O'Halloran and Lane v the Electrolytic Zinc Company of Australasia
[1989] TASSC 19
•2 March 1989
Serial No 12/1989
List “A”
CITATION:O'Halloran and Lane v The Electrolytic Zinc Company of Australasia [1989] TASSC 19; A12/1989
PARTIES: O'HALLORAN
LANE
v
THE ELECTROLYTIC ZINC
COMPANY OF AUSTRALASIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 28/1988
DELIVERED ON: 2 March 1989
JUDGMENT OF: Underwood J
Judgment Number: A12/1989
Number of paragraphs: 37
Serial No 12/1989
List "A"
File No LCA 28/1988
O'HALLORAN and LANE v THE ELECTROLYTIC ZINC
COMPANY OF AUSTRALASIA
REASONS FOR JUDGMENT UNDERWOOD J
2 March 1989
This is an appeal from a determination of a Warden's Court of Mines made by a Warden sitting without assessors.
The Proceedings in the Court of Mines
On the 21 October 1988 an application for forfeiture of a lease came on for hearing before the Warden of the Court of Mines for the North Western District. The application complied with the provisions of reg44 of the Mining Regulations, 1930 ("the regulations") and provided:–
"We the Trustees of the Parish of Zeehan hereby apply for the forfeiture of mineral leases Lease No 123 M47 (sic) held by Electrolytic Zinc Co Aust Ltd and situated at the Comstock Zeehan on the ground that ......".
Certain grounds were then set out and an application for the lease of the land and the prescribed fee of $300.00 was said to be forwarded with the application for forfeiture. The document, dated the 24 July 1988, was signed "M G O'Halloran David Lane TRUSTEES".
The proceedings before the Warden were somewhat unusual. They began with the Warden saying "Right, well now, the Trustees of the Parish of Zeehan, who represents them?" A person then identified himself as "Rev Tseglakoff". The Warden asked the Rev Tseglakoff, "There's one thing that does puzzle me, the Trustees of the Parish of Zeehan, what identity do they have? Are they a firm or what?" Before an answer to that enquiry could be made, counsel representing the Electrolytic Zinc Company of Australasia Ltd (the respondent) intervened and submitted that the Rev Tseglakoff had no right to be heard because he was not a legal practitioner. The Warden then made further enquiry of the Rev Tseglakoff and was told by him that he was the secretary of the trust pursuant to a trust deed and he offered to show the Warden a copy of the deed. Again, counsel for the respondent intervened with a submission that the secretary of the trust had no locus standii. The Warden asked the Rev Tseglakoff what document he had and upon him proffering what he called a copy of the trust deed of the Parish of Zeehan with an explanation that the original was with a court in Hobart, counsel for the respondent again intervened. He submitted that the document was not admissible "in accord with the rules of evidence". The Warden said he would look at the document de bene esse. He observed that it was a photocopy. There followed an exchange between the Warden and counsel for the respondent which is difficult to follow but concerned the "admissibility" of the document. Without apparently reaching any conclusion with respect to the document proffered by the Rev Tseglakoff, the Warden said to him "Yes well you'll need to satisfy me as to the identity of the objector (sic) Mr Tseglakoff in some fashion or other. At the moment it doesn't appear that this objector is a person, if you understand. I'm talking about a legal person … So you need to satisfy me in respect to that as a preliminary matter." The Rev Tseglakoff's only response was "Yes sir" but, when asked by the warden, "So how do you propose to do that?", a person arose from the body of the court room saying, "Excuse me sir could I just come up there for a sec?"
This person then stated he was the grantor of the trust and that his name was "His Grace, the most noble, the Duke of Avram, Christian name John Charlton". A somewhat indecorous exchange then occurred between the Warden and the intervener concerning the appropriate name by which the intervener should be addressed. It concluded with the Warden advising the intervener that if he did not cease arguing with him he would be "locked up for contempt".
