Mining Amendment Regulations 2007 (WA)
!200700045GG!
WESTERN 861 AUSTRALIAN GOVERNMENT
| ISSN 1448-949X | PRINT POST APPROVED PP665002/00041 |
PERTH, FRIDAY, 9 MARCH 2007 No. 45 SPECIAL PUBLISHED BY AUTHORITY JOHN A. STRIJK, GOVERNMENT PRINTER AT 3.45 PM
© STATE OF WESTERN AUSTRALIA
MINING ACT 1978
_________
MINING AMENDMENT
REGULATIONS 2007
9 March 2007 GOVERNMENT GAZETTE, WA 863
Western Australia
Mining Amendment Regulations 2007
CONTENTS
1. Citation
2. Commencement
3. The regulations amended
4. Regulation 2 amended
5. Regulation 5 amended
6. Regulation 10A amended
7. Regulations 48 repealed
8. Regulation 49 amended
9. Regulation 50 amended
10. Regulation 51B repealed
11. Regulation 52 amended
12. Regulation 53 replaced
53. Reduced expenditure where forfeiture
cancelled13. Regulations 55 and 56 repealed
14. Regulation 67 repealed
15. Regulation 109 amended
16. Regulation 111 amended
17. Regulation 113A replaced
113A. Prescribed persons before whom affidavit
may be sworn (s. 160D)113B. Prescribed official for certified documents
(s. 161)18. Regulation 118 amended
19. Regulation 120A amended
20. Heading to Part VII replaced
Part VII — Proceedings in warden’s court
21. Regulation 122 amended
22. Regulation 123 amended
23. Regulation 124 repealed
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Contents
24. Regulation 125 amended
25. Regulation 126 amended
26. Regulation 127 and 127A replaced by regulations 127 to 127G
127. Witness summons 127A. Meaning of “serve” 127B. Residential, business or postal address for
service127C. Documents served by bailiff 127D. Documents served by other persons 127E. Substituted service 127F. Content of an affidavit 127G. Prescribed form of copy of evidence 27. Regulation 128 amended
28. Regulation 129 amended
29. Regulation 130 to 134 repealed
30. Part VIII inserted
Part VIII — Proceedings before warden under Part IV
of the Act
Division 1 — General
137. Interpretation
138. Mention hearing
139. Default determination
Division 2 — Applications under section 96(1)(b) and
98
140. Commencing proceedings in respect of an application
141. Response
142. Settlement, admission and discontinuance
143. Joinder
144. Particulars
145. Disclosure of documents by applicant
Division 3 — Objections under the Act Part IV
146. Making an objection
147. Procedure when objection heard together with proceedings under Division 2
Division 4 — Service
148. Meaning of “serve”
149. Residential, business or postal address for service
150. Documents served by other persons
151. Substituted service
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Contents
Division 5 — Interlocutory orders and directions by
the warden
152. General powers of the warden in relation to interlocutory orders and directions
153. Applications for interlocutory orders or directions
Division 6 — Conduct of hearings
154. Conduct of hearings generally
155. Attendance at mention hearings and interlocutory hearings
156. Attendance at substantive hearings of proceedings
Division 7 — Evidence
157. Summons of witness
158. Time for service of summonses
159. Content of an affidavit
160. Production of documents before hearing
161. Directions for expert witnesses
162. Party may adduce affidavit evidence
163. Records of evidence
164. Return of documents and other exhibits after hearing
Division 8 — Costs
165. Costs
166. Warden’s review of decisions of mining registrar
167. Security for costs
168. Recovery of costs
Division 9 — Miscellaneous
169. Representation
170. Warden may act on its own initiative
171. Practice directions
172. Application of sections 142 and 146
173. Copy of determination
174. Offences
31. First Schedule amended
32. Second Schedule amended
33. Fourth Schedule inserted
Schedule 4 — Scale of costs for proceedings under
Part IV of the Act
1. Interpretation
2. Hourly rates
3. Scale of costs
9 March 2007 GOVERNMENT GAZETTE, WA 867
Mining Act 1978
Mining Amendment Regulations 2007
Made by the Governor in Executive Council.
1. Citation
These regulations are the Mining Amendment
Regulations 2007.
2. Commencement
These regulations come into operation on the day on which Part 9
of the Mining Amendment Act 2004 comes into operation.
3. The regulations amended
The amendments in these regulations are to the Mining
Regulations 1981*.[* Reprint 6 as at 7 April 2006. For amendments to 6 February 2007 see Gazette
23 June 2006.]
4. Regulation 2 amended
Regulation 2 is amended by inserting in the appropriate
alphabetical position —
““lawyer” means a certificated practitioner within the
meaning of the Legal Practice Act 2003;
”.
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5. Regulation 5 amended
(1) Regulation 5 is amended as follows:
(a) by inserting before “Application” the subregulation designation “(1)”; (b) by deleting “Application” and inserting instead — “ Applications ”.
(2) At the end of regulation 5 the following subregulations are
inserted —“
(2) For the purposes of section 30(6) the prescribed period
is 30 days.(3) For the purposes of section 30(8) the prescribed offices
or positions are —
(a) Director Mineral and Title Services Division; (b)
General Manager Tenure and Native Title Branch of the Mineral and Title Services Division.
”.
6. Regulation 10A amended
Regulation 10A(2) and (3) are each amended by deleting
“warden” and inserting instead —“ warden’s court ”.
7. Regulations 48 repealed
Regulation 48 is repealed.
8. Regulation 49 amended
(1) Regulation 49(2) is amended as follows:
(a) at the end of paragraph (a) by inserting — “ and ”;
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(b) after paragraph (a) by inserting — “
(aa) where the mining tenement is encumbered by a
mortgage, a copy of the notification to be
forwarded to the mortgagee by post; and”.
(2) Regulation 49(3) is repealed and the following subregulations
are inserted instead —“
(3) The holder of the mining tenement may lodge a written
submission relating to the application at the office of
the mining registrar at any time before the fixed date.(4) If a submission is lodged under subregulation (3) the
warden shall consider it at the hearing of the
application.”.
9. Regulation 50 amended
Regulation 50 is amended by deleting the full stop at the end of
paragraph (b) and inserting instead —“
; and
(c)
where the mining tenement is encumbered by a mortgage, a copy of the notification to be forwarded to the mortgagee by post.
”.
10. Regulation 51B repealed
Regulation 51B is repealed.
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11. Regulation 52 amended
Regulation 52 is amended as follows:
(a) by deleting “a plaint for forfeiture of a mining tenement” and inserting instead — “ an application under section 96(1) or 98(1) ”;
(b) by deleting “the plaint.” and inserting instead — “ the application. ”.
12. Regulation 53 replaced
Regulation 53 is repealed and the following regulation is
inserted instead —“ 53. Reduced expenditure where forfeiture cancelled
Notwithstanding regulations 15(1), 21(1) and 31(1),
where —
(a)
a mining tenement is forfeited under or by virtue of section 96, 96A or 97 of the Act; and
(b)
the forfeiture is then cancelled under section 97A(8),
a pro rata reduction in the annual amount to be
expended in respect of the mining tenement applies for
each whole month from the date of forfeiture to thedate of cancellation of the forfeiture.
”.
13. Regulations 55 and 56 repealed
Regulations 55 and 56 are repealed.
14. Regulation 67 repealed
Regulation 67 is repealed.
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15. Regulation 109 amended
Regulation 109(2) is amended as follows:
(a) by deleting “Part II of the Appendix to the Local Court Rules 1961” and inserting instead — “ the Magistrates Court (Fees) Regulations 2005 ”;
(b) by inserting after “the Act” — “ except Part IV ”.
