Owen v Warden Stephen Wilson
[2023] WASC 178
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) 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737
Owen v Sandhu [2021] WAMW 15
Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482
Preston v Minister for Immigration and Multicultural and Indigenous Affairs [No 2] [2004] FCA 107
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109
Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116
Russell v Duke of Norfolk [1949] 1 All ER 109
Sanders v City of South Perth [2019] WASC 226
Secretary, Department of Human Services v Children's Court of Victoria [2012] VSC 422
Slaveski v Rotstein & Associates Pty Ltd [2012] VSCA 291
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Strother v Tavener [2016] WASC 85
WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93
Western Australian Planning Commission v The Board of Valuers [2018] WASCA 145
Table of Contents
1.0 Introduction and result
2.0 Background
3.0 Statutory framework
3.1 Conditions that apply to an exploration licence
3.2 An application for the forfeiture of a mining lease
4.0 The Warden's decision in his report to the Minister
4.1 Evidence called by Mr Owen
4.2 Evidence called on behalf of Mr Sandhu
4.2.1 Mr Hawker's evidence in his affidavit sworn on 7 January 2021
4.2.2 Mr Hawker's evidence in his affidavit sworn on 25 June 2021
4.2.3 Oral evidence of Mr Hawker
4.2.4 Mr McCarty's evidence
4.2.5 Mr McCluskey's evidence
4.2.6 Mr Nice's evidence
4.2.7 Mr Higham's evidence
4.2.8 Mr Scattini's evidence
4.3 The Warden's findings
4.3.1 The 2018 drilling program on exploration licences 393 and 396
4.3.2 Creation of the costeans, camp and wet gravity circuit in 2019
4.3.3 Accommodation ‑ Credo Station ‑ Field trips ‑ Prospecting on exploration licences 393, 396 and 449 in the 2019 year
5.0 Legal principles
5.1 Judicial review
5.2 Legal unreasonableness
6.0 The grounds of review
6.1 Ground 1(a)
6.2 Ground 1(b)
6.3 Ground 2
6.4 Ground 3
6.5 Ground 4
6.6 Ground 5
7.0 Other matters raised by Mr Owen
8.0 Conclusion and the orders that should be made
SMITH J:
1.0 Introduction and result
Mr Owen has applied for judicial review of a decision made by Warden, Stephen Wilson (Warden) on 17 September 2021 dismissing applications for forfeiture of three exploration licences, E16/393 (393), E16/396 (396) and E16/449‑I (449) (also referred to as tenements) held by the other party, Mr Sandhu.
Mr Owen seeks a writ of certiorari and a writ of mandamus. The Warden filed a notice of intention to abide by the decision of the court. Mr Sandhu opposes the application.
For the reasons that follow, the application for judicial review should be dismissed.
2.0 Background
The three tenements form part of a group of mining tenements held by Mr Sandhu known as the Credo Project ('Credo Project').
In December 2015, Mr Sandhu engaged Hawker Geological Services Pty Ltd trading as HGS Australia (HGS) to undertake mineral exploration activities at the Credo Project.[1] Mr Andrew John Hawker is a geologist and has been the secretary and sole director of HGS since 3 November 2009.[2]
[1] Affidavit Andrew John Hawker sworn 7 January 2021, Attachment AH17, 205.
[2] Affidavit Andrew John Hawker sworn 7 January 2021, Attachment AH1, 54 and Attachment AH2, 57.
On 9 October 2018, Gold Tiger Resources (Australia) Limited (Gold Tiger Resources) was registered.[3] Later, on 5 December 2018, Gold Tiger Holdings (Australia) Pty Ltd (Gold Tiger Holdings), a subsidiary of Gold Tiger Resources, was also registered. Mr Hawker became a director of Gold Tiger Resources (with others) on 9 October 2018 and Gold Tiger Holdings (with others) on 1 October 2020.[4]
[3] Affidavit Andrew John Hawker sworn 7 January 2021, Attachment AH3, 61.
[4] Affidavit Andrew John Hawker sworn 7 January 2021, Attachment AH3, 60 ‑ 64 and Attachment AH4, 65 ‑ 68.
On 1 December 2018, Mr Sandhu authorised Gold Tiger, in writing, to conduct exploration and small mining activities on the three exploration licences'.[5]
[5] Affidavit Andrew John Hawker sworn 7 January 2021, Attachment AH18, 207.
By agreement dated 6 February 2019, Mr Sandhu sold all three exploration licences to Gold Tiger Holdings. The sale of the three exploration licences were finalised on 23 April 2020 and Gold Tiger Holdings became the registered holder of all three exploration licences on that day.
On 20 December 2019, Mr Owen lodged applications for forfeiture of exploration licences 393, 396 and 449, on grounds that the expenditure conditions of each of the tenements had not been carried out or expended, and that the minimum expenditure conditions for each of the tenements had not been met for the 2019 year.
