Margaret River Resources Pty Ltd v His Honour Warden Calder SM - [2008] WASCA 238

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MARGARET RIVER RESOURCES PTY LTD -v- HIS HONOUR WARDEN CALDER SM [2008] WASCA 238

CORAM: STEYTLER P
McLURE JA
NEWNES AJA

HEARD: 12 AUGUST 2008

DELIVERED : 24 NOVEMBER 2008

FILE NO/S: CIV 2936 of 2001

MATTER :Application for a prospecting licence under the Mining Act 1978 (WA) and an application for writs of certiorari, prohibition and mandamus against His Honour WARDEN CALDER SM

BETWEEN: MARGARET RIVER RESOURCES PTY LTD (ACN 089 490 719)
Applicant
AND
HIS HONOUR WARDEN CALDER SM
First Respondent
SHIRE OF AUGUSTA-MARGARET RIVER
Second Respondent
CONCEPT NOMINEES PTY LTD
Third respondent

Catchwords:

Mining law - Statutory interpretation - Meaning of expressions private land, concession and reserved for mining

Legislation:

Land Act 1933 (WA), s41, s 46, pt 4, sch 2 cl 16(1)
Mining Act 1978 (WA), s 24, s 24A, s 25

Result:

Order nisi made absolute

Category: A

Representation:

Counsel:

Applicant:     Mr J D Allanson SC
First Respondent           :     No appearance
Second Respondent      :     Mr CL Zelestis QC & Mr J M T Woodhouse
Third respondent           :     No appearance

Solicitors:

Applicant:     Blake Dawson
First Respondent           :     No appearance
Second Respondent      :     Woodhouse Legal
Third respondent           :     No appearance

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

Count Portales Gorgier v Morris (1860) 7 CB (NS) 588
Kisch v The Central Railway Company of Venezuela (Ltd) (1865) 3 DE GJ&S 122
Russell v Pennings [2001] WASCA 115
Wassaw Exploring Syndicate Ltd v African Rubber Co Ltd [1914] AC 626

STEYTLER P: I agree with McLure JA.
McLURE JA: This is the return of an order nisi for a writ of certiorari against the determination of Warden Calder SM made on 22 June 2001 that land the subject of Reserve 30656 was private land for the purposes of the Mining Act 1978 (WA).
In 1999 the appellant applied for a prospecting licence over 76 hectares of land in the southwest mineral field. The land the subject of the application included Reserve 30656 (the Reserve) which is in the management and control of the second respondent, the Shire of Augusta‑Margaret River (the Shire). The Shire objected to the grant of the prospecting licence. The other respondents did not take part in the appeal.
The Warden considered and determined a number of preliminary issues. The only determination the subject of this application is that the Reserve is private land not Crown land for the purposes of the Mining Act. If the Reserve is private land, a number of substances including limestone and sand are not minerals for which a prospecting licence can be granted.

The Reservation

Under s 33 of the Land Act 1933 (WA) the Governor could direct that any land be vested in any person for a designated purpose, being the purpose for which the land was reserved under the Land Act. The Governor could also confer upon that person the power to lease the land for the designated purpose (s 33(2)).
By order dated 18 November 1970 the Governor vested the Reserve in the Shire to be held ' … in trust for the following objects and purposes (that is to say) … "Quarry (Limestone)" … or other purposes for which the land is reserved … '.
By order dated 21 December 1982 the Reserve was vested in the Shire ' … in trust for the following objects and purposes (that is to say) "Quarry (Limesand)"'.
In December 1982 the Governor, under s 37 of the Land Act, approved a change of purpose of the Reserve from 'Quarry (Limestone)' to 'Quarry (Lime Sand)'.
By order dated 29 March 1988 the Governor directed that the Reserve be vested and held by the Shire 'in trust for the following objects

and purposes (that is to say) "Quarry (Lime Sand)" with power to the said Shire of Augusta‑Margaret River subject to the approval in writing of the Minister for Lands, to lease the whole or any portion thereof for any term not exceeding twenty one (21) years from the date of the lease … '.