16. Regulation 111 amended
(1) Regulation 111(1) is amended as follows:
(a) at the end of paragraph (b) by inserting — “ or ”;
(b) by deleting paragraph (c) and inserting instead — “
(c)
by delivering it, or sending it by prepaid post to the person at the person’s last known place of abode or business or, in the case of proceedings under Part VII or VIII, to any address provided under regulation 127B; or
”.
(2) Regulation 111(4) is amended by deleting “Local Courts” and
inserting instead —“ the Magistrates Court in its civil jurisdiction ”.
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17. Regulation 113A replaced
Regulation 113A is repealed and the following regulations are
inserted instead —“
113A. Prescribed persons before whom affidavit may be
sworn (s. 160D)For the purposes of section 160D(f), the offices of — (a) Director; and
(b)
General Manager Tenure and Native Title Branch; and
(c) Manager; and
(d) Coordinator,
of the Mineral and Title Services Division of the
Department are prescribed as offices and classes of
offices, so that the occupants of those offices are
persons before whom affidavits to be used in a
warden’s court, or to be used before a warden or amining registrar, may be sworn.
113B. Prescribed official for certified documents (s. 161) For the purposes of section 161(4)(a)(iii) the prescribed
officials are —
(a) Director Mineral and Title Services Division; (b)
General Manager Tenure and Native Title Branch of the Mineral and Title Services Division.
”.
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18. Regulation 118 amended
Regulation 118(1) is amended as follows:
(a) by inserting at the end of each of paragraphs (a) and (b) — “ or ”;
(b) in paragraph (d) by deleting “warden” and inserting instead — “ warden’s court ”.
19. Regulation 120A amended
Regulation 120A(4) is amended as follows:
(a) by deleting “Subject to section 135 of the Act, a” and inserting instead — “ A ”;
(b) by deleting “warden’s court.” and inserting instead — “ warden. ”.
20. Heading to Part VII replaced
The heading to Part VII is deleted and the following heading is
inserted instead —“ Part VII — Proceedings in warden’s court
”.
21. Regulation 122 amended
Regulation 122(2) is amended as follows:
(a) by deleting “defendant” and inserting instead — “ respondent ”;
(b) by deleting “warden” and inserting instead — “ warden’s court ”.
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22. Regulation 123 amended
(1) Regulation 123 is amended as follows:
(a) by inserting before “On” the subregulation designation “(1)”; (b) in paragraph (a) by inserting after “time for” and “hearing date” — “ a mention ”;
(c) by inserting at the end of paragraph (a) — “ and ”;
(d) in paragraph (b) by inserting after “of the” — “ mention ”;
(e) in paragraph (c) by deleting “defendant” and inserting instead — “ respondent ”;
(f) by inserting at the end of paragraph (c)(i) — “ or ”.
(2) At the end of regulation 123 the following subregulation is
inserted —“
(2) At a mention hearing the court may —
(a) set a date for the hearing of the proceedings; or (b)
adjourn the proceedings to a further mention hearing; or
(c) make any other order,
or may do any combination of those things.
”.
23. Regulation 124 repealed
Regulation 124 is repealed.
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24. Regulation 125 amended
(1) Regulation 125 is amended by inserting before subregulation (1)
the following subregulation —“
(1a) In this regulation — “summons” means a summons under regulation 123 or a witness summons under regulation 127.
”.
(2) Regulation 125(2) is amended as follows:
(a) by deleting “giving notice to the” and inserting instead — “ an application by the ”;
(b) by deleting “extend the” and inserting instead — “ fix a new ”.
25. Regulation 126 amended
Regulation 126 is amended as follows:
(a) by deleting “defendant” and inserting instead — “ respondent ”;
(b) by deleting “not less than 21 days before the date fixed for the hearing” and inserting instead — “ within 14 days after the service of the summons, ”;
(c) by inserting before “hearing” — “ mention ”;
(d) by inserting a comma after “allow”; (e) by deleting “notice of defence” and inserting instead — “ response ”;
(f) by deleting “copy of the notice” and inserting instead — “ copy of the response ”.
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26. Regulation 127 and 127A replaced by regulations 127 to 127G
Regulations 127 and 127A are repealed and the following
regulations are inserted instead —“ 127. Witness summons
(1) Each party may procure the attendance of a witness to
give evidence or produce documents by means of a
witness summons issued by the court in the form
No. 37 in the First Schedule and served personally on
the witness.(2)
For the purposes of subregulation (1), a witness summons is served personally on a witness if —
(a) it is handed to the witness or, if the witness is a person under a legal disability, to the witness’s parent, guardian or litigation guardian; or (b) in the case that the witness or the witness’s parent, guardian or litigation guardian, as the case may be, does not accept it, it is put down in his or her presence and he or she is advised of the nature of the summons; or (c) it is handed to a person who is authorised in writing to receive documents on behalf of the witness; or (d) it is handed to someone at the witness’s usual who is believed, on reasonable grounds, to have reached 18 years of age.
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(3) A witness who attends in answer to a summons shall be
entitled to —
(a)
an amount that is likely to be sufficient to meet the reasonable expenses of attending the warden’s court; or
(b)
arrangements to enable the witness to attend the warden’s court; or
(c)
the means to enable the witness to attend the warden’s court.
(4)
A witness is not required to attend unless at the time of the service of the summons subregulation (3) has been complied with.
127A. Meaning of “serve”
(1) If under this Part a party is required to serve a
document —
(a)
the party shall serve a copy of the document returned after lodgment bearing the seal of the warden’s court; and
(b)
unless these regulations provide otherwise or the warden’s court otherwise directs, the party shall serve it on each other party within 14 days after the document is lodged.
(2) Subregulation (1)(b) does not apply to a witness
summons.
127B. Residential, business or postal address for service A document lodged in relation to proceedings in the
warden’s court shall contain a residential, business or
postal address for service.
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127C. Documents served by bailiff
(1) If a document is served by a bailiff on behalf of a party
to proceedings in the warden’s court, the bailiff shall,
as soon as practicable after the service but in any event
not less than 7 days before the hearing of the plaint,
give a certificate in writing of the service to the party.(2) The certificate is admissible as evidence and, in the
absence of proof to the contrary, is proof that the
document was served by the bailiff.
127D. Documents served by other persons
(1) If a document is served by a party to proceedings in the
warden’s court, or on behalf of a party by a person
other than a bailiff, the party shall lodge at the office of
the mining registrar an affidavit of service completed
by the person who served the document.(2) The affidavit of service shall be in the form No. 35 in
the First Schedule.
127E. Substituted service
(1) If for any reason it is impractical to serve a document
in the manner set out in this Part, the warden’s court
may, on an application in the form No. 36A by the
person required to serve that document, order that,
instead of using such a manner, such steps be taken as
are specified in the order for the purpose of bringing
the document to the notice of the person to be served
with or given the document.(2) If the warden’s court makes an order under
subregulation (1), the court may order that the
document is to be taken to have been served or given
on the happening of any specified event, or on the
expiry of any specified time.
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127F. Content of an affidavit
(1)
Except as provided in subregulation (2), an affidavit lodged in proceedings in the warden’s court shall be confined to facts to which the person making the
affidavit is able to depose from his or her own
knowledge.(2) An affidavit may contain statements based on
information received by the person making the
affidavit, and believed by that person to be true, if the
affidavit also contains —
(a) the sources of the information; and (b)
the grounds for believing that the information is true.
(3)
Any addition, alteration or erasure in an affidavit shall be initialled by the person making the affidavit and the person before whom the affidavit was sworn or
affirmed.