In 2019, the minimum expenditure for exploration licences 393 and 396 was $70,000 each, and for exploration licence 449 the minimum expenditure was $20,000.
Mr Sandhu denied that the minimum expenditure conditions for each exploration licence had not been met for 2019.
On a Form 5 expenditure report for the 2019 year, Mr Sandhu notified the Department of Mines Industry Regulation and Safety (Department) of expenditure in the amount of $152,557 on exploration licence 393, $357,863 on exploration licence 396 and $23,770.80 on exploration licence 449.
Mr Sandhu made a submission at the hearing before the Warden that even if the minimum expenditure conditions had not been met, any non‑compliance was not of sufficient gravity, in all the circumstances, to warrant a recommendation by the Warden of forfeiture of any of the three tenements to the Minister for Mines pursuant to s 98(5) of the Mining Act 1978 (WA).
After a lengthy hearing about the activities that Mr Sandhu claims were carried out on the tenements during the reporting periods for each in 2019, the Warden found that the invoices for work referred to in the evidence presented by witnesses for Mr Sandhu (with the exception of exploration 449) exceeded the amounts reported to the Department. In particular, his Honour found that in the reporting period of 13 August 2018 to 12 August 2019 a total of $162,964.22 was expended on exploration licence 393, and in the reporting period of 10 December 2018 to 9 December 2019 a total of $611,838.20 was expended on exploration licence 396.
Thus, the Warden found that Mr Sandhu had complied with the expenditure conditions of each of the tenements. Consequently, the Warden did not make any recommendation to the Minister, but instead dismissed the application for forfeiture of the exploration licences.
One of the principal issues in the dispute before the Warden, and in the application for judicial review, is that although Mr Owen accepts that work was carried out on exploration licence 396, to construct costeans and remove earth which was fed into a wet gravity circuit, he claims this work was not carried out in the 2019 financial year, but was carried out in the 2020 financial year.
Mr Sandhu does not accept that any work was carried out on exploration licences 393 and 449 during the 2019 financial year.
3.0 Statutory framework
3.1 Conditions that apply to an exploration licence
Section 62(1) of the Mining Act provides that during the currency of an exploration licence the holder shall comply with prescribed expenditure conditions relating thereto, unless in accordance with the Mining Act total or partial exemption therefrom is granted. Section 63 sets out the conditions that attach to every exploration licence.
The term 'expenditure conditions' is defined in s 8(1) of the Mining Act to mean prescribed conditions that require the expenditure of money on, or in connection with, a mining tenement or mining operations either carried out or proposed to be carried out. The expenditure requirement for an exploration licence is prescribed by reg 21 of the Mining Regulations 1981 (WA) (Regulations). Regulation 21(1) provides:
(1)The holder of an existing exploration licence shall expend, or cause to be expended, in mining on or in connection with mining on the licence during each year of the term of the licence or, where the term of the licence is extended under section 61(2) —
(a)during each of years 1 to 5 of that term, not less than $300 for each square kilometre or part thereof of the area of the licence with a minimum of $20 000; or
(b)during each of years 6 and 7 of the term of the licence, not less than $50 000 per year irrespective of the area of the licence; or
(c)during year 8 and each subsequent year of the term of the licence, not less than $100000 per year irrespective of the area of the licence.
Pursuant to reg 21(1aa) of the Regulations, expenditure incurred in mining, or in connection with mining, on an exploration licence during each year of the term may be calculated on the basis of the whole month of the anniversary date. Regulation 21(1aa) provides:
Expenditure incurred under subregulation (1) or (1b) during the month in which the anniversary date of the commencement of the term of the licence occurs may be treated by the holder as expenditure incurred in either the year immediately preceding that anniversary date or the year starting from such date (including any period referred to in subregulation (1c)).
The specific provisions relating to the calculation of allowable and non‑expenditure is pursuant to reg 21(1e) prescribed in reg 96C. Regulation 96C provides:
96C.Specific expenditure provisions
(1)The cost of an Aboriginal heritage survey conducted on land which is the subject of a mining tenement may be used in the calculation of expenditure expended on, or in connection with, mining on the mining tenement.
(1a)The cost of an Aboriginal heritage survey conducted on land while the land was the subject of an application for a mining tenement may be used in the calculation of expenditure expended on, or in connection with, mining on that mining tenement during the first year of its term.
(2)The cost of any rehabilitation activities carried out on land disturbed by mining operations on a mining tenement may be used in the calculation of expenditure expended on, or in connection with, mining on the mining tenement.
(2a)Annual tenement rent (including the rent for the first year of the term of the mining tenement) and local government rates relating to land which is the subject of a mining tenement may be used in the calculation of expenditure expended on, or in connection with, mining on the mining tenement.
