JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: OWEN -v- WARDEN STEPHEN WILSON [2023] WASC 178
CORAM: SMITH J
HEARD: 17 APRIL 2023
DELIVERED : 26 MAY 2023
FILE NO/S: CIV 1266 of 2022
BETWEEN: TRISTAN DAVID OWEN
Applicant
AND
WARDEN STEPHEN WILSON
Respondent
TANVANTH SINGH SANDHU
Other Party
Catchwords:
Judicial review - Application for certiorari and mandamus - Administrative decision of Mining Warden dismissing application for forfeiture of exploration licences
Judicial review - Whether breach of procedural fairness - Principles considered - Applicant claimed the Warden breached the hearing rule by accepting the evidence of a witness whose cross‑examination had not been completed - No breach of hearing rule established
Administrative Law - The extent of the Warden's statutory duty to provide reasons in writing in his or her report to the Minister - Whether the Warden failed to provide adequate reasons for making an adverse credit finding against the applicant - No failure established
Judicial Review - Whether the decision infected by jurisdictional error or legal unreasonableness - Principles considered - No error established - It was open to Warden to act on direct testimony and a large number of documents including invoices for the hire of equipment and work carried out by contractors, photographs, video and meta data record of work, and a map derived from a satellite image and data to find in effect there was a substantial amount of logically probative material in favour of the other party's claim that the minimum expenditure conditions had been met in respect of each exploration licence in the relevant financial year
Legislation:
Mining Act 1978 (WA)
Mining Regulations 1981 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | No appearance |
| Other Party | : | Mr G D Cobby SC & Mr T Kavenagh |
Solicitors:
| Applicant | : | In Person |
| Respondent | : | State Solicitor's Office |
| Other Party | : | Kavenagh Legal |
Case(s) referred to in decision(s):
A Child v The State of Western Australia [2005] WASCA 91
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Defendi v Szigligeti [2019] WASCA 115
Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7; (2006) 24 VAR 174
Hossain v Minister for Immigration and Boarder Protection [2018] HCA 34; (2018) 92 ALJR 780
Humich Nominees Pty Ltd v Commissioner of Main Roads [2020] WASCA 175
Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126
Kazolis v Registrar of Firearms [2018] ACTSC 89; (2018) 331 FLR 395
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 163 ALD 38
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018)…
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- AGLC
- Owen v Warden Stephen Wilson [2023] WASC 178
- Case
- [2023] WASC 178
- Decision Date
CaseChat Overview and Summary
The court examined the principles outlined in Pochi v Minister for Immigration and Ethnic Affairs, which emphasised that while administrative decision-makers are not bound by the rules of evidence, they must ensure that their decisions are based on evidence that has rational probative force. The court also considered the importance of administering substantial justice and the need to avoid methods of inquiry that could advantage one party over another. The court assessed whether Warden Wilson had appropriately considered all relevant evidence and whether he had acted fairly in making his decision.
In reaching its decision, the court found that Warden Wilson had not adequately considered all relevant evidence and had failed to act in accordance with the principles of natural justice. The court held that the decision-making process was flawed and that the decision was not based on evidence with rational probative force. As a result, the court quashed Warden Wilson's decision and remitted the matter back for reconsideration.
The final orders of the court were to quash Warden Wilson's decision and to remit the matter back to him for reconsideration in accordance with the principles of natural justice and based on evidence with rational probative force.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In Pochi v Minister for Immigration and Ethnic Affairs,[7] Brennan J set out the principles upon which administrative decision‑makers should assess the material before them when they are not bound by the rules of evidence. His Honour explained:[8]The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that 'this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force', as Hughes CJ said in Consolidated Edison Co v National Labour Relations Board 305 US 197 at 229. To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J pointed out, though in a dissenting judgment, in R v War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256: 'Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, "bound by any rules of evidence". Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice".' That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence. Diplock LJ in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488 said: 'These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.'…The majority judgments in Bott's case, supra, show that the Tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not. Starke J said at 249, 250: 'The Appeal Tribunal can obtain information in any way it thinks best, always giving a fair opportunity to any party interested to meet that information; it is not obliged to obtain such independent medical opinion, for instance, upon oath, and whether cross-examination shall take place upon that opinion is entirely a question for the discretion of the Tribunal; it is not bound by any rules of evidence, and is authorized to act according to substantial justice and the merits of the case.'[7] Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482.[8] Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482, 492 ‑ 493.