127G. Prescribed form of copy of evidence For the purposes of section 137(4), a written transcript
is prescribed as the form in which a copy of evidence
may be obtained by a person.
”.
27. Regulation 128 amended
(1) Regulation 128(1) is amended by deleting “costs allowed under
the Local Court Rules 1961.” and inserting instead —
“legal costs determination in force under the Legal
Practice Act 2003 section 210 that applies to the civiljurisdiction of the Magistrates Court.
”;
(2) Regulation 128(2) is repealed.
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(3) Regulation 128(3) is amended as follows:
(a) by deleting “allowance under the Local Court Rules 1961 is” and inserting instead — “ costs to be paid under subregulation (1) are ”;
(b) by deleting “at the trial”.
28. Regulation 129 amended
Regulation 129 is amended by deleting “filed” and inserting
instead —“ lodged ”.
29. Regulation 130 to 134 repealed
Regulation 130 to 134 are repealed.
30. Part VIII inserted
After Part VII the following Part is inserted —
“ Part VIII — Proceedings before warden under
Part IV of the Act
Division 1 — General
137. Interpretation
(1) In this Part, unless the contrary intention appears — “agent” means a person acting for a party under regulation 169(2);
“determination” means a decision, order or
recommendation;
“hearing” means —
(a) a mention hearing; or
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(b)
the hearing of an interlocutory application; or
(c) the substantive hearing of proceedings;
“lodge”, in relation to a document, means to lodge the
document at the office of the mining registrar;
“mention hearing” means a mention hearing under
regulation 138(1) or (2)(c);
“objection” means an objection under Part IV of
the Act;
“party” means a party to proceedings;
“proceedings” —
(a) when used in Division 2, means proceedings section 96(1)(b) or 98; and
(b)
when used in Division 3, means proceedings relating to an application under Part IV in relation to which an objection has been lodged; and
(c) otherwise means proceedings under this Part.
(2) For the purposes of this Part, proceedings are taken to
have commenced when —
(a) an application under section 96(1)(b) or 98; or (b) an objection,
has been lodged.
138. Mention hearing
(1) When proceedings are commenced the mining registrar
shall —
(a)
fix a date and time for a mention hearing before the warden being not less than 45 days from the date of lodgment, unless all parties to the
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proceedings consent to an earlier mention
hearing date; and
(b) advise the parties of the mention hearing date; and (c) in the case of an application for forfeiture — cause copies of the application to be returned to the applicant for service on — (i) each respondent; and
(ii) any mortgagee of a mining tenement to which the application relates.
(2) At a mention hearing the warden may —
(a) issue directions to the parties; or (b) set a date for the substantive hearing of the proceedings; or (c) adjourn the proceedings to another mention hearing.
139. Default determination
(1) Except as provided in the Act, if a party does not
comply with a requirement of this Division, a summons
or an interlocutory order or direction of the warden, the
warden may —
(a)
order the party to pay the costs occasioned by the noncompliance irrespective of the final determination of the proceedings; or
(b)
determine the proceedings without a substantive hearing.
(2) An order under subregulation (1)(a) may direct that
costs be paid forthwith.
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Division 2 — Applications under section 96(1)(b) and 98
140. Commencing proceedings in respect of an application
(1) An application under section 96(1)(b) or 98 shall be in
the form No. 35A in the First Schedule.(2) Every application shall be —
(a)
signed by the applicant or a lawyer or other person authorised by the applicant; and
(b)
lodged with the prescribed fees at the office of the mining registrar.
(3) The applicant shall serve copies of the application
returned after lodgment under regulation 138(1)(c).(4) An application shall not be withdrawn or proceedings
stayed after the application has been served without the
written consent of the respondent or by leave of the
warden.141. Response
(1) When the respondent intends to dispute an application
lodged under regulation 140, the respondent shall,
within 14 days after the service of the application,
lodge at the office of the mining registrar a response in
the form No. 36 in the First Schedule.(2) Every response shall be —
(a)
signed by the respondent or a lawyer or other person authorised by the respondent; and
(b)
lodged with the prescribed fees at the office of the mining registrar.
(3) When a response is lodged the mining registrar shall
forward a copy of it to the applicant.
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142. Settlement, admission and discontinuance
(1) The parties may settle proceedings or consent to any
other order or direction by lodging a written
memorandum to that effect, signed by each party.(2) If a party wants to admit a particular fact alleged in —
(a) an application or response; or (b) particulars under regulation 144; or
(c)
the party shall lodge and serve a written notice of
admission.an invitation to admit under subregulation (3), (3) If a party wants to invite another party to admit a
particular alleged fact the party shall lodge and serve a
written invitation to admit at least 14 days before the
substantive hearing of the proceedings.(4) If —
(a)
a party does not admit a fact when invited to do so; and
(b)
the warden subsequently finds the fact to be proven,
the warden may award the costs of proving that fact
against the party.
(5) An order under subregulation (4) may direct that costs
be paid forthwith.(6) If an applicant wants to withdraw an application, the
applicant shall lodge and serve on each respondent, and
any mortgagee of a mining tenement to which the
application relates, a written notice of withdrawal
before the application has been served.
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143. Joinder
A warden may, at any time during proceedings, make
an order that a person be joined as a party if the warden
is satisfied that the person has a sufficient interest in
the outcome of the proceedings.144. Particulars
(1) A person lodging and serving an application under
regulation 140 or a response under regulation 141 shall
lodge and serve a written statement of particulars of the
application or response —
(a)
at the same time as the person lodges and serves the application or response; or
(b) as directed by the warden at a mention hearing.
(2) The statement of particulars shall contain —
(a)
a summary of the facts relevant to the application or response; and
(b)
the legal basis of the application or response; and
(c)
the basic contentions of the person making the application or response; and
(d)
a list of any documents that the applicant or respondent might tender in evidence at the substantive hearing of the proceedings.
(3) The warden at a mention hearing may order that a party
shall provide further particulars of an application or
response in addition to those provided under
subregulation (1).
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145. Disclosure of documents by applicant
(1) The warden may, at any time during proceedings, order
that an applicant shall provide additional information
by disclosing documents relevant to the proceedings.(2) For the purposes of subregulation (1) the Magistrates
Court (Civil Proceedings) Rules 2005 Part 7 applies so
that —
(a)
a reference to an order under section 16(1)(n) is to be read as a reference to an order under subregulation (1); and
(b)
a reference to a party ordered to provide additional information by disclosing documents is a reference to an applicant who is subject to an order under subregulation (1); and
(c)
a reference to the Court is to be read as a reference to the warden; and
(d)
a reference to a case is to be read as a reference to proceedings under this Division; and
(e)
a reference to the trial is to be read as a reference to a substantive hearing of the proceedings.
(3) An order under subregulation (1) cannot be made
against a respondent.Division 3 — Objections under the Act Part IV
146. Making an objection
(1) An objection shall be in the form No. 16 in the First
Schedule.
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(2) An objection shall be made within —
(a)
where the application being objected to is for a mining tenement relating to private land —
(i) 21 days of the day on which the person required to be given under section 33(1); or
(ii) 35 days after the day on which the application is lodged,
whichever period ends later; or
(b)
in any other case — 35 days after the day the application being objected to is lodged,
or such further period as the warden considers
reasonable.
(3) The objector shall serve a copy of the objection on the
applicant as soon as practicable after the objection is
made.147. Procedure when objection heard together with proceedings under Division 2
When proceedings for an objection are heard together
with proceedings under Division 2 then, even if the
proceedings are not joined, regulations 144 and 145
apply so that —
(a)
a reference to a response under regulation 141 is to be read as a reference to an objection; and
(b)
a reference to a respondent is a reference to the person making the objection; and
(c)
a reference to a party includes the person making the objection; and
(d)
a reference to proceedings includes the proceedings relating to the objection.
