446/990 and M36/580 constitute an abuse of legal process and of the warden's court and of the provisions of the Mining Act in that:
(i)Shadmar Pty Ltd became the registered proprietor of E36/359 on 19 November 1999 pursuant to transfer number 682H990 dated 15 October 1999 and pursuant to a deed dated 15 January 1999.
(ii)The liquidator of Silver Gecko Pty Ltd (in liquidation) had no effective interest in the matters.
(iii)The Minister for Mines played no part in plaint 45/990.
(iv)The warden and the Department of Minerals and Energy were misinformed at the said hearings and in correspondence.
(v)Graham Alfred Hawks was not given an appropriate opportunity to be heard in relation to plaint 44/978 and 46/990."
The relief sought in the plaint was:
(i)That the hearing of this plaint be heard at the same time as the hearing of applications E446/990, E448/990, and M36/580 and the objections thereto and of plaint 44/978 and plaint 46/990.
(ii)That the orders and/or recommendations of the warden subsequent on the said hearings conducted on 25 February 2000 and 3 March 2000 be recalled and/or set aside including the reinstatement of plaint 46/990.
(iii)That plaints 9/989 and 45/990 be struck out.
(iv)That the warden recommends to the Minister that Graham Alfred Hawks be awarded E36/359, or a tenement or tenements over the ground the subject of E36/359 or a prior right to apply for such ground.
(v)Further or alternatively that Mr Greg Martin or Shadmar Pty Ltd shall hold any tenement over the said ground upon trust for Graham Alfred Hawks or Western Resources and Exploration Pty Ltd.
(vi)Further or other orders or recommendations as are appropriate.
(vii)That Shadmar Pty Ltd pay the plaintiff's costs of this plaint."
On 31 May 2002, Hawks and Western Resources filed a statement of claim. The statement of claim is a complex and lengthy (19 page) document. The statement of claim pleads the matters I have set out above concerning the parties, exploration licence 36/359, and the various plaints and objections to them. I will refer to some of the other matters raised by the statement of claim but will not attempt to summarise it all.
Hawks and Western Resources plead that in or about March 1998 Hawks engaged Lawton Gillon, and in particular Mr Lawton, as solicitors to obtain for him or for Western Resources exploration licence 36/359 or the Relevant Ground. In or about June 1998, without Hawks' knowledge, Ronald Martin and Shadmar engaged Lawton Gillon, and in particular Mr Lawton, to secure various mining tenements, one of which was exploration licence 36/359, and to wind up Silver Gecko.
It is alleged that from about April 1999 to about July 2000, Ronald Martin, Gregory Martin and Shadmar engaged in a course of conduct which constituted an abuse of legal process of the warden's court, and of the provisions of the Act, with the intention of acquiring the Relevant Ground. That conduct related to exploration licence 36/359. Shadmar lodged a form 5 expenditure report for exploration licence 36/359 in respect of the year ending 10 December 1998. At that time, Silver Gecko was the registered holder of the exploration licence but it had been sold by the liquidator to Shadmar by the deed dated 15 January 1999. The information in the form 5 as to expenditure was false. The form 5 was lodged by Shadmar in order to mislead the Mines Department and the public and to thereby forestall forfeiture proceedings against exploration licence 36/359. On 17 February 2000 Shadmar filed plaint 45/990 seeking a declaration that the form 5 was accepted by the Minister contrary to law and sought an order that the form 5 be deleted from the register. Shadmar's purpose in filing the plaint was to obtain forfeiture of the exploration licence and a prior right for Shadmar to apply for the Relevant Ground. The plaint was an abuse of legal process and of the Act in that:
(a)The form 5 had been filed by Shadmar itself.
(b)The liquidator had no interest in the matter, having sold the exploration licence to Shadmar.
(c)Shadmar was both the plaintiff and the proprietor of the exploration licence.
(d)Although the Minister was named as a defendant, the plaint did not inform the Minister of important relevant matters.
(e)Hawks, who was known to Shadmar to have an interest in the matters the subject of the proposed declarations, was not named as a defendant.
(f)Although the plaint sought declarations from the warden's court, it failed to inform the warden's court of material which was relevant and material to the consideration of the proposed declarations.