(3)Administration and land access costs relating to land which is the subject of a mining tenement may be used in the calculation of expenditure expended on, or in connection with, mining on the mining tenement, but only up to 20% of the minimum commitment, or 20% of the total expenditure on the mining tenement, whichever is the greater amount.
(3a)The cost of cutting and polishing minerals for use as samples may be used in the calculation of expenditure expended on, or in connection with, mining on the mining tenement.
(3b)The cost of an aerial survey may be used in the calculation of expenditure expended on, or in connection with, mining on any mining tenement that is located wholly or partly within the boundaries of the survey when those boundaries are projected onto the surface of the Earth.
(3c)The reference in subregulation (3b) to an aerial survey includes an aerial survey conducted in respect of land while the land was the subject of an application for the mining tenement concerned.
(3d)Where the cost of an aerial survey is used in the calculation of expenditure for more than one mining tenement, the cost is to be apportioned between the mining tenements in such a way that the total expenditure claimed does not exceed the cost.
(3e)For the purposes of subregulations (3b) and (3d) the cost of an aerial survey comprises —
(a)the cost of acquiring data, in the air and on the ground, during the period in which the aerial survey is conducted; and
(b)the cost of processing that data to produce fully corrected, point-located digital data stored on an appropriate computer-compatible medium.
(4)The following costs and payments cannot be used in the calculation of expenditure expended on, or in connection with, mining on the mining tenement —
(a)the cost of marking out mining tenements;
(b)any costs associated with the acquisition or sale of mining tenements;
(c)research activities not directly related to a specific tenement;
(d)compensation payments made in respect to the mining tenement.
Relevantly, pursuant to s 63(aa)(i) and (ii) of the Mining Act, every exploration licence is subject to the condition that the holder will explore for minerals and will not use ground disturbing equipment when exploring for minerals in the land, the subject of the exploration licence, unless the holder has lodged in the prescribed manner a programme of work in respect of that use, and the Minister or a prescribed official has approved the programme of work.
3.2 An application for the forfeiture of a mining lease
Pursuant to s 98 of the Mining Act, where the requirements of the Mining Act have not been complied with in respect of the expenditure conditions applicable to an exploration licence, any person may apply for the forfeiture of the exploration licence
Section 98(3) requires the application for forfeiture to be heard by the warden.
Pursuant to s 98(4A), if the warden finds that the holder of the exploration licence has failed to comply with such requirements, the warden may recommend the forfeiture of the licence, impose a penalty not exceeding $10,000 as an alternative to forfeiture, or dismiss the application. However, s 98(5) prohibits the warden from making a recommendation under s 98(4A) unless the warden is satisfied that the non‑compliance with such requirements is, in the circumstances of the case, of sufficient gravity to justify the forfeiture.
As Pritchard J pointed out in Strother v Tavener, a warden who hears a forfeiture application does so in the exercise of administrative power conferred by the Mining Act, rather than in the exercise of any judicial power, and the Mining Act draws a clear distinction between the exercise of administrative functions by a warden, and the exercise of judicial functions by the Warden's Court.[6]
[6] Strother v Tavener [2016] WASC 85 [34].
Section 98(3) and (6) contemplates that the warden will hold a hearing and receive evidence on the application. Section 98(6) requires the warden, as soon as practicable after the hearing, to forward to the Minister any notes of evidence at the hearing, together with a report on the warden's recommendation as to the determination of the application, and the Minister may, before acting on the recommendation, require the warden to take such further evidence or rehear the application as the Minister directs.
The conduct of a hearing before a warden on an application for the forfeiture of a mining lease is prescribed by reg 154 of the Regulations. Regulation 154(1) provides that in conducting any hearing the warden is to act with as little formality as possible, is bound by the rules of natural justice, is not bound by the rules of evidence, and may inform himself or herself of any matter in any manner he or she considers appropriate.
Where an administrative decision‑maker such as a tribunal or in this matter a mining warden is by operation of legislation, not bound by the rules of evidence, what follows from that is that the rules of evidence do not apply at the stage of reception of evidence. However, the process to be applied when evaluating evidence is that the rules of evidence that apply in traditional court proceedings are not to be entirely ignored. The decision‑maker is required to act on material that is logically and rationally probative.
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.
Consequently, there is a duty cast upon a decision‑maker such as a warden to make findings as to the existence or non‑existence of facts based upon logically probative material. For the reasons that follow, it is clear that the Warden in this matter did precisely that.
4.0 The Warden's decision in his report to the Minister
The Warden gave lengthy reasons in his report to the Minister for his decision to dismiss the application for forfeiture for each of the three tenements. In his reasons, he comprehensively summarised the evidence of each of the witnesses in their affidavits, in examination in chief and in cross‑examination, before setting out his findings and outcome of the application.