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Division 4 — Service
148. Meaning of “serve”
If under this Part a party is required to serve a
document —
(a) the party shall serve a copy of the document returned after lodgment; and (b) unless these regulations provide otherwise or the warden otherwise directs, the party shall serve it on each other party within 14 days after the document is lodged.
149. Residential, business or postal address for service
A document lodged in relation to proceedings before
the warden shall contain a residential, business or
postal address for service.150. Documents served by other persons
(1) If a document is served by a party to proceedings
before the warden, or on behalf of a party by another
person, the party shall lodge at the office of the mining
registrar an affidavit of service completed by the
person who served the document.(2) The affidavit of service shall be in the form No. 35 in
the First Schedule.(3) If the document is served by a bailiff of the warden’s
court, any written certificate of service of the bailiff
lodged by the party —
(a)
is to be taken to be an affidavit of service for the purposes of this regulation; and
(b)
is admissible as evidence and, in the absence of proof to the contrary, is proof that the document was served by the bailiff.
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151. Substituted service
(1) If for any reason it is impractical to serve a document
in the manner set out in this Division, the warden may,
on an application in the form No. 36A in the First
Schedule by the person required to serve that
document, order that, instead of using such a manner,
such steps be taken as are specified in the order for the
purpose of bringing the document to the notice of the
person to be served with or given the document.(2)
If the warden makes an order under subregulation (1), the warden may order that the document is to be taken to have been served or given on the happening of any specified event, or on the expiry of any specified time.
Division 5 — Interlocutory orders and directions by
the warden
152. General powers of the warden in relation to interlocutory orders and directions
(1) In addition to any other power of the warden to make
an interlocutory order or give a direction in this Part, a
warden may, at any stage of proceedings, do all or any
of the following for the purposes of controlling and
managing the proceedings —
(a) make an order that proceedings be heard and determined at another place if — (i) the warden is satisfied that the proceedings could more conveniently or fairly be heard and determined at the other place; or
(ii) the parties consent to the proceedings being heard and determined at the other place;
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(b)
extend the time for complying with any regulation in this Part or any order made by the warden (even if the time for complying has expired), or shorten it;
(c)
adjourn or bring forward a hearing to a specified date;
(d)
stay any proceedings, either generally or until a specified date;
(e) consolidate proceedings;
(f) hear 2 or more proceedings on the same occasion; (g) hold a hearing by audio link or video link (as Act 1906 section 120);
(h) allow a party to amend its application, objection, response or particulars under regulation 144; (i) dispense with any interlocutory proceedings;
(j) as to the hearing of any interlocutory application — (i) direct the parties to confer in order to identify the issues between them and resolve as many as possible before the
hearing and to identify the issues to be
heard; and(ii) direct the parties to file and exchange memoranda before the hearing in order to identify the issues to be heard;
(k)
expedite the listing of proceedings for a substantive hearing if the warden is of the opinion that a party has frivolously or vexatiously instituted or defended proceedings or that the party’s case otherwise has no merit;
9 March 2007 GOVERNMENT GAZETTE, WA 891 Mining Amendment Regulations 2007
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(l)
do anything else that in the warden’s opinion will or may facilitate proceedings being conducted and concluded efficiently, economically and expeditiously.
(2) Without limiting subregulation (1), for the purposes of
the substantive hearing of proceedings or the hearing of
an interlocutory application a warden may do all or any
of the following —
(a)
direct the mining registrar to issue a witness summons referred to in regulation 157, whether on behalf of a party or on the warden’s own motion;
(b)
inspect any document produced at the hearing, and retain it for such reasonable period as is required, and make copies of the document or any of its contents;
(c)
require any person to swear or affirm to answer truly any relevant question put to that person by the warden or any person attending the hearing.
(3) A power of the warden to make an interlocutory order or give a direction includes a power to vary or cancel the order or direction. 153. Applications for interlocutory orders or directions
(1) A party may make an application for an order or
direction of the warden by lodging and serving it in the
form No. 36A in the First Schedule.(2) The application shall be supported by an affidavit that
is lodged and served together with the application.(3) The application must be made at least 7 clear days
before the substantive hearing to which the application
relates.
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Division 6 — Conduct of hearings
154. Conduct of hearings generally
(1) In conducting any hearing the warden —
(a) is to act with as little formality as possible; and (b) is bound by the rules of natural justice; and (c) is not bound by the rules of evidence; and (d)
may inform himself or herself of any matter in any manner he or she considers appropriate.
(2) Subject to subregulation (3), a hearing is to be
conducted in public.(3) If the warden is satisfied that it is desirable to do so by
reason of the confidential nature of any evidence or
matter or for any other reason, the warden may direct
that the hearing be conducted wholly or partly in
private.(4)
If the warden gives a direction under subregulation (3) the warden may give directions as to the persons who may be present at the hearing.
(5) Irrespective of whether the warden gives a direction
under subregulation (3), the warden may order that —
(a) any evidence given before the warden; or (b) the content of any documents produced to the warden,
during any part of the hearing is not to be published except in the manner and to the persons specified by the warden.
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155. Attendance at mention hearings and interlocutory hearings
(1) A party must attend a mention hearing or the hearing of
an interlocutory application —
(a) through a lawyer or agent; or (b) if the warden so orders — in person.
(2)
Despite subregulation (1), a warden may conduct a mention hearing or the hearing of an interlocutory application in the absence of a party, including any lawyer or agent of the party —
(a) on an application under subregulation (3); or (b) otherwise, if the warden thinks fit.
(3) If it is impracticable, by reason of distance, illness or
otherwise, for a party to attend a mention hearing or an
interlocutory hearing, either through a lawyer or agent
or in person, the party may apply in writing to the
warden for the hearing to be conducted in the absence
of the party.(4) An application under subregulation (3) shall be —
(a) lodged at least 7 days before the day of the hearing; and (b) accompanied by written submissions that are sufficient to enable the hearing to be conducted in the absence of the party.
156. Attendance at substantive hearings of proceedings
(1) Unless the warden orders otherwise, a party shall
attend the substantive hearing of proceedings in person,
regardless of whether the party’s lawyer or agent is
also present.(2) If a party is a body corporate, an officer of the body
corporate who is authorised to attend on behalf of the
894 GOVERNMENT GAZETTE, WA 9 March 2007 Mining Amendment Regulations 2007
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body shall be taken to be the party for the purposes of
subregulation (1).
Division 7 — Evidence
157. Summons of witness
(1) Each party that seeks to procure the attendance of a
witness to give evidence or produce documents may do
so by means of a witness summons issued by the
mining registrar in the form No. 37 in the First
Schedule and served personally on the witness.(2)
For the purposes of subregulation (1), a witness summons is served personally on a witness if —
(a) it is handed to the witness or, if the witness is a person under a legal disability, to the witness’s parent, guardian or litigation guardian; or (b) in the case that the witness or the witness’s parent, guardian or litigation guardian, as the case may be, does not accept it, it is put down in his or her presence and he or she is advised of the nature of the summons; or (c) it is handed to a person who is authorised in writing to receive documents on behalf of the witness; or (d) it is handed to someone at the witness’s usual who is believed, on reasonable grounds, to have reached 18 years of age.
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(3) A witness who attends in answer to a summons shall be
entitled to —
(a)
an amount that is likely to be sufficient to meet the reasonable expenses of attending before the warden; or
(b)
arrangements to enable the witness to attend before the warden; or
(c)
the means to enable the witness to attend before the warden.