The vesting orders referred to above were made under s 33 of the Land Act. The Land Act was repealed and replaced by the Land Administration Act 1997 (WA) (LA Act). Part 4 of that Act deals with Reserves. By s 41, the Minister may reserve Crown land to the Crown for one or more purposes in the public interest. By s 46(1) the Minister may place the care, control and management of Reserves with one or more persons. By s 46(5) an order for care, control and management does not create an interest in Crown land in the relevant reserve in favour of the management body of that reserve. Section 46(3) provides:
The Minister may ‑
(a)by order confer on a management body power … to grant a lease or sublease or licence over the whole or any part of the Crown land within the reserve in question for the purposes referred to in subsection (1); and
(b)approve a mortgage of any such lease.
The relevant transitional provision is cl 16(1) of Sch 2 of the LA Act. It materially provides:
An order made under section 33 of the repealed Act and subsisting immediately before the appointed day continues, subject to this Act, to subsist after the appointed day as if that order were a management order or an order made under section 46(3) … as the case requires, of this Act.

Mining Act

Part III of the Mining Act deals with land open for mining. There are three categories of such land ‑ Crown land (Div 1), public reserves (Div 2) and private land (Div 3).
The Mining Act defines Crown land and private land in the following terms:
'Crown land' means all land in the State, except ‑
(a)land that has been reserved for or dedicated to any public purpose other than ‑
(i)land reserved for mining or commons;
(ii)land reserved and designated for public utility for any purpose under the Land Administration Act 1997;
(b)land that has been lawfully granted or contracted to be granted in fee simple by or on behalf of the Crown;
(c)land that is subject to any lease granted by or on behalf of the Crown other than ‑
(i)a pastoral lease within the meaning of the Land Administration Act 1997, or a lease otherwise granted for grazing purposes only;
(ii)a lease for timber purposes; or
(iii)a lease of Crown land for the use and benefit of the Aboriginal inhabitants;
(d)land that is a townsite within the meaning of the Land Administration Act 1997.
'private land' means any land that has been or may hereafter be alienated from the Crown for any estate of freehold, or is or may hereafter be the subject of any conditional purchase agreement, or of any lease or concession with or without a right of acquiring the fee simple thereof (not being a pastoral lease within the meaning of the Land Administration Act 1997 or a lease or concession otherwise granted by or on behalf of the Crown for grazing purposes only or for timber purposes or a lease of Crown land for the use and benefit of the Aboriginal inhabitants) but ‑
(a)in relation to mining for minerals other than gold, silver and precious metals, for the purposes of Division 3 of Part III, does not include land alienated before 1 January 1899, except as provided in that Division;
(b)other than in so far as the primary tenement may be treated as private land in relation to mining for gold pursuant to a special prospecting licence or mining lease under section 56A, 70 or 85B, does not include land that is the subject of a mining tenement; and
(c)no land that has been reserved for or dedicated to any public purpose shall be taken to be private land by reason only that any lease or concession is granted in relation thereto for any purpose.
The third category of land, public reserves, is described in s 24, s 24A and s 25 of the Mining Act. Relevantly for present purposes, classes of land to which s 24 applies includes by s 24(1)(c):
[L]and reserved under Part 4 of the Land Administration Act 1997, not being ‑
(i)land to which paragraph (a) or (b) of this subsection refers;
(ii)land reserved for mining or commons;
(iii)land reserved and designated for public utility for any purpose pursuant to that Part;
(iv)land that is a townsite within the meaning of the Land Administration Act 1997.
Mining on land referred to in s 24(1)(c) may be carried out with the written consent of the Minister (s 24(5)(a)). Section 24(5)(b) provides:
Before giving his consent whether conditionally or unconditionally the Minister shall first consult the responsible Minister and the local government, public body, or trustees or other persons in which the control and management of such land is vested with respect thereto, and obtain its or their recommendations thereon.