The statement of claim pleads that Shadmar informed the warden that the application was by consent but failed to tell the warden that the liquidator had sold exploration licence 36/359 "as is", and had been paid and had no interest in the matter and that his consent or otherwise was irrelevant. Shadmar also failed to inform the warden that plaint 46/990 of Western Resources filed on 22 February 2000, which also related to the Relevant Ground and which was also listed for mention on 6 April 2000, should be transferred to the warden's court so that Western Resources would have the opportunity of being heard.
The statement of claim asserts that at the mention only hearing in the warden's court on 25 February 2000, Mr Lawton misinformed, or inadequately informed, the warden in relation to the lodging of the form 5, the relative interests of Shadmar and Silver Gecko in the exploration licence, the applications by Hawks and Western Resources and the right of Hawks and Western Resources to be heard. At the further hearing of the warden's court on 3 March 2000 Mr Lawton again misinformed, or inadequately informed the warden in relation to matters concerning the exploration licence and the relevant interests and right to be heard of Shadmar, Silver Gecko, Hawks and Western Resources.
The plaintiffs to plaint 7/012 allege that the conduct of Shadmar was fraudulent, and constituted a misstatement to the warden's court and the Mines Department and/or suppression of relevant facts from them and from Hawks. The conduct had the result of denying Hawks and Western Resources and the Minister the opportunity to learn of and appreciate the relevant circumstances and to be heard. It is against public policy that Shadmar or Greg Martin benefit from the conduct.
The statement of claim claims the following detailed relief:
"1.An order that the declarations and recommendations made by the warden on 25 February 2000 and 3 March 2000 be recalled, (or such part thereof as the warden thinks appropriate be recalled).
2.A declaration that the declarations and recommendations which were made on 25 February 2000 and 3 March 2000 were made:
(i)as a result of a course of conduct which was fraudulent; and/or
(ii)as a result of misstatements, and suppression of facts; and/or
(iii)in circumstances where the Minister and Mr Hawks and Western Resources … were not being adequately heard.
3.A declaration that the forfeiture of E36/359 by the Minister and the prior 14-day right to apply in favour of Shadmar were made:
(i)as a result of a course of conduct which was fraudulent; and/or
(ii)as a result of misstatements, and suppression of facts; and/or
(iii)in circumstances where Mr Hawks and Western Resources … were not adequately heard.
4.A declaration that it is against public policy and the public interest and equity that Shadmar Pty Ltd or Mr Greg Martin benefit from the said conduct by being awarded a tenement over the Ground.
5.
(i)A mandatory injunction requiring Mr Greg Martin and Shadmar Pty Ltd to withdraw applications E36/446 and M36/580, or
(ii)an injunction restraining Mr Greg Martin and Shadmar Pty Ltd permanently from proceeding with application E36/446 and M36/580.
6.That the warden recommend to the Minister that application E36/446 by Greg Martin and application M36/580 by Shadmar Pty Ltd be refused, pursuant to s 111A of the Act, or otherwise.
7.That the warden recommend that Western Resources' … application E36/448 be granted.
8.Alternatively, an order that Greg Martin or Shadmar Pty Ltd shall hold any tenement which may be granted over the Ground in trust for Graham Hawks or Western Resources… "
The defendants filed a defence on 8 August 2003. The defendants deny each and every allegation of significance in the statement of claim. They deny that they engaged in conduct which constituted an abuse of legal process or that they misinformed or failed to adequately inform the warden or the Minister concerning the matters alleged, or that they engaged in conduct that was fraudulent or constituted a misstatement to the warden's court and the Mines Department. The defendants plead that the warden's court lacks jurisdiction or alternatively power to hear or determine the plaint or alternatively to grant the relief sought in the plaint. The defendants deny that the warden has jurisdiction or alternatively power to make the declarations, orders, recommendations or directions to the effect set out in the plaintiff's prayer for relief. The defendants plead:
"(i)The warden's respective recommendation and declaration with respect to plaint 9/989 and plaint 45/990 were made on 3 March 2000. Since that date, no appeal, nor any judicial review has been sought or lodged with respect to those determinations either before the Supreme Court or at all.
(ii)The warden's court does not have jurisdiction or alternatively power to grant the declarations and injunctive relief sought in the prayer for relief in the plaint.