(4) A witness is not required to attend unless at the time of the service of the summons subregulation (3) has been complied with. 158. Time for service of summonses
(1) A witness summons shall be served not less than
30 days before the date fixed for the relevant hearing.(2) Where a witness summons has not been served within
the prescribed time, the party seeking to rely on the
witness summons may apply in writing to the mining
registrar to fix a new date for the hearing and issue an
amended witness summons.(3) On an application under subregulation (2), the mining registrar may fix a new date for the hearing and issue an amended witness summons. 159. Content of an affidavit
(1) Except as provided in subregulation (2), an affidavit
lodged in proceedings before the warden shall be
confined to facts to which the person making the
affidavit is able to depose from his or her own
knowledge.
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(2) An affidavit may contain statements based on
information received by the person making the
affidavit, and believed by that person to be true, if the
affidavit also contains —
(a) the sources of the information; and (b)
the grounds for believing that the information is true.
(3) Any addition, alteration or erasure in an affidavit shall be initialled by the person making the affidavit and the person before whom the affidavit was sworn or affirmed. 160. Production of documents before hearing
(1) Where a witness summons requires a person to produce
documents, but does not require the person to give
evidence, at a hearing the person may, instead of
producing the documents at the hearing, lodge them,
together with a list of the documents, with the mining
registrar at least 7 days before the first day of the
hearing.(2) When documents are lodged together with a list of the
documents under subregulation (1), the mining
registrar shall endorse on the list that the mining
registrar has received all of the documents specified on
the list and return a copy of the endorsed list to the
person lodging the documents.(3)
The mining registrar may, in accordance with any directions of the warden, permit a party to inspect documents lodged by another party under
subregulation (1).
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161. Directions for expert witnesses
(1) A party shall not adduce expert evidence at a hearing
except in accordance with directions given by the
warden.(2) If the warden directs a party to lodge and serve a
statement of an expert witness, the statement shall set
out, or be accompanied by a document setting out —
(a) the full name of the expert; and (b) details of the expert’s qualifications to give the evidence; and (c) to the extent practicable, details of any material on which the expert has relied in reaching his or her opinion.
162. Party may adduce affidavit evidence
(1)
A party may, if the another party does not object, adduce the evidence of a witness at a hearing by tendering an affidavit of the witness.
(2) A party wishing to adduce affidavit evidence under
subregulation (1) shall lodge and serve the affidavit at
least 14 days before the first day of the hearing.(3) The affidavit may be tendered in the absence of the
deponent unless an objection is lodged under
subregulation (4).(4) A party served with a copy of the affidavit may, within
7 days after that service, lodge a written objection to
the affidavit being tendered in the absence of the
deponent.
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163. Records of evidence
(1) A warden shall ensure that evidence given in
proceedings is recorded electronically or by written
transcript.(2) Any party to any proceedings in which the evidence of
a witness in which evidence has been recorded in
accordance with this regulation is entitled to obtain a
copy of that evidence in the form of a written transcript
upon payment of the fee set out in the Second
Schedule.(3) Each determination of a warden, and the reasons for the
determination, shall be reduced to writing, and signed
by the warden, and shall be recorded in a register kept
for the purpose.(4) Any person may obtain a copy of the determination
referred to in subregulation (3) upon payment of the fee
prescribed in the Second Schedule.164. Return of documents and other exhibits after hearing
(1) If an exhibit tendered at a hearing is retained by the
warden without being received into evidence, a person
who was lawfully entitled to the possession of the
exhibit before it was tendered is not entitled to the
return of that exhibit until the publication of the
warden’s determination.(2) If an exhibit is received into evidence at a hearing, a
person who was lawfully entitled to the possession of
the exhibit before it was received is not entitled to the
return of that exhibit —
(a)
if no appeal against a determination of the warden is made, until 21 days after the day on which the determination is given; or
9 March 2007 GOVERNMENT GAZETTE, WA 899 Mining Amendment Regulations 2007
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(b)
if an appeal against the determination of the warden is lodged, until the appeal has been dealt with.
(3) The mining registrar shall give written notice to a
person of the person’s entitlement to the return of an
exhibit under subregulation (1) or (2).(4) The notice shall be given as soon as practicable after
the entitlement arises.(5) If the person does not take possession of the exhibit
within 30 days after the person receives the notice, the
mining registrar may dispose of the exhibit as the
mining registrar thinks fit.(6) A document produced at a hearing but not tendered as
an exhibit shall, in accordance with the directions of
the warden, be returned to the party that produced the
document.
Division 8 — Costs
165. Costs
(1) Except as ordered under this regulation, regulation 139
or 142, each party is to bear the party’s own costs.(2) In addition to the power to award costs under
regulations 139 and 142, a warden hearing and
determining proceedings under Division 2, including
interlocutory applications related to those proceedings,
may make an order for a party’s costs to be paid by
another party.(3) One order under subregulation (2) may be made in
relation to 2 or more proceedings heard and determined
on the same occasion under Division 2 even if those
proceedings are not joined.
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(4) Subject to subregulation (6) and in addition to the
power to award costs under regulation 139, a warden
hearing and determining proceedings under Division 3
may make an order for costs against a party if the
warden is satisfied that the party —
(a)
frivolously or vexatiously commenced or defended the proceedings, or any step in the proceedings; or
(b)
otherwise occasioned undue delay in the proceedings.
(5) One order under subregulation (4) may be made in
relation to 2 or more proceedings heard and determined
on the same occasion under Division 3 even if those
proceedings are not joined.(6) If a warden makes an order for the payment of costs,
those costs shall be in accordance with the scale of
costs set out in the Fourth Schedule.(7)
The Magistrates Court (Civil Proceedings) Rules 2005 Part 15 Division 1 apply in relation to proceedings with the necessary modifications and, in particular,
references in those rules —
(a)
to a case are to be read as references to proceedings under this Division; and
(b)
to the court are to be read as references to the warden; and
(c)
to the Registrar are to be read as references to the mining registrar; and
(d)
to a judgment are to be read as references to a determination of the warden under this Division; and
(e)
to an approved form are to be read as references to a written form; and
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(f) to court and bailiff fees are to be read as references to fees prescribed in the Second Schedule item 13.
166. Warden’s review of decisions of mining registrar
(1) A person dissatisfied by an assessment of costs made
by a mining registrar may apply to the warden for a
review of the assessment.(2) The application must be made within 21 days after the
date of the mining registrar’s assessment and be
conducted as if it were an interlocutory application
under this Part.(3) On a review the warden may —
(a) affirm the mining registrar’s assessment; or (b) vary the mining registrar’s assessment; or (c) set aside the mining registrar’s assessment and substitute his or her own assessment.
167. Security for costs
(1) A warden may, on application made by a respondent in proceedings under Division 2, order an applicant in the proceedings to give security for costs. (2) If an order is made under subregulation (1), monies
comprising the security are to be paid to the Director
General of Mines who shall hold the money and
disburse it in accordance with any order of the warden.168. Recovery of costs
(1) A person to whom costs are to be paid under a
determination of the warden under this Part may
enforce it by lodging a certificate of the assessment of
the costs given by the mining registrar, and an affidavit
902 GOVERNMENT GAZETTE, WA 9 March 2007 Mining Amendment Regulations 2007
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stating to what extent it has not been complied with,
with a court of competent jurisdiction.