The Warden's decision

The Warden was satisfied that the Reserve was not cancelled prior to the commencement of the LA Act. Accordingly, he concluded that the Reserve is taken to be land reserved under s 41 of the LA Act, the vesting order made on 29 March 1988 was continued in force as if it was a management order under s 46(1) and the authority to lease in the vesting order was also continued in force as if the Minister had confirmed the power under s 46(3) of the LA Act.
The expression 'public purpose' in the definition of Crown land in the Mining Act means, inter alia, any of the purposes for which land may be reserved under Pt 4 of the LA Act. The Warden concluded that the Reserve had been reserved for a public purpose under Pt 4 of the LA Act but had not been reserved for mining or commons or for a public utility purpose. Thus, the Warden held that the Reserve fell within exception (a) and was not Crown land.
The term 'concession' is not defined in the Mining Act. Relying on dictionary definitions, the Warden concluded that the Reserve is land the subject of a concession, the concession being the making of a management order under s 46(1) of the LA Act whereby the care, control and management of the Reserve was placed with the Shire. The Warden also concluded that the Reserve did not fall within the exception in par (c) of the definition of private land. He explained:
In my opinion, for purposes of para (c) of the definition of 'private land', the effect of the management order coupled with the power conferred upon the Shire as the management body to grant a lease over the reserved land takes the reserved land out of the exception which is provided for by para (c). I consider that the power to lease is something additional to the bare concession which, in my opinion, is, for purposes of the definition of private land, a correct way of describing the effect of the reservation of the land for the stated purpose of quarrying by the Shire which, in effect, concedes to the Shire the right to not only care for and control and manage the Reserve for the stated purpose but, additionally, to enter the Reserve for the purpose of quarrying lime sand for a purpose in the public interest [135].
As to the additional rights referred to, that appears to be a reference to s 46(7) of the LA Act which provides that a person with whom the care, control and management of a Reserve is placed has the capacity, functions and powers to hold and deal with the Reserve in a manner consistent with the management order. It was accepted by the parties that the Shire had the power (or right) to enter upon the Reserve and mine and remove lime sand for its purposes.
The appellant's single ground of appeal claims the Warden erred in concluding that the land the subject of the Reserve is private land for the purposes of the Mining Act. However, the appellant relies on three distinct matters. It contends the Warden erred in holding that:
(1)there was a concession within the meaning of that term in the definition of private land;
(2)the concession fell outside exception (c) to the definition of private land;
(3)the land was not reserved for mining and thus not Crown land.
The Shire did not object to the application on the ground of delay. Further, the Shire accepts that the claimed errors go to the jurisdiction of the Warden and are thus reviewable by this court. In those circumstances, it is unnecessary to address the legal principles that govern those matters.