Shortly afterwards, a person who identified himself as David Cameron Lane came forward. Mr Lane told the Warden his full name and that he was "trustee of the Parish of Zeehan". The transcript of proceedings records what next occurred as follows:–
"COURT:
David Cameron Lane, alright well now can you establish that you are in fact a Trustee.
DAVID CAMERON LANE:
I'm the person described in the Trust Deed.
COURT:
Yes well where is the Trust Deed.
DAVID CAMERON LANE:
The Trust Deed at the moment the original is in the Federal court in Hobart.
COURT:
You can't produce it here.
DAVID CAMERON LANE:
No Sir.
COURT:
Well if you can't produce it I don't see how I can recognise you.
DAVID CAMERON LANE:
I can certify that copy is a true copy Sir.
COURT:
That's not sufficient under the Evidence Act you can't do it that way you need to produce the document. I'm sorry gentlemen but I can't recognise the objector (sic) in this matter.
YOUNG (Counsel EZ Co)
Sir I ask that the objection (sic) be struck out as there is no one here representing the objector and the objection itself as one that you can't recognise which by .. a body or persons or a group unknown that's not recognised in Law.
COURT:
Yes I think that's a proper order, strike the objection out.
YOUNG (Counsel EZ Co)
Sir I ask for an order for costs under the Mining Act I'll just get that particular..
COURT:
Against whom are you asking me to make such an order.
YOUNG (Counsel EZ Co)
Against a person called Mr Lane who happened to sign it.
COURT:
Yes
YOUNG (Counsel EZ Co)
Because this particular person was instrumental in bringing this document that I was going to submit later on was an abuse of the court process, before this Court which has caused the holder of the lease and witnesses to come here, some witnesses from Hobart.
COURT:
Who .. What witnesses do you have."
There was a discussion between the Warden and counsel for the respondent with respect to the assessment of costs. The Warden then turned to Mr Lane (whom he had previously refused to recognise) and said:
"COURT:
Yes well it's Mr Lane I wish to hear from he's the person likely to be affected by this order. Mr Lane an application has been made that an open order against you that you pay the costs of the Electrolytic Zinc Co and that application is made pursuant to Section 101 of the Mining Act which reads [S.101 was read out]. [Subs.(2)] means that if I chose not to make any order as to costs Mr Young can proceed in any event to seek them, in fact his client can have them. Have you got anything to say before I make an order about the costs."
Mr Lane's only response was to say "Proceed in good faith".
The Warden thereupon obtained from counsel for the respondent some details concerning witnesses and their expenses and then decided to stand the matter over until "the morning adjournment". Before the Warden retired Mr Lane intervened and said "Sir, we would like ....." but was interrupted by the Warden who said "You can have a seat Mr Lane, I'll mention the costs again at 11.15 am".
However, according to the transcript of proceedings, when the matter resumed, Mr Lane was neither heard nor invited to be heard. There was further discussion between the Warden and counsel for the respondent about the quantum of costs which concluded with the Warden assessing the costs at $1,637.00. The Warden told counsel that he would "Have the order drafted up and send you a copy of the order. What you do with it from thereon is your affair".
The order, which is the subject of this appeal, is in the following terms:
"the court of mines
for the north western
mining districtin the matter of Section 56
of the Mining Act 1929and
in the matter of an Application
for Forfeiture Lease of
electrolytic zinc co of aasia
by the trustees of the parish of
zeehan.
orders
The Application for Forfeiture herein coming on for hearing this day and Upon Mr Tseglakoff seeking leave to appear for the Applicant and Upon Hearing Mr R Young of counsel for the Respondent i do order that leave to Mr Tseglakoff be refused and Upon Mr David Lane seeking leave to appear for the Applicant And the Court not being Satisfied that a person or body of persons corporate or incorporate exists which can be heard as a party to these proceedings under the title 'The Trustees of the Parish of Zeehan' I Dismiss the Application and pursuant to Section 101 of the said Act I Determine the Respondent's costs to be $1637.00 And Order that, if after 14 days from the date hereof one M G O'Halloran of Zeehan fails to apply with respect to the following order for costs, the Respondent's costs determined at $1637.00 be paid jointly by the said M G O'Halloran and David Lane of Zeehan aforesaid but In Any Event the said David Lane is severally liable to pay the said sum to the Respondent.
dated at Devonport this 21st day of October, 1988.