His Honour commenced by setting out the relevant principles that apply to an application for forfeiture as follows:[9]
In Commercial Properties Pty Ltd v Italo Nominees Pty Ltd, the Full Court held the applicant for forfeiture must establish, on the balance of probabilities, that the tenement holder failed to meet the minimum expenditure required in the relevant expenditure year for the mining tenement. Further, it was held that in the case of failure to comply with expenditure conditions being established the legislation contemplates forfeiture. Hence, upon prima facie proof of non‑compliance with expenditure conditions, the plaintiff establishes a prima facie case for forfeiture. In such circumstances, the evidentiary burden is on the defendant to satisfy the warden that the case for forfeiture is otherwise not of sufficient gravity to justify forfeiture.
[9] Owen v Sandhu [2021] WAMW 15 [17] (footnote omitted).
The Warden then made the following findings that are relevant to the disposition of this application for judicial review.
4.1 Evidence called by Mr Owen
Mr Owen resides in Kalgoorlie and is a prospector. When he was cross‑examined, Mr Owen said he has no geology qualification but had received formal training in geology related science at every mine site he has worked at where he was given grade control training at workplaces in the Pilbara, the Goldfields, and in Queensland. He is also a qualified mechanic and has worked as an excavator operator in both the gold and iron ore industries, and as a driller's offsider.
Mr Owen's evidence was contained in three affidavits all sworn on 10 December 2020, being one affidavit relating to each of the three exploration licences. He also gave oral evidence. Mr Owen also called evidence from Mr Lawrence Robert Poole who is a retired fisheries officer and holds an interest in mining tenements in the Credo area.
In Mr Owen's affidavit which relates to exploration licence 393, Mr Owen deposed that in August and September 2018 he traversed and inspected the area the subject of exploration licence 393 and observed 'historic drilling' had been carried out. He also deposed that on 16 December 2019 he travelled in a north‑westerly direction from E16/415 and E16/365 along one of a number of tracks to 393 and he did not observe any additional drilling carried out in the area before 16 December 2019. He also deposed he has since observed drilling has occurred in very close proximity to the access track he drove along on 16 December 2019.[10]
[10] Owen v Sandhu [2021] WAMW 15 [20].
In his reasons, the Warden set out Mr Owen's opinions about his review of Mr Hawker's evidence about the claimed cost of the 2018 drilling campaign on 393. Mr Owen regarded $6,600 per day as excessive for air core drilling. It was also his opinion it was not feasible to drill in excess of 18 separate holes to 10 m deep per day to achieve 110 holes of 10 m in the time claimed in the Form 5 for the 2019 expenditure year. The Warden also referred to Mr Owen's opinion that if $36,611 was expended on prospecting upon 393 in the 2019 year he would have expected to see ground disturbance, tracks and other evidence of those types of activities during his trips in August and September 2018 and December 2019.[11]
[11] Owen v Sandhu [2021] WAMW 15 [21] and [23].
The Warden also recounted in his reasons Mr Owen's oral evidence in chief about what he said he observed when driving around exploration licence 393 on a quad bike on three occasions when he visited exploration licence 393 in August and September 2018 and 16 December 2019.[12] The Warden recorded at length Mr Owen's evidence about the number and state of old drill sample bags that Mr Owen said he had seen on the area of exploration licences 393 and 396 during these visits. In particular, the Warden noted his evidence that he had seen significantly perished bags with soil coming out of the top.
[12] Owen v Sandhu [2021] WAMW 15 [43] ‑ [56].
In his evidence in chief, Mr Owen gave lengthy evidence of his review of photographs of drill bags in Mr Darren Scattini's report.[13] His oral evidence was that he had not seen drill bags depicted in the series of photographs in the report and that none of the drill holes or drill bags noted in the report as observation points 62 to 133, 153 to 168, 181 to 195 and at Nyborg's Pit were observed by him on his inspection on 16 December 2019. He also said he did not observe any of the drill holes or drill bags as shown at observation points 153 to 168.[14] Mr Owen claimed that 'if the drill holes were there he would have seen them'.
[13] Mr Scattini was engaged by Mr Sandhu's solicitors to carry out an investigation of evidence of drilling work on tenements 393 and 396.
[14] Owen v Sandhu [2021] WAMW 15 [55].
As to surface mining on exploration licence 396, Mr Owen deposed in his affidavit that on 16 December 2019 he travelled north west through tenement 393 and onto 396 and observed that the unsealed roads and tracks used to access 396 appeared not to have had any recent vehicle traffic. His evidence was that he was aware at that time that it had been claimed a surface miner had conducted works on 396 in November 2019. He said in his affidavit that he had carried out a detailed inspection on both a quad bike and on foot of the area known as Nyborg's Pit on tenement 396. Mr Owen claimed that during his inspection on 16 December 2019 he did not observe evidence of surface miner tracks to indicate a surface miner had operated in the area, and he saw no field camp activities.[15]
[15] Owen v Sandhu [2021] WAMW 15 [26] ‑ [27].