(iii)The power to recall orders made by the warden's court and to recall recommendations made by the warden in open court are matters for relief that are outside the power of the warden's court herein.
(iv)The Minister for Mines ordered the forfeiture of EL36/359 on 31 March 2000, and a prior right of marking out was granted to Shadmar Pty Ltd with respect to the ground comprised in that tenement for a period of 14 days after that forfeiture order was made. Notwithstanding these facts, the Minister for Mines has not been joined as a party to this plaint. Nor has any relief been sought to recall the said forfeiture order. In the premises, the present relief sought in the proceedings is of no utility."
The case stated
On 30 October 2003, the warden stated a case for the opinion of this Court. The case stated is in these terms:
"Pursuant to orders made by the warden's court on the 30th day of October 2003, the following questions of law are reserved for the opinion of the Supreme Court, namely:
1.Does the warden have jurisdiction to hear and determine the plaintiff's claim in action 7/012;
2.Does the warden have power to grant relief to the plaintiffs in action 7/012;
3.Does the warden have power to grant the specific relief sought by plaintiffs in action 7/012."
Section 146(1) of the Act provides that the warden may reserve, at any stage of any proceedings under the Act, any question of law for the opinion of the Supreme Court. Subsection 146(2) provides that the question of law shall be submitted to the Court in the form of a special case stated by the warden.
A case stated is a mechanism by which questions of law are posed for determination by the Court in a document which states the ultimate facts of the case as agreed by the parties, or found by the warden's court. Upon a case stated the Court cannot determine questions of fact or draw inferences of fact. The facts stated in it are taken to be the ultimate facts being those facts which, if the law is applied to them, will decide the question: Civil Procedure Western Australia [31.1.2], citing R v Rigby (1956) 100 CLR 146 at 151, 152.
In this case, the warden has not expressly stated the facts against which the questions of law are to be determined. The case stated by the warden necessarily implies that the facts stated are to include the process and pleadings in action 7/012. The questions of law reserved for the opinion of the Court concern the jurisdiction of the warden to hear and determine action 7/012 and the power to grant relief in that action. To determine whether the warden has jurisdiction and power, this Court should assume that the facts asserted by the plaintiff in action 7/012 are correct. Insofar as the pleadings in action 7/012 refer to other proceedings, applications and objections filed in the warden's court, then this Court may refer to those documents for the purpose of answering the questions asked of it. All of those documents have been forwarded to this Court by the warden in stating the case for the opinion of this Court.
The parties to the case stated prepared a document described as "Book of Relevant Documents in Support of a Case Stated for the Opinion of the Supreme Court". The Book of Relevant Documents includes plaint 7/012 and the statement of claim and defence filed in that action. The Book also includes the following further documents:
•Warden's court plaints 9/989, 45/990, 44/978 and 46/990.
•Transcript of proceedings before the warden in plaint 9/989 - 25/2/00.
•Report and recommendation by the warden in relation to plaint 45/990 - 3/3/00.
•Ministerial order of forfeiture of EL36/359.
•Application for an exploration licence 36/446 - 3/4/00.
•Application for an exploration licence 36/448 – 10/4/00.
•Application for a mining lease 36/580 – 13/4/00.
I conclude, after some hesitation, that the Court may have regard to those further documents in answering the questions reserved for the opinion of this Court. The documents are part of the proceedings in the warden's court that are the subject of plaint 7/012 or are documents referred to, or evidencing the events referred to, in the proceedings commenced by plaint 7/012. They may be considered to have been incorporated by reference into the case stated. The parties treated them that way.
The declaration proceedings
On 24 February 2004, Gregory Martin and Shadmar issued an originating summons to commence Supreme Court CIV 1239 of 2004. The defendants are Hawks and Western Resources. The originating summons seeks a number of declarations and orders relating to exploration licence 36/446 and the jurisdiction and power of the warden's court in relation to the action commenced by plaint 7/012 in the warden's court.
On 17 March 2004 a Judge of this Court ordered that the hearing of the originating summons, limited to the declaration sought in par 1 of the originating summons, be listed at the same time and before the same Judge as the listing of the hearing in the case stated matter. The Judge further ordered that the admitted facts and documents in the case stated be admitted for use in evidence in the originating summons proceeding. The order does not limit the evidence in the originating summons proceedings to that in the case stated. The affidavit of Ronald Martin in support of the originating summons is evidence in the originating summons proceedings.
