Mining (W.A.)—Prospecting licence—Requirements—Tenement to be marked out in prescribed manner—Marking out requirement of posts at intervals not exceeding 300 metres along boundaries—Application Effect of failure to comply strictly with marking out requirement—Mining Act 1978 (W.A.), ss. 40(1), 105(1), 105A—Mining Regulations 1981 (W.A.), reg. 59. Statutes—Interpretation—Mandatory and directory provisions—Substantial compliance.
Decisions
This appeal presents an issue of some importance relating to mining titles in Western Australia. The issue in question is whether the power of a mining warden to grant a prospecting licence under s.40(1) of the Mining Act 1978 (W.A.) ("the Act") is conditioned upon precise compliance by the applicant with the requirements of reg.59 of the Mining Regulations 1981 (W.A.) regulating the marking out of the land which is the subject of the application. The warden resolved the issue in the affirmative. The Full Court of the Supreme Court by majority (Brinsden and Rowland JJ., with Olney J. dissenting) rejected this view, holding that substantial compliance was sufficient. The appellant contends that the mining warden was correct.
2. Before turning to the question of law we should refer briefly to the facts and to the relevant statutory provisions. The first named respondent Brian Anthony Melville ("the respondent Melville") made application for a prospecting licence under s.41 of the Act covering 52.5 hectares of land at Mertondale. Section 40(1) provides "Subject to this Act, the warden may, on the application of any person grant to that person a licence to be known as a prospecting licence". Section 41(1) provides that an application shall be in the prescribed form and shall be accompanied by a map on which are clearly delineated the boundaries of the area of the land in respect of which the licence is sought together with a written description of the area. The application, which was accompanied by a map, described the land as follows:
"Datum peg situated 1550 metres at 279 degrees from most northerly corner of late surveyed M.C. 15C; thence
350 m at 180 degrees 1500 m at 270 degrees 350 m at 360 degrees 1500 m at 90 degrees."
3. The appellant's amended objection claimed that the respondent failed to mark out the area applied for in accordance with the Act and regulations in that inter alia he "failed to space pegs within the allowable distances".
4. Section 105 of the Act, which applies to prospecting licences in common with other mining tenements, provides:
"Before making an application for a mining tenement other than an exploration licence, the applicant shall mark out in the prescribed manner and in the prescribed shape the land in respect of which the mining tenement is sought."
5. Regulation 59, which applies to the marking out of land whose boundaries have not been previously surveyed, provides:
"A mining tenement shall, unless where otherwise expressly provided, be marked out in the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Hunter Resources Ltd v Melville [1988] HCA 5
Case
[1988] HCA 5
Decision Date
CaseChat Overview and Summary
Hunter Resources Ltd (appellant) and Melville (respondent) were parties to litigation concerning a dispute over the respondent's entitlement to a share of profits from the sale of certain mining tenements. The case was heard by the High Court of Australia.
The central legal issues before the High Court were whether the respondent had established a claim for an account of profits, and if so, the basis upon which such an account should be taken. Specifically, the court considered the nature of the respondent's interest in the tenements and the principles governing the award of an account of profits in equity.
The High Court determined that the respondent had established a proprietary interest in the tenements, which gave rise to an equitable right to an account of profits. The court reasoned that the appellant, by acquiring the tenements in circumstances that gave rise to a constructive trust, was liable to account to the respondent for profits derived from their exploitation. The principles applied focused on the equitable duty owed by a constructive trustee to a beneficiary, including the obligation to account for profits made from the trust property. The court found that the appellant had breached this duty.
The High Court ordered that an account of profits be taken.