When he gave oral evidence, Mr Owen stated that he did not have his quad bike with him on 16 December 2019 and acknowledged his affidavit evidence in which he deposed he had carried out a detailed inspection on both his quad bike and on foot in the area known as Nyborg's Pit was not true.[16]
[16] Owen v Sandhu [2021] WAMW 15 [92].
Mr Owen also stated on affidavit that he carried out further field inspections on exploration licence 396 on 20 April and 14 June 2020. He stated that he had noted there was a costean located on 396 about 300 m from Nyborg's Pit that was not there on 16 December 2019. Mr Owen also said that during his two field inspections of 396 in 2020 he inspected the costean located 300 m from Nyborg's Pit. He formed the opinion the costean was dug by a loader, not by a surface miner.[17] Mr Owen took photographs of the southern and northern costean in June 2020. Mr Owen conceded in cross‑examination that the distance of the northern costean on tenement 396 is about 880 m from Nyborg's Pit and not 300 m as stated in his affidavit, and he conceded that the southern costean was located about 1500 m south of Nyborg's Pit.[18]
[17] Owen v Sandhu [2021] WAMW 15 [28], [32] – [33].
[18] Owen v Sandhu [2021] WAMW 15 [93].
Mr Owen also stated on affidavit that during his attendance at exploration licence 396 on 16 December 2019, he observed no field camp activities, recent prospecting activities or air core drilling as claimed in the Form 5 for the 2019 financial year.[19] When cross‑examined, Mr Owen said he had never hired or operated a surface miner but has worked beside one operating an excavator, but he did not remove dirt the surface miner dug as the dirt was loaded directly onto a truck. He also said he has never engaged or paid anyone to carry out air core drilling.[20]
[19] Owen v Sandhu [2021] WAMW 15 [34].
[20] Owen v Sandhu [2021] WAMW 15 [67].
The Warden recorded in his reasons in considerable detail the following evidence Mr Owen gave when cross‑examined about his visit to the tenements on 16 December 2019:[21]
[21] Owen v Sandhu [2021] WAMW 15 [72] ‑ [87] (footnotes omitted).
Mr Owen said he was alone during his inspections of 393, 396 and 449 in August, September 2019 and 16 December 2019.
A map of the mining tenements of the Credo Project was shown to Mr Owen. Mr Owen drew on the map the route he took on 16 December 2019 when he carried out the inspection of 393, 396 and 449. Mr Owen said on 16 December 2019 he drove his Navara Ute and did not have his quad bike. He drew on the map the route he took to an area south of the boundary between 393 and 396. At the point marked 'A', he said he stopped and alighted from his ute and walked around the area for about 1½ hours. He also said he stopped his ute on multiple other times on 393, alighted and looked and walked around. He then re‑entered his ute and drove north and onto 396.
Mr Owen said he drove his ute for about half an hour towards the north and through 396 until he reached the main road or the Credo Station Road. He said he did not stop on the way to the top of 396 as he passed through Nyborg's Pit. Mr Owen said he stopped his ute in 2 places near the Credo Station Road and attempted on each occasion to make a telephone call with one of those attempts made from on top of a small ironstone hill. Mr Owen marked the map with 'B1' and 'B2' where he stopped to make the telephone calls. Mr Owen said he could not recall the time he was unable to connect his calls.
Mr Owen said he then drove back to Nyborg's Pit where he parked his ute north of the old waste dump, marked 'C' on the map, and climbed about 15 metres to the top where he walked around for about 10 to 20 minutes and again unsuccessfully tried to make a telephone call. Mr Owen also said he wasn't checking for drill holes or see any drill bags from on top of the old waste dump.
Mr Owen said while on 396, he didn't see or walk past the costean to the north of the old waste dump or the wet gravity circuit in operation as described by Mr Higham. He said he didn't think Mr Higham's affidavit was the truth. Mr Owen said on 16 December 2019, it would have been impossible to miss seeing the northern costean on 16 December 2019 if it was there at that time. He denied he was not telling the truth but said no one else was telling the truth.
Mr Owen said after he climbed down from the old waste dump, he drove his ute for about a minute about 200 metres west of the old Nyborg's Pit where he wandered around the area he marked as 'D' on the map for about 20 minutes trying to find an old fella's diggings. He said he then drove east of the waste dump to an area he marked on the map as 'E' where he had seen the digger's camp in June 2020. He spent about 20 to 30 minutes there before driving to a quartz reef with visible gold stringers, marked 'F' on the map and spent a few minutes there before leaving.
Mr Owen said he did not see the Camp in June 2020 but saw where someone had camped, like a mess, an old campfire, a water trailer and a few pods but no caravans or anything similar to that. Mr Owen denied he saw the Camp or the wet gravity circuit on 16 December 2019, but was sure if both were there, he would have seen them.