The declaration sought in par 1 of the originating summons is a declaration that:
"(i)The warden's court does not have jurisdiction to hear and determine the causes of action contained in plaint 7/012 before the warden's court of Western Australia ("the Plaint"); and
(ii)Further or alternatively, the warden's court does not have power to grant the relief sought in par (d)(ii) – (iv), and further or alternatively any of the relief sought in par (d)(i) – (v) of the said Plaint."
Forfeiture of mining tenements
The Act contains provisions regarding the forfeiture of mining tenements. Where the requirements of the Act are not being complied with in respect of the expenditure conditions applicable to an exploration licence, any person may apply to the warden for the forfeiture of such licence or lease as provided for in s 98. Subsection 98(3) provides that the application for forfeiture shall be heard in open court by the warden. When the warden finds that the holder of an exploration licence has failed to comply with the expenditure conditions, the warden may recommend the forfeiture of the licence if the warden is satisfied that the non‑compliance with such requirements is, in the circumstances of the case, of sufficient gravity to justify the forfeiture. After hearing the application the warden forwards to the Minister the notes of evidence, with a report and the warden's recommendation, if any, on the application.
Section 99 of the Act provides that the Minister, after receiving the recommendation of the warden, may, amongst other things, declare the exploration licence forfeited. Where the Minister declares an exploration licence forfeited he publishes a notice of the declaration in the Government Gazette and on the publication of the notice the licence becomes forfeited.
Subsection 100(2) provides that where an exploration licence is forfeited pursuant to s 99, the applicant for forfeiture has, for a period of 14 days after the date of the publication of the notice of forfeiture of the licence in the Government Gazette, a right in priority to any other person to mark out or apply for, or both, a mining tenement upon the whole or any part of the land that was the subject of the forfeited licence.
Wardens and warden's courts
Subsection 13(1) of the Act provides that any person holding office as a stipendiary magistrate may be appointed by the Governor to be a warden of mines and is therefore authorised and empowered to preside in a warden's court.
Subsection 13(2) provides that the Governor may appoint other fit and proper persons to be wardens of mines but a person so appointed is not thereby authorised or empowered to preside in a warden's court.
Subsection 127(1) of the Act provides that the Governor may establish warden's courts at such places in the State as he thinks necessary.
The warden's court has jurisdiction, concurrent with that of the ordinary courts, to hear certain mining actions. These include actions concerning the title to mining tenements, the product of mining, trespass to mining areas, specific performance of contracts relating to mining, partnership disputes among miners, partition and sale of jointly owned tenements and certain other matters listed in s 132 of the Act. The powers of the warden's court include the awarding of damages, orders for specific performance, appointment of receivers, declarations of right, injunctions and orders for costs as provided in s 134(1).
Mining wardens deal with questions of compensation for mining operations and with such administrative matters as are conferred upon wardens by the Act.
When a warden hears an application for forfeiture of an exploration licence on the ground that the requirements of the Act are not being complied with in respect of the expenditure conditions, the warden is not sitting as a warden's court. The warden performs an administrative function, although he or she is required to act judicially in doing so. A recommendation to the Minister that an exploration licence be forfeited is an entirely ministerial act and not a judicial act: His Worship Calder SM, Re Ex parte Gardner (1999) 20 WAR 525 per Ipp J at [7] – [16]; Pidgeon J agreeing; Wallwork J deciding to the same effect.
Jurisdiction of warden's court
In issuing plaint 7/012, Hawks and Western Resources have purported to invoke the jurisdiction of the warden's court. Section 132(1) of the Act is in these terms:
"(1)A warden’s court has jurisdiction to hear and determine all such actions, suits and other proceedings cognizable by any court of civil jurisdiction as arise in respect of —
[enumerated matters (a) – (l) are then set out]
and generally all rights claimed in, under or in relation to any mining tenement or purported mining tenement, or relating to any matter in respect of which jurisdiction is under any provision of this Act conferred upon either the warden’s court or the warden."