Concession

As noted earlier, the term concession is not defined in the Mining Act. The appellant contends it contemplates an interest in the relevant land. As a management order does not create in favour of the management body an interest in the land the subject of the order it is not, according to the appellant, a concession.
The appellant relies on the decision of Parker J in Russell v Pennings [2001] WASCA 115. That was an appeal from convictions for taking flora on Crown land contrary to the Wildlife Conservation Act 1950 (WA). An issue in the appeal was whether the flora was on private land rather than Crown land. Private land is defined in the Wildlife Conservation Act to mean:
[A]ny land that has been or may hereafter be alienated from the Crown for any estate of freehold, or is or may hereafter be the subject of any conditional purchase agreement, or of any lease or concession with or without a right of acquiring the fee simple thereof other than for pastoral or timber purposes.
The appellants contended that the existence of a right of passage over the relevant area was a concession. Parker J said:
… [T]he appellants turned to The Macquarie Dictionary which, inter alia, offers the meaning of concession to be 'something conceded by a government or a controlling authority, as a grant of land, a privilege, or a franchise'. The New Shorter Oxford Dictionary suggests the following: 'A grant of land or other property made by a government or ruling power; A piece of land or territory so allotted; A grant or lease of a small area or a portion of premises for some specified purpose; A right or privilege granted by a government or ruling power'. In more specific legal contexts a concession is noted in Jowitt's Dictionary of English Law 2nd ed as 'a grant by a central or local public authority to a private person or private persons for the utilisation or working of lands, and industry, a railway, waterworks, etc' …
The particular context in which the word is used in s 6(1) of the Act is to distinguish private land from Crown land. This would tend against any loose and general denotation being intended. Further, in s 6(1) of the Act the definition of private land contemplates:
•land alienated for the Crown for any estate of freehold;
•land the subject of any conditional purchase agreement;
•land the subject of any lease or concession, with or without a right of acquiring the fee simple thereof.
That particular context also tends to indicate that 'concession' contemplates an interest in the land itself. Such an understanding of a concession in respect of land would accord with more usual legal usage [23] ‑ [24].
The respondent submits that the meaning and scope of the term 'private land' in general and 'concession' in particular is informed by the provisions of the Mining Act which regulate access to and mining upon private land. It notes that while private land is open for mining, there are many restrictions upon its availability that are not applicable to Crown land. For example, entry upon private land requires a permit (s 28(b), s 104(3)); certain kinds of private land can only be the subject of a mining tenement with the consent of the owner and occupier (s 29(2)); certain activities undertaken under a mining tenement require the consent of the owner or occupier (s 29(7)); the holder of a mining tenement may be obliged to pay compensation to the owner or occupier (s 35, s 123, s 124).
The terms 'owner' and 'occupier' are also used elsewhere in the Mining Act in contexts where they apply to all categories of land, including private land: s41(2), s 58(4), s 70(2), s 70C(4), s 74(3), s 114(9), s 115. Many of those provisions impose on an applicant for a mining tenement an obligation to give notice of the application to the owner or occupier of the relevant land.
'Owner' is defined in s 8(1) of the Mining Act to mean, among other things, the holder of a licence from the Crown and a person who has lawful control and management of land. 'Occupier' is defined to include a person in actual occupation under any lawful title derived from the owner. The terms owner and occupier are wide enough to include persons who do not necessarily have an interest (legal or equitable) in the land itself.
The respondent contends that the definition of owner makes it clear that a concession (and thus private land) extends to rights which do not give rise to an interest in the land.
We were not referred to any authority (or commentary) on the meaning of concession beyond Russell v Pennings. My research has failed to uncover anything that advances the position beyond that referred to by Parker J in that case. 'Concession' does not appear to be a technical legal term in Australian or English law. It is used in the old cases to describe a bundle of rights bestowed by foreign governments in connection with activities on land (including railways and mining): Count Portales Gorgier v Morris (1860) 7 CB (NS) 588; Kisch v The Central Railway Company of Venezuela (Ltd) (1865) 3 DE GJ&S 122; Wassaw Exploring Syndicate Ltd v African Rubber Co Ltd [1914] AC 626.
The meaning of the term concession is of particular significance because it is used in the definition of private land in a number of other statutes including the Fish Resources Management Act 1994 (WA), s 4; Petroleum and Geothermal Energy Resources Act 1967 (WA), s 5; Swan and Canning Rivers Management Act 2006 (WA), s 28.
The widest potential scope of the term as used in the Mining Act is fixed by the powers of the Crown in relation to Crown land. Those powers are primarily contained in the LA Act and include the power to grant leases, easements, profits a prendre, options to purchase and licences over Crown land. Of those categories it is only a licence that may not give rise to an interest in land.
I accept that a concession would include the grant of a profit a prendre and an easement over Crown land. I also accept that the scope of the term will depend on its context and may in some circumstances include rights or privileges over land that fall short of giving rise to any interest in the land. At its widest, the term means the grant of a right or privilege in connection with land. The central question is whether in the context of the Mining Act, concession extends to other authorised activities on Crown land that do not give rise to an interest in the land. The respondent says the expanded definition of owner requires an affirmative answer. The effect of the submission is that the meaning of the term owner evidences an intention that private land includes land in which no person other than the Crown has an estate or interest, legal or equitable.
Such an outcome is contrary to the ordinary understanding of the expression private land. Further, an estate or interest in land is common to all the other categories which bring land within the definition of private land, being land alienated from the Crown for any estate of freehold and land the subject of any conditional purchase agreement or lease. If the line is not drawn at an estate or interest in land, there is no obvious principled limit on the nature or extent of the necessary connection with the land.
An alternative explanation for the expansive definition of owner (and occupier) in Pt III Div 3 of the Mining Act which relates to private land is that persons with rights and privileges short of an estate or interest in the land may be affected, financially or otherwise, by the grant of a mining tenement on private land such as to justify the extension to them of the rights and protections in that Division. The fact that a number of other rights and protections, including a right to compensation (s 123), are extended to owners and occupiers of Crown land and reserved land supports the alternative view.

Moreover, although there are many restrictions upon the availability of private land which are not applicable to Crown land, there are also different processes and procedures for reserved land. Mining on reserved land within s 24(1)(c) of the LA Act requires the consent of the Minister who must first obtain the recommendations of other relevant Ministers and interested parties.
Finally, if the legislature intended that private land should include land in which no‑one other than the Crown has an estate or interest, which is counter‑intuitive, it could have expressly so provided as it has done in the Agriculture and Related Resources Protection Act 1976 (WA), s 7. On balance, I have come to the view that concession in the definition of private land in the Mining Act requires an estate or interest in the land. I would uphold ground 1.