(2) A certificate that is lodged with a court under
subregulation (1) shall be taken to be a judgment of
that court and may be enforced accordingly.Division 9 — Miscellaneous
169. Representation
(1) A party is entitled to be represented by a lawyer. (2) A warden may, if the warden is of the view that
exceptional circumstances exist, give leave to a party to
be represented by a person other than a lawyer.(3) If a party is represented by a lawyer or agent, or there
is a change in that representation, the party must ensure
that the warden and the other parties are notified in
writing of that representation or change in
representation.170. Warden may act on its own initiative
(1) A warden hearing proceedings may exercise his or her
powers on the application of a party or on his or her
own initiative unless the Act or these regulations or
another written law provides otherwise.(2) A warden may make an order or give a direction on his
or her own initiative with or without —
(a)
allowing any of the parties to make submissions; or
(b) hearing the parties.
(3) If a warden decides to allow any party to make
submissions before making an order on his or her own
initiative, the warden shall notify each party likely to
9 March 2007 GOVERNMENT GAZETTE, WA 903 Mining Amendment Regulations 2007
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be affected by the order of how and when the
submissions are to be made.
(4) If the warden decides to hear any party before making an order on his or her own initiative, the warden shall notify each party likely to be affected by the order of the time and place of the hearing. 171. Practice directions
The Chief Magistrate from time to time may issue,
amend or cancel practice directions.172. Application of sections 142 and 146
Sections 142 and 146 apply in relation to proceedings
and, for that purpose, references in those sections —
(a) to proceedings in the warden’s court are to be taken to include references to proceedings under this Part; and (b) to the warden’s court are to be taken to include references to the warden.
173. Copy of determination
(1) When a determination of any proceedings has been
made by a warden, a determination in the form No. 38
in the First Schedule may be signed by the warden or
mining registrar.(2) A copy of the determination shall, on payment of the
prescribed fee, be delivered to any person applying for
it.174. Offences
A person who —
(a)
having been served with a summons to attend before the warden, fails without reasonable
904 GOVERNMENT GAZETTE, WA 9 March 2007 Mining Amendment Regulations 2007
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excuse to attend in obedience to the summons;
or
(b) having been served with a summons to produce before the warden any document, fails without reasonable excuse to comply with the summons; or
(c) misbehaves before the warden, wilfully insults the warden, or wilfully interrupts proceedings before the warden; or (d) makes, before the warden, a statement that — (i) the person knows, or ought to know, is false or misleading in a material particular; or
(ii) omits anything without which the statement is, so far as the person knows or ought to know, misleading in a material particular;
or
(e)
refuses to comply with a requirement of the warden under regulation 152(2)(c),
commits an offence.
Penalty: a fine of $10 000.”.
31. First Schedule amended
(1) The First Schedule is amended in the list of Forms at the
beginning of the Schedule as follows:
(a) in item 15 by inserting after “Forfeiture” — “ under section 96(1)(a) ”;
(b) by deleting items 36 to 41 and inserting instead —
“
35A. Application for Forfeiture under section 96(1)(b) or 98.
9 March 2007 GOVERNMENT GAZETTE, WA 905 Mining Amendment Regulations 2007
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36. Response.
37. Summons to Witness.
38. Judgment of a Warden’s Court / Determination of a Warden.
”.
(2) The First Schedule is amended in Form 15 by inserting after
“FORFEITURE” —“ UNDER SECTION 96(1)(b) ”. (3) The First Schedule is amended by deleting Form 16 and
inserting instead —
“
Form 16 WESTERN AUSTRALIA
Mining Act 1978
(s. 42, 59, 70D, 75, 97A and r. 120A, 146)
OBJECTION No. To: The Warden
(a) Mineral Field affected (a) Mineral Field…… The undersigned objects to (b) Insert particulars of the (b) matter objected to and
mining tenement
application affected for the following reasons — (c) Set out grounds for (c) objection
(d) Particulars of objector: (d) (i) Full name (i) (ii) Residential or (ii) business address
(iii) Phone / Fax No (iii) (iv) Reference (iv)
(e) Signature of DATED this ..……… day of ………… 20……… objector/agent/lawyer (e) .............................................................................. THE TENEMENT APPLICANT AND OBJECTOR WILL BE ADVISED OF THE
DATE SET BY THE MINING REGISTRAR FOR THE MENTION HEARING
FOR THE APPLICATION (See Note).
906 GOVERNMENT GAZETTE, WA 9 March 2007 Mining Amendment Regulations 2007
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OFFICIAL USE Received at ………a.m./p.m. on ……………… 20……......
..................................................................................................Mining Registrar
Note: A “mention hearing” is an initial hearing where the warden may give
directions to the parties, set a hearing date and/or adjourn to a further mention hearing. A party who does not wish to attend in person or by lawyer or agent on the nominated mention hearing date must make written application not less than 7 days before the hearing. Costs may be awarded against a party for
nonattendance.”.
(4) The First Schedule is amended in Form 23 by deleting “& 134”. (5) The First Schedule Form 33 is amended as follows:
(a) by deleting “(Regs. 48 & 121)” and inserting instead — “ (r. 121) ”;
(b) by deleting “defendant” and inserting instead — “ respondent ”;
(c) by deleting “Defendant” and inserting instead — “ Respondent ”;
(d) by deleting “Subpoena” and inserting instead — “ Summons to Witness ”.
(6) The First Schedule Form 34 is amended as follows:
(a) by deleting “Defendant” and inserting instead — “ Respondent ”;
(b) by deleting “subpoena” and inserting instead — “ summons ”;
9 March 2007 GOVERNMENT GAZETTE, WA 907 Mining Amendment Regulations 2007
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(c)
you must file a notice of defence in accordance with
by deleting “If you intend to dispute the plaintiff‘s claim “
IF YOU INTEND TO DISPUTE THE PLAINTIFF’S CLAIM
YOU MUST LODGE A NOTICE OF RESPONSE INACCORDANCE WITH REGULATION 126.
”.
(7) The First Schedule is amended by deleting Forms 35 to 38 and
inserting instead —
“
Form 35 WESTERN AUSTRALIA
Mining Act 1978
(r. 127D, 150)AFFIDAVIT OF SERVICE In the Warden’s Court at
Before the Warden at(delete whichever is not applicable) (a) Select an option
or specify other No ........ / .......... (a) Plaint / Application / Other
document being
served
(b) Name and Plaintiff / Applicant address (b) AND
(c) Name and Respondent / Objector address of (c) tenement holder
(for service)(d) Full name and (d) I, address
908 GOVERNMENT GAZETTE, WA 9 March 2007 Mining Amendment Regulations 2007
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make oath and say that I did on the …… day of ……………… 20……, duly serve a copy of the application (which is marked “A” and annexed hereto) as
follows —
Full name of person on whom service effected:
……………………………………………………………
Manner of service:
……………………………………………………………
Address where service effected:
……………………………………………………………Sworn before me at
this ......………… day of ..…………………… 20………
............................................................................................ (Experienced lawyer/Warden/Mining Registrar/Justice of the Peace.)
Form 35A WESTERN AUSTRALIA
Mining Act 1978
(r. 140)APPLICATION FOR FORFEITURE
UNDER SECTION 96(1)(b) OR 98No. Before the Warden at
(a) Name and Applicant for forfeiture address of (a) applicant
V
(b) Name and Respondent address of (b) tenement holder
(for service)(c) Mining tenement The Applicant claims that the Respondent has failed to number comply with the expenditure conditions in relation to
(c)(d) Relevant year for the year ending —
(d)
and applies for the mining tenement to be forfeited.DATED this ………… day of ………………… 20……
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(e) Signature of applicant/lawyer/
authorised
representative (e) ......................................................................................
OFFICIAL USE Received at ..........…. a,m./p.m. on the ......………… day of …………………… 20 ……
with the prescribed application fee.……………………………………………….