The statutory jurisdiction of the warden's court set out in subs 132(1) may conveniently be seen to consist of three limbs.
Jurisdiction of warden's court – the first limb
The first limb is jurisdiction to hear and determine all such actions, suits and other proceedings cognizable by any court of civil jurisdiction as arise in respect of any of the matters enumerated in pars (a) to (l) in subs 132(1) of the Act.
The respondents to the case stated, Gregory Martin and Shadmar, submit that neither action 7/012 in the warden's court, nor any part of that action, can properly be said to arise in respect of any of the matters enumerated in pars (a) to (l) of subsection 132(1) of the Act.
The oral submissions on behalf of the applicants to the case stated, Hawks and Western Resources, took a course different from their written submissions. In their written submissions, the primary argument put by the applicants was that the warden's court has an implied, or incidental, power to reopen or reconsider its decisions to make the declarations and recommendations by the warden and should do so on the grounds that the decisions were obtained by fraud and were made in the absence of the applicants.
In his oral submissions, counsel for the applicants submitted that action 7/012 is an action arising in respect of the matter enumerated in par (g) of subs 132(1) of the Act, that is "trusts relating to mining tenements or mining". The relief claimed by the plaintiffs in action 7/012 includes an order that Gregory Martin or Shadmar shall hold any tenement over the Relevant Ground upon trust for Hawks or Western Resources. The applicants submit that the relief claimed in action 7/012 is the imposition or declaration of a constructive trust.
The constructive trust differs in essential respects both from express and resulting or implied trusts. It differs from the express trust in that it is raised by operation of law without reference to the intentions of the parties concerned and indeed largely contrary to the desires and intentions of the constructive trustee. The constructive trust differs from the resulting or implied trust in that, although a resulting or implied trust also arises by operation of law, the courts imply that a trust was actually intended and in the face of evidence to the contrary will discard the implication. In the case of a constructive trust, the inquiry is not as to the actual or presumed intentions of the parties, but as to whether, according to the principles of equity, it would be a fraud on the party in question to deny the trust. The trust is constructive in the sense that equity construes the circumstances by explaining or interpreting them. Equity does not construct the trust, it attaches legal consequences to the circumstances: Jacobs Law of Trusts in Australia, 6th Ed, [1301]. The constructive trust is said to be predominantly remedial in character. But it does not follow that the constructive trust is remedial in the sense that it first has existence and effect only upon the Court making its order. The better view is that the order recognises and enforces the trust, but does not create it. The trust arises immediately the circumstances exist in respect of which equity would construe a trust: Jacobs (op sit), [1310].
In this case there was little argument concerning the circumstances which give rise to the claimed constructive trust. In broad terms, the plaintiffs allege that the remedy of the constructive trust is available because profit, in the form of a right in priority to any other person to apply for a mining tenement upon the Relevant Ground, was made by the defendants by means of their participation with knowledge in a breach of fiduciary duty by Mr Lawton.
Whether the plaint or statement of claim in action 7/012 sufficiently pleads facts that if made out would entitle the plaintiffs to the remedy of the constructive trust claimed was not argued before me. Counsel for the applicants to the case stated submitted that the questions of law reserved for the opinion of the Court by the warden did not require that issue to be determined. Counsel submitted that question 1 in the case stated requires consideration only of whether the warden has jurisdiction to hear and determine the claim in which the relief claimed includes the declaration or imposition of a constructive trust over a mining tenement on the assumption that the facts pleaded in the action, if established, would be sufficient to entitle the plaintiffs to the relief claimed. I have difficulty with that view of the case stated. However, counsel for the respondents to the case stated did not dispute that position. In the absence of argument to the contrary I will not consider whether the facts pleaded by the plaintiffs in action 7/012, if established, are sufficient, to entitle it to the constructive trust claimed.
An action in which the plaintiff seeks a declaration or order that a defendant holds a mining tenement on trust for a plaintiff is an action in respect of a trust relating to a mining tenement and hence is within the jurisdiction of the warden's court. An action in which a plaintiff seeks the declaration or imposition of a constructive trust relating to mining tenements is within the jurisdiction of the warden's court.