Exception (c) - Private land

I will deal with this ground on the basis that, contrary to my view, a concession includes rights or privileges relating to, but which confer no interest in, the land the subject of the Reserve. In my view the Warden erred in his construction and application of exception (c) to the definition of private land in the Mining Act.
Crown land reserved to the Crown for public purposes under s 41 of the LA Act would not, without more, be within the opening words of the definition of private land. A reservation under s 41 is separate and distinct from a managed reserve resulting from an order under s 46. The Crown's powers in relation to an unmanaged reserve are contained in s 47 and s 48 of the LA Act. An unmanaged reserve without more involves no third party interests in, or rights in relation to, the land. It is clear from the definition of private land that at a minimum, the Crown must grant some right to another person. Thus, an express exception is unnecessary for land merely reserved under s 41. The intention of exception (c) is to exclude from the definition of private land, reserved land that is the subject of a lease or concession. It is the existence of the lease or concession which brings reserved land within the opening words of the definition.
There remains the meaning of the word 'only' in exception (c). That connotes there may be another basis on which reserved land may be brought within the definition of private land. However, in my view, that other basis could only have that effect if, like a lease or concession, it was otherwise within the opening words of the definition of private land. There is no reason to conclude that all interests in Crown land (other than those expressly listed in the definition) must be either a lease or a concession. Further, exception (c) refers not only to reserved land but land dedicated to any public purpose. Dedication is not coterminous with a reservation under s 41 of the LA Act (see LA Act, s 56; Western Australian Land Authority Act 1992, s 21).
If the 'other basis' is not independently capable of bringing the reserved land within the opening words of the definition, it would have to piggyback on the lease or concession. That cannot have been intended. I see no arguable rationale or explanation for why something which is not part of the concession (and which is not itself an interest in land) would take the concession outside the scope of the exception.
Without piggybacking on the concession, what remains is reserved land with a person other than the Crown having a statutory power to grant a lease over the land for the relevant public purpose. If reserved land that is subject to an actual lease falls within exception (c) there is no reason in principle why reserved land with a third party having power to grant a lease would fall outside the exception.
There is an alternative ground on which I would also conclude that the Reserve is not private land. It is necessary to characterise the rights or privileges that together constitute the relevant concession. The power to lease was granted at the same time as the vesting order. It is a power given to facilitate the Shire's obligation to care, control and manage the Reserve. In these circumstances, the concession would be the bundle of rights and privileges given to the Shire in relation to the Reserve which bundle of rights includes the right to lease the land for the relevant public purpose.

Whether land reserved for mining

The appellant contends that the land the subject of the Reserve is 'reserved for mining' as that expression is used in par (a) of the definition of Crown land and is therefore Crown land.
Paragraph (a) excludes from the definition of Crown land, land that has been reserved for, or dedicated to any public purpose other than (relevantly for present purposes) land reserved for mining.
Public purpose is defined in s 8(1) of the Mining Act to mean any of the purposes for which land may be reserved under Pt 4 of the LA Act and any purpose declared by the Governor pursuant to that Act, by notification

in the Government Gazette to be a public purpose within the meaning of that Act.

In determining whether the land the subject of the Reserve was reserved for mining, it is necessary to refer to the purpose of the reservation as expressed in the exercise of the statutory power creating it. The vesting order dated 29 March 1988 vested the Reserve in the Shire 'in trust for the following objects and purposes (that is to say) "Quarry (Lime Sand)" … '. The purpose of the reservation was to provide the Shire with a source of the mineral for its requirements.
'Mining' is defined in the Mining Act to include fossicking, prospecting and exploring for minerals, and mining operations. The activity of quarrying for lime sand falls within that definition. However, the fact that land is reserved for a public purpose that includes an activity which falls within the definition of mining in the Mining Act is not sufficient. The reservation must be 'for mining' meaning that the land is set aside so as to be available for mining generally.
The distinction may be appreciated by contrasting a vesting order made in October 1962 in relation to land which included the land the subject of the Reserve. That order vested the land in 'the Minister for Mines in trust for the purpose of Minerals'. I would dismiss this ground.