...........................
R B Chen,
warden of mines
To: Messrs. M G O'Halloran & David Lane
PO Box 44,
zeehan
And to: Messrs Jennings Elliott,
Barristers & Solicitors,
178 Macquarie Street,hobart 7000"
The Notice of Appeal is brought by M G O'Halloran and David Lane (the appellants) and relies upon the following grounds:
"1The learned mining warden erred in law and in fact in finding that no person nor body of persons corporate or incorporate exists which can be heard as a party to the proceedings under the title 'The Trustees for the Parish of Zeehan' for the forfeiture of Mineral Lease No 123M47 and dated the 24th day of July, 1988.
2The learned mining warden erred in law and in fact in dismissing the application dated the 24th July, 1988 for forfeiture of Mineral Lease No 123M47.
3The learned mining warden erred in law in making a costs order against the plaintiffs and further in determining those costs in the sum of $1,637.00."
Competency of the Appeal
By way of preliminary point, counsel for the respondent submitted that this court had no jurisdiction to determine the appeal. The submission was put on three bases only the last of which has any substance namely:
1The Mining Act, s114(b) expressly excludes jurisdiction.
2As the objectors were "the trustees of the Parish of Zeehan" an appeal is incompetent unless it is brought by all the trustees.
3No appeal has been instituted by reason of non– compliance with the provisions of the Act, s110(4).
1 The right of appeal to this court from a decision of the Warden's Court is to be found in the Act, s110 (1), which provides:
"Except as otherwise in this Act provided, any party aggrieved by any final judgment, determination, or decision of the Warden's Court may appeal therefrom to the Supreme Court as hereinafter provided."
Section 114 restricts the ambit of s110(1) by providing that there is no right of appeal from (inter alia) a decision of a Warden in respect of "any application for forfeiture of a claim except as may be prescribed". Counsel's submission that this provision deprives the court of jurisdiction to entertain this appeal overlooks the clear distinction the Act makes between a lease and a claim. s2 provides that "claim" means the "land of which a person has lawfully taken possession and is entitled to occupy for mining purposes under this Act otherwise than under a mining lease or application therefor". [My emphasis]
"Lease" means "Any lease granted under this Act or to which the provisions of this Act are made applicable".
Section 96(1)(b) gives the Warden's court jurisdiction to determine applications for forfeiture of both claims and leases. s94(1)(b) provides that the former shall be heard before the Warden sitting alone.
Applications for forfeiture of leases are provided for by s56(1) and applications for forfeiture of claims are provided for by reg11 of the Regulations made pursuant to the power contained in s132(2)(c). There is no basis for the submission that "a claim" in s114 includes "a lease".
2 A restatement of the second submission demonstrates its lack of substance namely, that the appellants, whose application for forfeiture was dismissed and who were ordered to pay $1,637.00 costs are not parties aggrieved by a final judgment of the Warden's Court. In re Sidebotham (1880) 14 ChD 458 James LJ said at p465:
"A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongly refused him something, or wrongfully affected his title to something."
See also In re J Burn [1932] 1 Ch 247; In re Duckett (A Bankrupt) [1964] 1 All ER 19.
3 The Notice of Appeal is in the form prescribed by the regulations, Form 43. It was served on the Warden and the respondent or its attorney within 21 days of the Warden's determination. At the time it was served on the Warden a cheque, drawn on the bankers for the solicitors for the appellants in the sum of $40.00, was lodged with the Warden. Due to what I infer was an oversight, this cheque was not signed. It was returned to the solicitors by the Warden with a letter dated the 18 November 1988. The 21 day period within which the appeal could be commenced expired on 11 November 1988. The cheque, duly signed, was returned to the Warden by the solicitors for the appellant with a letter dated the 24 November 1988. Counsel for the appellants conceded that there had been non–compliance with s110(4) which provides:
"The appellant shall lodge with the Warden, when serving such notice, a sum of $40 as security for or towards the costs of the appeal."