After leaving the quartz reef, Mr Owen said he travelled south, without stopping, and off 396 and through an area on 393 known as the Old Fella's Pushings. He then followed a very old fence line to L 16/58 until he turned onto L 16/62.
…
On 16 December 2019, Mr Owen said he did not stop on 449, but had stopped on multiple times in the past. However, he later said he stopped on 449 to check if any cars had gone over a scrap mark he had earlier made on the track.
…
On 19 December 2019, Mr Owen said he did not see drill sample bags and pegs on 396. He disagreed over 1000 drill sample bags were present on 396 on that same day. He did say he saw in December 2019 the old drill sample bags he had seen on 396 in August and September 2019. Mr Owen said he did not see any drill pegs or drill holes. Mr Owen said on 19 December 2019 he had a mobile phone with him. He further said he was looking for evidence that no work had been carried out on 396 but he did not take a photograph of what he observed as it was the same as he had seen in 2018 and it was outside the 2019 Year.
The Warden also recorded in his reasons that in cross‑examination Mr Owen said that his movements on 16 December 2019 as deposed to in his affidavit came from an app on his mobile phone called Trilobite. He, however, said that he did not know if Trilobite was turned on for December 2019.[22] Yet, it appears that data from his mobile telephone was retrieved. The Warden recorded Mr Owen's evidence about his movements and what those records showed as follows:[23]
Mr Owen was shown Telstra mobile telephone records for his mobile phone for 13 to 16 December 2019. Mr Owen said when he was in the Dunnsville area his mobile telephone signals would bounce off telephone towers either in Coolgardie, Kalgoorlie, Ora Banda, Mount Burgess or Bardoc. He was questioned about the times shown on the Telstra record of telephone calls made on 16 December 2019. Mr Owen said he left Kalgoorlie about 11:35 AM and returned close to 5 or 6 PM on 16 December 2019. Therefore, he said he was on the tenements closer to 3 to 4 hours that day.
A photograph of the screen of Mr Owens mobile phone was produced into evidence. Mr Owen said the photograph is of the app known as Trilobite which tracks a person's movements. He said the photograph was not necessarily a true recording of his movements at the Credo Project on 16 December 2019 as the date can be changed and if he were to travel a similar route with his telephone on, the Trilobite app would record over the previous journey.
[22] Owen v Sandhu [2021] WAMW 15 [65].
[23] Owen v Sandhu [2021] WAMW 15 [94] ‑ [95] (footnotes omitted).
When the evidence set out in the witness affidavits that were to give evidence on behalf of Mr Sandhu about work performed in the 2019 year, including supporting invoices, and a video of the wet gravity circuit in operation on tenement 396 on 11 December 2019, were put to Mr Owen, he claimed that all of this evidence was fabricated and the court should accept his evidence of what occurred on 16 December 2019.[24]
[24] Owen v Sandhu [2021] WAMW 15 [96] ‑ [97] and [100].
Mr Poole's prospecting licences are located near the southern boundary of tenements 393 and 396. Mr Poole stated in his affidavit that he made a complaint to the Department alleging unlawful mining had taken place on one of his tenements in 2018 during the performance of an approved programme of works, that had been authorised by the holder of the exploration licence 396. Mr Poole also stated in his affidavit that on 12 October 2018 he was on one of his tenements and observed that someone very recently, without authorisation, had pushed and scraped the creek on that prospecting licence with a loader. He also observed there had been very recent similar activity on the adjoining mining tenement, 396.[25]
[25] Owen v Sandhu [2021] WAMW 15 [106].
Mr Poole stated in his affidavit that since that date (in October 2018), he had maintained consistent observation of works being conducted on tenements 393 and 396, on each occasion he attended his prospecting licences. On 14 November 2018, Mr Poole observed the same loader had been used for minor earthmoving at the same location on tenement 393.
On 14 April 2019, Mr Poole returned to his prospecting licences and observed that no one was carrying out works on tenement 393, but he observed there had been more disturbances on the ground at 393 using earthmoving equipment and it appeared a bulldozer had been walked to the location. He formed the opinion that this had occurred within March 2019. He observed fresh vehicle tracks covered the area and a large heap of earth pushed up in a clearing of a large flat area of 2 to 3 ha. In mid‑April 2019, he observed the loader he observed the previous year had been shifted to works on top of the hill in an area he believed was known as Nyborg's Pit.[26]
[26] Owen v Sandhu [2021] WAMW 15 [107] ‑ [108].
Mr Poole also deposed in his affidavit that he attended his prospecting licences on 7 October 2019 and observed no drilling had been carried out on tenement 393 as depicted in a photograph taken on 23 June 2020.[27]
[27] Owen v Sandhu [2021] WAMW 15 [109].