Mining Registrar
SUMMONS TO RESPONDENT:
YOU ARE HEREBY REQUIRED TO ATTEND A
MENTION HEARING (see Note) before the Warden at
……………………........... at ............……a.m./p.m. on
the ……….. day of …………………… 20 ..........to answer the application for forfeiture as outlined above.
If at a mention hearing a date for the hearing and
determination of the application for forfeiture is fixed,
you may apply for the issue of a witness summons to
compel the attendance of any witnesses and/or
production of relevant documents.
IF YOU INTEND TO DISPUTE THE APPLICANT’S
CLAIM you must file a response in accordance withregulation 141.
STAMP Dated this ….... day of ……………………….... 20........ OF
MINING REGISTRAR
………………………………………………..
Mining Registrar
Note: A “mention hearing” is an initial hearing where the warden may give
directions to the parties, set a hearing date and/or adjourn to a further mention hearing. A party who does not wish to attend in person or by lawyer or agent on the nominated mention hearing date must make written application not less than 7 days before the hearing. Costs may be awarded against a party for
non-attendance.
ENDORSEMENT
This is the document marked “A” referred to in the
annexed affidavit of
sworn before me at ...........................................................this ………… day of …………………… 20…....
.........................................................................
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Form 36 WESTERN AUSTRALIA
Mining Act 1978
(r. 126, 141)RESPONSE In the Warden’s Court at
Before the Warden at(delete whichever is not applicable)
(a) Select an option (a) Plaint / Application Affecting tenement
for forfeiture ........../.....….... No. ……./……..
(b) Name and Plaintiff / Applicant for forfeiture address (b) AND
(c) Name and Respondent address of (c) tenement holder (d) Grounds of TAKE NOTICE that I intend to defend the defence plaint/application in this proceeding on the following
grounds —
(d)DATED at ……… this ……… day of ...………20…… (e) Signature of applicant/lawyer/ authorised representative (e) ......................................................................................
OFFICIAL USE Received at .......................a.m./p.m. on ............................
with fee of $.....................................................................................................
Mining Registrar
ENDORSEMENT
This is the document marked “A” referred to in the
annexed affidavit of
sworn before me at ...........................................................this ………… day of …………………… 20…....
...............................................................
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Form 36A WESTERN AUSTRALIA
Mining Act 1978
(r. 127E, 151, 154)Tenement No. .………. INTERLOCUTORY APPLICATION In the Warden’s Court at ...................................................
Before the warden at .........................................................
(delete whichever is not applicable)
(a) Insert number of (a) plaint/application ………………………………………………………….... /objection
…………………………………………………………… …………………………………………………………….
In the matter of: (b) Names of parties (b) AND (b) (c) Name of party (c) I / WE making the …………………………………………………………… application …………………………………………………………… …………………………………..………..………..…… (d) State order (d) (see Note 1) sought (e) Applicant’s (e) details OR Residential or business address: lawyer/agent ……………………………..…………………………… acting on behalf
…………………………………………………..………. Tel No: …………………………………..…………….... Fax No: …………………………………………………. Email: …………………………………………………… Reference (if any): ………………………………………
(f) Address for (f) (see Note 2) service by other Residential or business address: party/parties
……………………………..…………………………… ……..……………………………………………………
(g) Signature of (g) applicant or ………………………….……….. Date ……………....... lawyer/agent
OFFICIAL USE Received at……..… this ….. day of …………… 20 ..
With fee of $ ..……Note 1: This application is to be supported by affidavit outlining the reasons the order is sought, including the relevant facts.
Note 2: This application must be served on the other party/parties and an affidavit as proof of service must be lodged.
912 GOVERNMENT GAZETTE, WA 9 March 2007 Mining Amendment Regulations 2007
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ENDORSEMENT
This is the document marked “A” referred to in the
annexed affidavit of ...........................................................
sworn before me at ............................................................this ………… day of …………………… 20…....
...............................................................
Form 37
WESTERN AUSTRALIA Mining Regulations 1981 (r. 127, 157)
SUMMONS TO WITNESS In the Warden’s Court at ...................................................
Before the warden at .........................................................(delete whichever is not applicable)
(a) Tenement or
tenement
application No.(a) No. ......... / .......... (b) Name and Plaintiff / Applicant / Objector address (delete (b) inapplicable) AND
(c) Name and Tenement Holder (Respondent) / Tenement Applicant address (delete (c) inapplicable) TO: (d) Full name and (d) address of person being summoned
YOU are hereby summoned (see Note 1) to attend before
the warden/Warden’s Court at(e) Place of hearing (e) (f) Time and Date of at (f) ………….a.m./p.m. on the ........……day hearing of……………....................... 20…….................
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(g) Objector to give evidence on behalf of the /applicant/ (g) .…………………………. plaintiff/
respondent
(h) State the (h) and to produce at the hearing particular …………………………………………………………… documents …………………………………………………………… required to be …………………………………………………………… produced …………………………………………………………… (i) Nature of claim (i) as stated in …………………………………………………………… application or …………………………………………………………… objection …………………………………………………………… (j) Phone / fax / or (j) other contact for …………………………………………………………… party initiating …………………………………………………………… the summons (see Note 2) Dated at ……………………… this …………… day of
SEAL OF ......…………………… 20…… WARDEN’S COURT /
STAMP OF MINING REGISTRAR ............................................................... Mining Registrar ............................................................... Mineral Field Note 1: A person failing to attend as directed is liable to a fine of $10 000. Note 2: This summons must be served PERSONALLY on the witness (see
regulation 127 and 157) and the witness is entitled to an amount sufficient
for the purposes of regulation 127(3) or 157(3), as the case requires.
Received $ ................. Conduct money
_________________ ........................................... _________________ Signature _________________ _________________ ENDORSEMENT _________________ This is the document marked “A” referred to in the
annexed affidavit of .........................................................
sworn before me at ...........................................................
this ………… day of …………………… 20…...................................................................
914 GOVERNMENT GAZETTE, WA 9 March 2007 Mining Amendment Regulations 2007
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Form 38 WESTERN AUSTRALIA Mining Regulations 1981
(r. 129, 173)JUDGMENT OF A WARDEN’S COURT / DETERMINATION OF A WARDEN Tenement No. .………. In the Warden’s Court at ...................................................
Before the Warden at ........................................................(delete whichever is not applicable)
(a) Specify either the (a) application for forfeiture or No. ........ / .…..... plaint number (b) Specify full name (b) and address of either forfeiture applicant or
plaintiff AND
(c) Specify full name (c) and address of
tenement holder(d) Insert result (d) AND the Court / Warden directs — (e) Set forth the (e) decision in full
(or attach)DATED at .........................................................................
this ...................... day of ................................... 20 ..........SEAL
OF WARDEN’S
COURT / STAMP OF
MINING REGISTRAR ...................................................Warden/Mining Registrar ”.
(8) The First Schedule is amended by deleting Forms 39 to 41.
9 March 2007 GOVERNMENT GAZETTE, WA 915 Mining Amendment Regulations 2007
r. 32
32. Second Schedule amended
(1) The Second Schedule item 13 is amended by deleting
“Warden’s Court Fees” and inserting instead —“ Fees relating to proceedings under Parts VII and VIII ”. (2) The Second Schedule item 13 is amended as follows:
(a) in paragraph (i) by inserting after “a plaint” — “ or an application ”;
(b) in paragraph (i) by deleting “defendant” and inserting instead — “ respondent ”;
(c) in paragraph (i) by deleting “subpoenas” and inserting instead — “ summonses ”;
(d) in paragraph (ii) by deleting “Defence, including notice of defence” and inserting instead — “ Response ”;
(e) in paragraph (ii) by deleting “subpoenas” and inserting instead — “ summonses ”;
(f) by deleting paragraph (v); (g) in paragraph (vii) by deleting “filed” in both places where it occurs and inserting instead — “ lodged ”.
