Hawks v Shadmar Pty Ltd

Case [2004] WASC 252


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 Applicant

AND

SHADMAR PTY LTD
First Respondent

GREGORY PAUL MARTIN
Second Respondent

FILE NO/S              :CIV 1239 of 2004

BETWEEN              :GREGORY PAUL MARTIN

First Plaintiff

SHADMAR PTY LTD
Second Plaintiff

AND

GRAHAM ALFRED HAWKS
First Defendant

WESTERN 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)…

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AGLC
Hawks v Shadmar Pty Ltd [2004] WASC 252
Case
[2004] WASC 252
Decision Date

CaseChat Overview and Summary

The matter before the court involved Hawks, the plaintiff, and Shadmar Pty Ltd, the defendant. The plaintiff sought a declaration that the Warden of the relevant mining area had no jurisdiction to hear and determine the plaintiff's claim. The dispute was heard in the Supreme Court of Queensland. The plaintiff's claim arose from an alleged trust relating to mining tenements, and the defendant argued that the Warden had jurisdiction to hear the case under the Mining Act.

The court was required to determine whether the Warden had the jurisdiction to hear and determine the plaintiff's claim, and whether the plaintiff's action was an action in respect of a trust relating to mining tenements. The court also needed to consider whether the Mining Act s 146 conferred jurisdiction upon the Warden to hear and determine the plaintiff's claim and whether the Warden's Court had jurisdiction to hear actions in respect of trusts relating to mining tenements.

The court found that the Warden did not have jurisdiction to hear and determine the plaintiff's claim. The court held that the Warden's Court was a court of limited jurisdiction, exercising only such jurisdiction as was conferred upon it by statute. The court further held that the Mining Act s 134 did not confer jurisdiction upon the Warden to hear and determine the plaintiff's claim, as the plaintiff's action was not an action in respect of a trust relating to mining tenements. The court also found that the Warden's Court did not have jurisdiction to hear actions in respect of trusts relating to mining tenements, as such actions fell outside the scope of the Warden's administrative function. The court further held that the Mining Act s 146 did not confer jurisdiction upon the Warden to hear and determine the plaintiff's claim.

The court made a declaration that the Warden had no jurisdiction to hear and determine the plaintiff's claim. The court also held that the Warden's Court did not have jurisdiction to hear actions in respect of trusts relating to mining tenements. The court further held that the Mining Act s 134 did not confer jurisdiction upon the Warden to hear and determine the plaintiff's claim, and that the Mining Act s 146 did not confer jurisdiction upon the Warden to hear and determine the plaintiff's claim.

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