In cross‑examination, Mr Poole was referred to the report of Mr Scattini, in particular, photographs, maps and observations about drill bags and drill posts on tenement 393. Mr Poole said that when he returned to his prospecting licences on 14 April 2019 and 7 October 2019 he saw no signs of drilling on tenement 393 in the locations depicted in the report at pages 137 to 142 of Mr Scattini's report.[28]
4.2 Evidence called on behalf of Mr Sandhu
[28] Owen v Sandhu [2021] WAMW 15 [111] ‑ [114].
The witnesses who gave evidence on behalf of Mr Sandhu were:
(a)Mr Hawker;
(b)Mr Brock McCarty, the owner of Apollo Mapping in the United States of America, who accesses data from the owners of satellites and uses a search engine developed by him to locate images of specified places on specified dates;
(c)Mr Patrick McCluskey, who is an Inspector of Mines who attended exploration licence 396 on 4 February 2020, in response to a complaint received by the Department about some electrical work that was not compliant with Australian Standards;
(d)Mr Damien Nice, the Operations Manager and HSE Manager for Global Civil and Mining (Global). Global was engaged by Gold Tiger to undertake surface mining on exploration licence 396;
(e)Mr Darrell Higham, an electrical contractor engaged by All Points Sampling Australia Pty Ltd (APS), who oversaw the operation of the trommel system as part of the wet gravity circuit; and
(f)Mr Darren Scattini, a prospector, and tenement investigator, engaged by Mr Sandhu's solicitors in 2020 to conduct an investigation and record observations of drilling work that had been carried out on a number of tenements including exploration licences 393 and 396.
In his reasons, the Warden set out the evidence of each of these witnesses as follows in 4.2.1 to 4.2.8.
Mr Hawker gave evidence comprised in three affidavits. The affidavits were sworn by him on 25 June 2021, 7 January 2021 and 14 April 2020. He also gave oral testimony.
4.2.1 Mr Hawker's evidence in his affidavit sworn on 7 January 2021
In his affidavit sworn on 7 January 2021, Mr Hawker set out at length the work that he said had been undertaken on the three tenements the subject of the forfeiture application and also work undertaken on other tenements comprising the Credo Project from about 2017. He attached to his affidavit quotes, invoices and reports for the work that he stated had been performed. He also attached to his affidavit a number of photographs.
Mr Hawker deposed that in December 2015, Mr Sandhu authorised him to undertake exploration activities on tenements forming the Credo Project. As a result, he made an application to the Department for approval for a programme of works to undertake drilling on three tenements, one of which was exploration licence 396. The programme was approved and valid for a period of four years.[29]
[29] Owen v Sandhu [2021] WAMW 15 [122].
Between August 2017 and about April 2018, Mr Hawker, through his consultancy business HGS, conducted various field trips to mining tenements within the Credo Project to explore and identify mineral resources. He undertook literature reviews of historical drilling results and other material to identify resources on the Credo Project.[30]
[30] Owen v Sandhu [2021] WAMW 15 [123].
Towards the end of 2018, Mr Hawker spoke to Mr Sandhu about raising capital for the Credo Project. As a result of that conversation, Mr Hawker spoke to two investors introduced to him by Mr Sandhu who initially invested $500,000 to fund exploration, and in late 2018 a further $4 million.[31]
[31] Owen v Sandhu [2021] WAMW 15 [127].
In this affidavit, Mr Hawker set out the details of the work that he claimed was performed on each of the three exploration licences in the 2019 year, and attached invoices for the work. In summary, he stated this work was as follows:[32]
[32] Owen v Sandhu [2021] WAMW 15 [126], [128] ‑ [156].
(1)On 16 August 2018, Mr Sandhu authorised Mr Paul Larwood to undertake prospecting on tenement 393. Mr Larwood had an approved programme of works from the Department to carry out prospecting on 393. Mr Larwood rendered invoices for this work.
(2)On 7 November 2018, HGS applied to the Department and received approval for a programme of works to undertake RAB or air core drilling on exploration licences 393 and 396. Mr Hawker accepted a quote from Gulnair Enterprises Pty Ltd to undertake the work. The drilling was undertaken on 12 to 17 December 2018 on exploration licence 393 and on 17 to 21 December 2018 on exploration licence 396. The invoice for the work was paid in January 2019, being amounts of $41,250 for exploration licence 393 and $28,050 for exploration licence 396.[33]
[33] Owen v Sandhu [2021] WAMW 15 [290].
(3)Mr Hawker engaged Intertek Testing Services (Australia) Pty Ltd to analyse the drilling samples from the 2018 drilling on 393 and 396. The analysis was conducted between 3 and 16 January 2019. Intertek was paid $20,850.95 for analysing the samples from exploration licence 393, and $28,301.48 from samples taken from exploration licence 396.[34]
[34] Owen v Sandhu [2021] WAMW 15 [290].
(4)In January 2019, Mr Hawker and a geological crew from HGS carried out geological work on a number of the Credo Project tenements including exploration licence 449. HGS rendered invoices which were paid by Gold Tiger and allocated between the respective mining tenements.