Counsel for the respondent submitted that the provisions of the subsection were mandatory and that, in the absence of strict compliance, the appeal was incompetent. Counsel for the appellants submitted that the provisions of the subsection were directory only, that there had been substantial compliance and that the appeal was therefore properly instituted.
The traditional approach to this question of statutory interpretation has been to determine whether compliance with the relevant statutory provision was intended by Parliament to be mandatory or merely directory and, if the latter, to apply the often quoted statement of Lord Coleridge CJ in Woodward v Sarsons (1875) LR 10 CP 733 at p746, "an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially."
In Victoria v The Commonwealth (1975) 134 CLR 81 Gibbs J (as he then was) set out that passage from the judgment of Lord Coleridge and said at pp161, 162:
"I must, with respect, confess that I find it difficult to accept that this is a correct statement of the distinction between mandatory or imperative and directory enactments; I would be inclined to prefer the statement in Clayton v Heffron (1960) 105 CLR at p247 where it was said:
'Lawyers speak of statutory provisions as imperative when any want of strict compliance with them means that the resulting Act be it a statute, a contract or what you will, is null and void. They speak of them as directory when they mean that although they are legal requirements which it is unlawful to disregard, yet failure to fulfill them does not mean that the resulting act is wholly ineffective, is null and void.'"
As the learned author of Statutory Interpretation in Australia (2nd edn), D C Pearce, points out at p176, acceptance of the proposition that substantial compliance with a "directory" statutory provision is not always necessary to prevent invalidity led the New South Wales Court of Appeal to abandon adherence to the traditional terminology of "directory" and "mandatory". A new approach was formulated in Tasker v Fullwood [1978] 1 NSWLR 20 at p23:
"The numerous decisions in this field have been recently reviewed by this court: Attorney General (New South Wales) ex rel. Franklins Stores Pty Ltd v Lizell Pty Ltd [1977] 2 NSWLR 955 and Hatton v Beaumont [1977] 2 NSWLR 211. The position of directory enactments has also been expounded in an authoritative but obiter way in Victoria v The Commonwealth (supra). From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the Act done, or whether the validity of the Act would be preserved notwithstanding noncompliance: the Franklins Store Pty Ltd case. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v Beaumont. (4) The intention being sought is the effect upon the validity of the Act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v The Commonwealth. (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true enquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it is wrong to say that, if a statute is couched in directory terms, the Act will be invalid, unless substantial performance is demonstrated: the Franklins Stores Pty Ltd case. A statute which, on its proper construction, does not nullify the Act in question, even for total non–observance of the stipulation, is also described as directory in its terms: Victoria v The Commonwealth."
The Full Court of Victoria referred to some of the above propositions in Accident Compensation Commission v Murphy [1988] VR 444 at pp448 and 449. The court found it unnecessary for the determination of the issue at hand to comment on the propositions but said obiter at p449:
"However, we think an analysis of the authorities discloses that the true position is, possibly, that described by Professor Pearce in his work Statutory Interpretation in Australia published in 1981, para 248. That is to say that there may be assigned to the legislature as a possible intention, not only an intent that the procedural requirement be treated as imperative or that it be treated as directory, but alsoa further alternative, namely that 'substantial compliance' with the requirement is necessary. This latter intent has also been expressed as one whereby 'a trivial departure' will be treated as an irregularity only. We do not consider that this rationalisation of the cases is in conflict with anything that was said by Gibbs J. in Victoria v The Commonwealth (134 CLR) at pp161–2 or by Stephen J. in the same case at p179."