Conclusion

For these reasons I am satisfied the Warden erred in finding that the Reserve is private land under the Mining Act. Accordingly, the order nisi should be made absolute. I would hear from the parties as to whether the decision is amenable to a writ of certiorari or in lieu thereof a writ of prohibition.
NEWNES AJA: I agree with McLure JA.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MARGARET RIVER RESOURCES PTY LTD -v- HIS HONOUR WARDEN CALDER SM [2008] WASCA 238 (S)

CORAM: STEYTLER P
McLURE JA
NEWNES AJA

HEARD: 12 AUGUST 2008

DELIVERED : 24 NOVEMBER 2008

SUPPLEMENTARY
DECISION :19 DECEMBER 2008

FILE NO/S: CIV 2936 of 2001

MATTER :Application for a prospecting licence under the Mining Act 1978 (WA) and an application for writs of certiorari, prohibition and mandamus against His Honour WARDEN CALDER SM

BETWEEN: MARGARET RIVER RESOURCES PTY LTD (ACN 089 490 719)
Applicant
AND
HIS HONOUR WARDEN CALDER SM
First Respondent
SHIRE OF AUGUSTA-MARGARET RIVER
Second Respondent
CONCEPT NOMINEES PTY LTD
Third respondent

Catchwords:

Orders - Costs - Suitor's Fund certificate - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 56 r 7(2)
Suitor's Fund Act 1964 (WA), s 10

Result:

Orders made

Category: D

Representation:

Counsel:

Applicant:     Mr J D Allanson SC
First Respondent           :     No appearance
Second Respondent      :     Mr D R Goodman
Third respondent           :     No appearance

Solicitors:

Applicant:     Blake Dawson
First Respondent           :     No appearance
Second Respondent      :     Woodhouse Legal
Third respondent           :     No appearance

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

Foots v Southern Cross Mine Management Pty Ltd (2007) 82 ALJR 173
Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748
Jones v Dalcon Construction Pty Ltd [2006] WASCA 205 (S)
Margaret River Resources Pty Ltd v His Honour Warden Calder SM [2008] WASCA 238

JUDGMENT OF THE COURT: These are the orders of the court in relation to the reasons for judgment in Margaret River Resources Pty Ltd v His Honour Warden Calder SM [2008] WASCA 238. By consent, the court orders that:
1.The order nisi for a writ of certiorari made on 26 February 2002 be made absolute.
2.A writ of certiorari be issued directing the first respondent to remove into this Honourable Court for the purpose of being quashed that part of the decision made on 22 June 2001 in application P70/1383, which held that the land the subject of Reserve 30656 is private land for the purpose of the Mining Act 1978 (WA).
3.The application otherwise is dismissed.
The applicant also seeks an order that the second respondent pay the applicant's costs of the application. That order is opposed by the second respondent who contends there should be no order as to costs or alternatively, an order that the second respondent pay the applicant's costs of the issue on which the applicant succeeded (the private land issue) and the applicant pay the second respondent's costs on the issue on which it succeeded (the Crown land issue).
A person who is heard in opposition to an application for a prerogative writ may, in the discretion of the court, be ordered to pay costs: O 56 r 7(2) of the Rules of the Supreme Court 1971 (WA). Ordinarily, costs follow the event: Foots v Southern Cross Mine Management Pty Ltd (2007) 82 ALJR 173. Further, the court may apportion costs or otherwise exercise its discretion where a party has been successful in only part of its claim: Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748.
The issue on which the applicant was successful raised questions of broad significance, complexity and relative novelty. It was the primary focus in the written and oral submissions and in the reasons for judgment. In those circumstances, the appropriate order is that the second respondent pay 80% of the applicant's costs of the application to be taxed.
The second respondent seeks an order under the Suitor's Fund Act 1964 (WA) (the Act), s 10. Section 10 provides that where an appeal against the decision of a court in any proceedings succeeds on a question of law, this court may grant to a respondent an indemnity certificate in respect of that appeal. An appeal includes, among other things, any proceeding by way of discharging or setting aside a judgment and any other proceeding in the nature of an appeal: s 3 of the Act. The O 56 application in this case is a proceeding in the nature of an appeal.
The discretion to grant an indemnity certificate may be exercised where there is a question of law which might reasonably be resolved in different ways: Jones v Dalcon Construction Pty Ltd [2006] WASCA 205 (S) [5]. The issue on which the second respondent was unsuccessful is of such a nature and an indemnity certificate should issue.
Accordingly, the court hereby makes the following additional orders:
4.The second respondent pay 80% of the applicant's costs of the application to be taxed.
5.The second respondent be granted an indemnity certificate pursuant to s 10 of the Suitor's Fund Act 1964 (WA) in respect of the application.