The plaintiffs in plaint 7/012 seek the declaration or imposition of a trust in relation to any tenement that Gregory Martin or Shadmar shall hold over the Relevant Ground. Gregory Martin and Shadmar do not, or did not at the time of the issue of the plaint, hold any mining tenement over the Relevant Ground. They have applied for an exploration licence and mining lease respectively over the Relevant Ground. It is possible that neither application will be granted and neither tenement will come into existence. Counsel for the plaintiffs submitted that a constructive trust may exist in relation to an entitlement to a mining tenement even though the mining tenement may never come into existence. In my view, it is not necessary to decide that issue.
Section 132(1) of the Act gives a warden's court jurisdiction to hear and determine an action in respect of a trust "relating to mining tenements or mining". The plaintiffs submit that action 7/012 is an action in respect of a trust relating to mining tenements. The plaintiffs do not submit that the action is one in respect of trusts relating to mining.
Mining tenement is defined in s 8 of the Act to mean relevantly an exploration licence or mining lease granted or acquired under the Act or by virtue of the repealed Act and to include the specified piece of land in respect of which the mining tenement is so granted or acquired. A mining tenement does not include an application for an exploration licence or a mining lease. A mining tenement does not include the right in priority to apply for a mining tenement conferred by s 100(2) of the Act. That is, a mining tenement is a presently existing mining tenement not an application for a mining tenement or a mining tenement that might come into existence in the future.
An action in respect of a trust relating to a mining tenement is an action in respect of a trust relating to a presently existing mining tenement, not an action in respect of a trust relating to an application for a mining tenement or a trust relating to a mining tenement that might come into existence in the future. For that reason, action 7/012, insofar as it is an action in respect of a claim that the defendants shall hold any tenement over the Relevant Ground upon trust for the plaintiffs is not an action in respect of a trust relating to mining tenements and is not within the first limb of the jurisdiction of the warden's court.
The remainder of the plaintiff's claims in action 7/012 are based upon a claim that the warden's court should recall and set aside:
(a)the declaration made on 3 March 2000 that the form 5 report which had been lodged at the registry in respect of exploration licence 3/359 for the tenement year ended 10 December 1998 had not been lodged in accordance with the provisions of the Act and should not have been entered on the register;
(b)the declaration made on 3 March 2000 that the register should be amended by deleting the reference to the lodgement of the form 5 expenditure report for the tenement year ending 10 December 1998 for exploration licence 36/359;
(c)the warden's recommendation to the Minister that exploration licence 36/359 be forfeited pursuant to s 98 of the Mining Act.
In my view, none of those matters fall within any of the enumerated paragraphs of subs 132(1) of the Act and hence do not come within the jurisdiction conferred on the warden's court by the first limb of subs 132(1) of the Act.
Jurisdiction of warden's court – the second limb
The second limb of the warden's court's jurisdiction is to hear and determine all such actions, suits and other proceedings cognizable by any court of civil jurisdiction as arise in respect of "generally all rights claimed in, under or in relation to any mining tenement or purported mining tenement."
In my view, action 7/012 is not an action in respect of any right claimed in, under or in relation to any mining tenement or purported mining tenement. The plaintiffs' claim for a declaration that the defendants shall hold any tenement over the Relevant Ground upon trust for the plaintiffs is not a claim in relation to a mining tenement. Mining tenement means a presently existing mining tenement, not one that might come into the existence in the future.
Jurisdiction of warden's court – the third limb
The third limb of the warden's court's jurisdiction conferred by subs 132(1) is to hear and determine all such actions, suits and other proceedings cognisable by any court of civil jurisdiction relating to any matter in respect of which jurisdiction is under any provision of the Act conferred upon either the warden's court or the warden. The plaintiffs did not submit that action 7/012 fell within the third limb conferred upon the warden's court by subs 132(1) of the Act. It is not an action relating to any matter in respect of which jurisdiction is under any provision of the Act conferred upon either the warden's court or the warden.
Section 134(5) of the Act
The applicants in the case stated referred to s 134(5) of the Act as a source of the jurisdiction of the warden's court to hear action 7/012 or a source of the powers of the warden's court to grant the relief sought in action 7/012.