It might be said that support for the correctness of that expression of opinion is to be found in the judgment of Dawson J. in Hunter Resources Ltd v Melville (1988) 164 CLR 234 at pp248–250.
There are authorities in which the courts have held that, generally speaking, enactments which regulate the procedure for the commencement of proceedings are mandatory. See for example, Public Prosecutor v Oie Hee Koi [1968] AC 829; Hand v Coles (1970) 92 WN NSW 234; Chadwick v Commissioner of Stamp Duties [1977] 1 NSWLR 151; Secretary for State of Defence v Warn [1970] AC 394.
However, in Hatton v Beaumont (1978) 20 ALR 314 Jacobs J said at p319:
"To say that procedural requirements are usually or prima facie mandatory in character cannot gainsay the primary necessary of examining the framework and language of the statute or regulation."
Recent authority requires an examination of the provisions of the Mining Act, s110(4) in the context of the language, scope and object of Part XII of the Act to ascertain whether Parliament intended that non–compliance with the subsection would render an appeal, otherwise made in conformity with the provisions of s110, incompetent or, whether the validity of the appeal would be preserved notwithstanding such non–compliance. See Tasker v Fullwood (supra); Hatton v Beaumont (supra); Clifford Airconditioning Pty Ltd v Stirling Ventilation Pty Ltd [1984] 2 NSWLR 527; Strode v Haddrill [1982] 1 NSWLR 545; Ruttys Bus Services Pty Ltd v Bond [1983] 1 NSWLR 296. The Mining Act, Part XII, is a statutory code governing the right of appeal from "any final judgment, determination or decision of the Warden's Court." Section 110(1) grants a right of appeal to "any party aggrieved" and provides that the right of appeal shall be "as hereinafter provided". Subsection (2) states:
"Every such appeal shall be commenced, by notice in the prescribed form within 21 days after the judgment, determination, or decision was given."
It is to be noted that the appeal is commenced by a notice in the prescribed form. The mere preparation of a notice without some further act would not be sufficient to institute or commence an appeal but subs(3) provides:
"Such notice shall be served within the time aforesaid upon the Warden and upon the respondent or his attorney, and shall set forth the grounds upon which the appeal is made."
Service of a notice in the prescribed form within the specified period commences or institutes an appeal. In Whitehouse Hotels Pty Ltd v Lido Savoy Pty Ltd (1974) 131 CLR 333 the court was concerned to construe the High Court Rules, O.70, r.4 which provided:
"Every appeal shall be instituted by the filing of a notice of appeal in the manner prescribed by rules 5 and 6 of this order."
Rule 6 provided that notice should be filed and served within 21 days. The court held that the ordinary meaning of the words of O70, r4 meant that the appeal was instituted by the filing of a notice and that service within the prescribed time was not a condition precedent to the valid institution of proceedings.
Section 110(2) and (3) read together, provide that the appeal shall be commenced within 21 days of the decision appealed from by a notice, specifying the grounds of appeal and served upon the persons mentioned in subs.(3). Subsection(4) is a separate provision, the object of which spelled out by subs(5), is to ensure that there is lodged with the Warden some monies to which a successful respondent may have recourse to meet an order for costs made in his favour.
The statutory framework of s110 is similar to that considered by the court in Hatton v Beaumont (supra). There the court held that the provisions relating to the filing and service of the notice were mandatory but, having regard to the scope and object of the legislation, the provision requiring the lodgment of a deposit or the giving of security was directory only.
Ruttys Bus Service Pty Ltd v Bond (supra) was a case in which it was held that non–compliance with a requirement to provide a recognizance or securities for costs on an application to state a case under the Justices Act did not render the appeal incompetent. At p300 Foster J referred to and applied the following passage from the judgment of Mahoney JA in Hatton v Beaumont [1977] 2 NSWLR 211:
"But the rigidity of the operation of a provision, if mandatory, and the fact that its consequences will flow regardless of the merits of the individual case, must, in my opinion, be carefully weighed. Before a provision is held mandatory, a court should be clearly satisfied that the part played by the particular provision in the attainment of the general object intended to be secured by the legislation is such that it is necessary or appropriate to visit non–compliance with the consequences of that kind. In the present case, I am not satisfied that the provision of security was of such significance in the procedures set up under the regulations."