916 GOVERNMENT GAZETTE, WA 9 March 2007 Mining Amendment Regulations 2007
r. 33
33. Fourth Schedule inserted
After the Third Schedule the following Schedule is inserted —
“ Schedule 4 — Scale of costs for proceedings under
Part IV of the Act
[r. 165(6)]
1. Interpretation
In this Schedule —
“C” stands for counsel;
“counsel” means a lawyer, other than a senior counsel,acting as a barrister;
“junior lawyer” means a lawyer who has been admitted for
less than 5 years in any jurisdiction in Australia;
“JL” stands for junior lawyer;
“PL” stands for paralegal;
“SC” stands for senior counsel;
“senior counsel” means a lawyer who has been appointed aSenior Counsel or Queen’s Counsel in an Australian jurisdiction and whose appointment is afforded recognition by the Chief Justice of the Supreme Court of Western Australia;
“senior lawyer” means a lawyer who has been admitted for
5 years or more in any jurisdiction in Australia;
“SL” stands for senior lawyer.
2. Hourly rates
The hourly and daily rates set out in the Table to this clause are the maximum hourly and daily rates, inclusive of GST, which shall be used to calculate the dollar amounts in the
scale of costs set out in the Table to clause 3.
9 March 2007 GOVERNMENT GAZETTE, WA 917 Mining Amendment Regulations 2007
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Table — Hourly and daily rates
Maximum
Fee Earner allowable hourly rates
Senior Lawyer hourly rate $297 Junior Lawyer hourly rate $209 Clerk/Paralegal hourly rate $99 Counsel fees charged as a disbursement
to lawyers or charged by in-house
Counsel:
Counsel (C) hourly rate $231
daily rate $1 606
Senior Counsel (SC) hourly rate $385
daily rate $2 662
3. Scale of costs
Unless a lawyer has made a written agreement as to costs
with a client under the provisions of the Legal Practice
Act 2003 section 221, the costs of or in relation to a party to
proceedings (inclusive of GST and counsel fees but
exclusive of other disbursements) —
(a) recoverable from one party by another party; or
(b)
shall not exceed the amounts set out in the Table to this
clause.payable by a party to that party’s own lawyer,
Table — Scale of costs
Fee Maximum
Item Time Amount
Earner $
1. Commencing proceedings —
(a) Application or objection,
including instructions 297 For each additional respondent 33 (b) Particulars (including
preparation and lodgment) 8 hours SL 2 376
918 GOVERNMENT GAZETTE, WA 9 March 2007 Mining Amendment Regulations 2007
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Fee Maximum
Item Time Amount
Earner $
2. Response —
(a) Lodging a response 154
(b) Particulars (including preparation and lodgment) 8 hours SL 2 376 3. Disclosure —
Giving additional disclosure where
ordered by the warden 3 hours JL 627 4. Inspection —
Inspection and giving inspection per hour JL 209 5. Interlocutory applications —
Proceedings and/or responses to 1 day
applications (including all preparation
documentation and preparation for ½ day
hearing) hearing C 2 409 Note: In relation to the above, if the proceedings do not commence and settle or adjourn on the day of the hearing then the Assessing Officer shall allow such amount as is
reasonable in the circumstances.
6. Applications and attendances before
the warden 1 hour SL 297 7. Offers of settlement, notices, practice directions, applications, declarations, memoranda, affidavits —
(a) Offers of settlement 2 hours SL 594
(b) Acceptance of offer of
settlement 2 hours SL 594
(c) Other notices referred to or required by regulations or practice directions not
otherwise specified in this scale 99 (d) Preparation lodging and service
of affidavits and statutory declarations not otherwise provided for per hour SL 297 (e) Drawing and serving of interlocutory orders (where
ordered or required) 2 hours JL 418 8. Getting up —
Preparation for hearing (includes work reasonably and necessarily undertaken prior to commencement of
proceedings) 50 hours SL 14 850 9. Hearing —
(a) Fee on brief for Counsel i.e. 2 days first day of hearing and preparation C 4 818 preparation 1st day of trial
9 March 2007 GOVERNMENT GAZETTE, WA 919 Mining Amendment Regulations 2007
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Fee Maximum
Item Time Amount
Earner $
(b) Fee on brief for Senior Counsel 2 days
i.e. first day of hearing and preparation preparation (where 2 or more 1st day of
Counsel are certified for) trial SC 7 986
(c) Counsel fee for the second and
each successive day of hearing C 1 606 (d)
Counsel fee for Senior Counsel for second and each successive day of hearing (where 2 or more Counsel are certified for)
SC
2 662
(e)
Instructing lawyer attending hearing, where certified for
(f)
Clerk attending hearing per hour JL 209 Note: In relation to paragraphs
(a) — (f) if —
(1) The hearing lasts less than
2 hours; or(2) The hearing does not commence
and settles or adjourns on the
day of the hearing,then the Assessing Officer shall allow
such amount as is reasonable in thecircumstances.
(g) Attending on reserved
determination per hour SL 297
10. Mention hearings per hour SL 297 11. Determinations —
(a) Settling and extracting
determination
(i) with appointment 1 hour JL 209
(ii) without appointment 154 (b) Issue of certified copy of
determination 0.5 hours PL 99 12. Enforcement
Lodgment of an application to
enforce a determination pursuant to
Civil Judgments Enforcement
Act 2004 154 13. Registration of determinations Registration of determinations including those under Service and
Execution of Process Act 1992
(Cwlth) 154 14. Assessment of costs including
drawing bill —
(a) Lodgment of bill of costs 33
(b) Drawing bill of costs, copies )
and service ) Such amounts as
(c) Making an objection to a bill ) SL are reasonable in (d) Assessment of costs (including ) the circumstances the time spent in preparing for ) the assessment) )
920 GOVERNMENT GAZETTE, WA 9 March 2007 Mining Amendment Regulations 2007
r. 33
Fee Maximum
Item Time Amount
Earner $
15. Copying —
Photocopies where necessary,
including of documents for which
allowance is otherwise made in this
scale per page 1.00 16.
Review by warden of a decision of a Amount
mining registrar calculated in accordance with
item 5
17. Accounts and inquiries Such amounts as Attending on taking accounts, are reasonable in
inquiries SL the circumstances 18. Other work —
(a) Time reasonably spent by a SC 385
lawyer on work requiring the SL 297 skill of a lawyer (of the standing C 231 indicated) but not covered by JL 209
any other item per hour PL 99 or
(b) Time reasonably spent by a paralegal of a lawyer, on work not covered by any other item or by paragraph (a)
19. Disbursements —
In addition to the fees and charges allowed under this Schedule —
(a) As between lawyer and client, a lawyer may charge and be allowed disbursements necessarily or reasonably incurred; and (b) As between party and party, a party may be allowed disbursements necessarily or reasonably incurred. 20. — Allowances for witnesses proceedings in a case may include a reasonable allowance for —
(a)
witnesses called because of their professional, scientific or other special skill or knowledge; and
(b)
witnesses called other than those covered in paragraph (a). In fixing an allowance for witnesses under paragraph (b) including the applicant and respondent, the Assessing Officer may have regard to the amount of salary, wages or income (if any) actually lost by the witness.
”.
By Command of the Governor,
M. C. WAUCHOPE, Clerk of the Executive Council.
9 March 2007 GOVERNMENT GAZETTE, WA 1
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