Section 134 of the Act deals with the powers of a warden's court. Subsection 134(1) confirms the existence of particular powers, including the power to grant a declaration in relation to particular matters. It also provides the power to make orders on all matters "within its jurisdiction" and generally "for the determination and settlement of all actions, claims, questions and disputes properly brought before the warden's court and for the enforcement and carrying out of any order previously made … ". Subsection 134(5) further specifically provides:
"(5)Subject to this Act and without affecting the jurisdiction of a warden’s court, a warden’s court or the warden, as the case may require, has and may exercise in relation to all matters relating to any civil proceeding under this Act the like powers and authorities as are conferred upon the Supreme Court or a Judge thereof."
In Global Doctor Ltd v Hodgkinson [2003] WASCA 119, Barker J held at [43] that these general powers, including those set out in subs 134(5), do not purport to extend the jurisdiction of the warden's court, but to make coextensive with the powers of the Supreme Court or a Judge thereof, the powers of a warden's court when acting within jurisdiction.
I agree. Section 134, including subs 134(5), is not a source of jurisdiction. Section 134 confers upon a warden's court power to make orders on matters within its jurisdiction. It does not extend the jurisdiction conferred upon the warden's court by s 132 of the Act.
Power of warden's court to reopen or reconsider decision
In their written submissions, the primary argument put by the applicants to the case stated is that the warden's court has an implied, or incidental, power to reopen or reconsider its decision to make the declarations and recommendations made by the warden on 3 March 2000, and should do so on the grounds that the decisions were obtained by fraud on the part of the defendants, and were made in the absence of the applicants.
The recommendation made by the warden to the Minister that exploration licence 36/359 be forfeited pursuant to s 98 of the Act was a recommendation made by the warden in open court. It was not made by the warden sitting in the warden's court. The warden was acting administratively not judicially.
The power of a court to reopen or reconsider its decisions has no application to the decision of the warden. It might be argued that the warden, acting administratively, has implied power to reconsider his decisions. Whatever the position may have been before the Minister acted upon the warden's recommendation, the warden does not have such a power after the Minister has so acted. The provisions of ss 98, 99, and 100(2) of the Act indicate that the power of the warden is spent when it has been acted upon by the Minister and is not available to be exercised from time to time. The warden is then functus officio and any attempt to re‑exercise the power is ultra vires.
In any event, action 7/012 invokes the jurisdiction of the warden's court, not the warden acting administratively. The warden's court has no power to re‑open the decision of the warden to recommend to the Minister that exploration licence 36/359 be forfeited.
The plaintiffs in action 7/012 also seek to recall and set aside the decision of the warden sitting in the warden's court to declare that the form 5 expenditure report had not been lodged in accordance with the provisions of the Act and should not have been entered on the register, and to declare that the register should be amended by deleting the reference to the lodgement of the form 5 expenditure report. In my view, the warden's court has no such power. In DJL v Central Authority (2000) 201 CLR 226 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, in a joint judgment, held that a court of limited jurisdiction, even a superior court, since it has no inherent jurisdiction, has power to reopen its judgments only if such power is express or implied from the enabling statute. The Act confers no express power upon the warden's court to reopen its decisions. Any party aggrieved by any final judgment, determination or decision of a warden's court may appeal to the Supreme Court. An appeal to the Supreme Court may, where the parties agree or where the Court orders, be by way of rehearing before a judge. In my view, there is no basis for finding that the Act implies a power that a warden's court may reopen or reconsider its own decisions.
Powers of warden's court
The questions of law reserved for the opinion of the Court by the warden include whether the warden has power to grant relief to the plaintiffs in action 7/012 and whether the warden has power to grant the specific relief sought by the plaintiffs in that action. I have come to the view that the warden does not have jurisdiction to hear and determine the plaintiffs' claim in action 7/012. It follows that the warden does not have power to grant any relief in action 7/012.
The case stated – conclusion
For the reasons stated, I answer the questions of law reserved for the opinion of the Court by the case stated by the warden as follows:
1:No.
2 and 3:No, because the warden does not have jurisdiction to hear and determine the plaintiffs' claims in action 7/012.
Originating summons for declaratory relief
On the originating summons for declaratory relief, the plaintiffs are entitled to a declaration to the effect that the warden's court does not have jurisdiction to hear and determine the plaintiffs' claims in the action commenced by plaint 7/012 before the warden's court at Leonora.
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