A conclusion that the provisions of s110(4) are mandatory and that non–compliance renders an appeal commenced otherwise in accordance with subss(2) and (3) incompetent could produce absurd results. The subsection enacts that the sum of $40 shall be lodged with the Warden "when serving [the notice of appeal]". Lodgment of the money at any other time, even if within the specified period of 21 days, would amount to non–compliance. It is inconceivable that Parliament intended that an appellant would lose his statutory right of appeal if the deposit was lodged at any time other than contemporaneously with the service of the notice of appeal on the Warden. The scope and object of the provision is to provide security for costs and the intention is clear that provided there is substantial compliance with the subsection this court has jurisdiction to determine the appeal.
I am satisfied that there has been such substantial compliance by the lodgement of the sum of $40 on or about the 24 November 1988, being 34 days after the determination from which this appeal is brought.
The Merits
The Act, s56(1) gives "any person" a right to apply for the forfeiture of a mining lease. The Acts Interpretation Act, s41(1) operates to extend that right to any body of persons corporate or unincorporate. The application for forfeiture states that "the Trustees of the Parish of Zeehan" are the applicants for an order for forfeiture.
At the hearing, the applicants were not represented by a legal practitioner but it appears that the appellant Lane (whom I infer signed the application) sought to be heard on the basis that he was one of the applicants. The Warden took the initiative by challenging Mr Lane to establish that he was in fact a trustee of the Parish of Zeehan. Once the identity of the applicant became an issue on the hearing the Warden was required to determine that issue judicially, that is, by the reception of evidence. Mr Lane attempted to produce from the body of the court a document which was apparently a photocopy of an original and said, "I can certify that it is a true copy". Without more, the Warden ruled that the production of a photocopy was "not sufficient under the Evidence Act" and then proceeded to rule that he could not "recognise the objector". Assuming that, by that expression, the Warden meant that he was not satisfied that there was an unincorporated body of persons entitled the Trustees of the Parish of Zeehan there was no evidentiary material before him upon which he could have made such a finding. If Mr Lane had given evidence he may have been able to make the document admissible in accordance with the provisions of the Evidence Act, s68D(1) or by some other means establish that he was entitled to be heard as one of the applicants. The appellant Lane was not invited to give evidence on the question of his locus standii and the finding of the Warden made in the absence of evidence must be set aside.
The Warden, having determined (as I so infer) that the appellant Lane had failed to satisfy him that he was a party to the proceedings by reason of him being one of the applicants and that therefore he had no right to be heard on the application, proceeded to order that he pay the costs of the proceedings. In the circumstances no lawful basis for the making of that order can be found.
The matter does not rest there. The terms of the formal order, drawn up and signed by the Warden, are set out earlier in these reasons. They provide in part that:
"If after 14 days from the date hereof one M G O'Halloran of Zeehan fails to apply with respect to the following order for costs, the respondent's costs determined at $1637.00 be paid jointly by the said M G O'Halloran and David Lane of Zeehan aforesaid but in any event the said David Lane is severally liable to pay the said sum to the respondent."
The meaning of that part of the order and what right or rights of application the appellant O'Halloran had is far from clear. However, it is clear from the transcript of proceedings that the appellant O'Halloran was not called to see if he was present and wished to be heard with respect to either the application for forfeiture or the order for costs.
I have reached the conclusion that the whole proceedings constituted a denial of natural justice for the appellants and resulted in a miscarriage of justice. See Jones v National Coal Board [1957] 2 QB 55 at p67; Stead v Government Insurance Commissioner (1986) 67 ALR 21.
The appeal must be allowed and the application for forfeiture remitted to the Warden's Court to be reheard.
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