(5)On 6 June 2019, the Department approved a programme of works to HGS to undertake a drilling program on exploration licence 396. Mr Hawker engaged Gyro Drilling (Gyro) to undertake the work. Gyro mobilised its drilling rig to site and conducted drilling on 6 August 2019. Copies of quotes, daily drill logs, photographs of Gyro's drill rig and invoices from Gyro to HGS (totalling $18,285.07)[35] were produced by Mr Hawker, and were paid by HGS.
[35] Owen v Sandhu [2021] WAMW 15 [290].
(6)On 18 July 2019, Gold Tiger and Magspec Airborne Surveys Pty Ltd (Magspec) entered into agreement for Magspec to conduct an airborne geophysical survey of the Credo Project and other land that encompassed a total of 17 mining tenements. The airborne survey was conducted between 28 August and 16 September 2019, and an invoice issued to Gold Tiger was paid (apportioned ‑ $12,127.35 to exploration licence 393, $10,550.70 to exploration licence 396 and $3,390 to exploration licence 449).[36]
[36] Owen v Sandhu [2021] WAMW 15 [290].
(7)Mr Hawker engaged Rountree to assist in the supervision and interpretation of the airborne survey by Magspec. An invoice was rendered on 16 November 2019 by Rountree apportioned between exploration licence 393 as $1558.06, exploration licence 396 as $1355.51 and exploration licence 449 as $434.60.[37] The invoice was paid by Gold Tiger.
[37] Owen v Sandhu [2021] WAMW 15 [290].
(8)Gold Tiger arranged for an Aboriginal heritage survey of tenements 393 and 396 in areas where costeans were proposed to be established from the traditional owners the Maduwongga People. Mr Wayne Glendenning was engaged and undertook work on 24 April and 2 May 2019. He rendered various accounts for the work all of which were paid by Gold Tiger (apportioned between exploration licences 393 and 396 as $10,301.50 each).[38]
[38] Owen v Sandhu [2021] WAMW 15 [290].
(9)Gold Tiger obtained a second heritage report from the traditional custodians of the land, the Marlinyu Ghoorlie People, to establish 10 costeans on tenements 393 and 396. The heritage survey was conducted by Terra Rosa Consulting on 22 August 2019, who rendered invoices for the work, all of which were paid by Gold Tiger (apportioned between exploration licences 393 and 396 as $7,032.87 each).[39]
[39] Owen v Sandhu [2021] WAMW 15 [290].
(10)Between 16 and 18, and 28 and 29 October 2019, Mr Hawker conducted a field trip to tenements 396 and 449. He prepared a report in October 2019 for that visit which contained photographs of his observations of exploration licence 449, electronic data of the track he utilised and the locations of each photograph taken by him. An invoice was rendered to Gold Tiger and paid by Gold Tiger for that work. The cost of the fieldwork was apportioned between exploration licence 396 (as $6,058.36 plus GST) and 449 (as $1,514.59 plus GST).[40]
[40] Exhibit 17, par 184.
(11)On 25 September 2019, Mr Hawker lodged an application for a programme of works with the Department to enable Gold Tiger to undertake costeaning, the construction of six tracks and a campsite on exploration licence 396. The application was approved by the Department on 7 November 2019. The expenditure for this work was as follows:
(i)a temporary exploration camp comprised of hired caravans from Fiesta Caravans and a generator for power. The camp was fully operational between 28 October 2019 and about 25 February 2020. Invoices apportioned to the 2019 year for the cost of hire was an amount of $49,122.85.[41]
[41] Owen v Sandhu [2021] WAMW 15 [290].
(ii)Gold Tiger hired a 30,000 litre diesel storage tank from Eagle Petroleum (WA) Pty Ltd, and supplies of fuel were delivered to exploration licence 396 on a number of occasions. Invoices rendered by Eagle Petroleum were paid by Gold Tiger for the 2019 year totalling $41,036.44.[42]
[42] Owen v Sandhu [2021] WAMW 15 [290].
(iii)Hampton Transport Services delivered potable water to the camp on 1 November 2019 and issued an invoice which was paid by Gold Tiger for the sum of $1,650.[43]
[43] Owen v Sandhu [2021] WAMW 15 [290].
(iv)On 25 October 2019, the Department of Water granted a water licence to take water for use on exploration licences 393 and 396. BW Solar connected a water bore on exploration licence 449 to a turkey's nest and poly piping on exploration licence 396. BW Solar rendered invoices for the ongoing hire of equipment and maintenance between September and December 2019 and were paid $107,402.46 by Gold Tiger.[44]
[44] Owen v Sandhu [2021] WAMW 15 [290].
(v)Mr Hawker engaged WA Crushing to transport a Volvo front‑end loader, a wet gravity circuit, sea containers, water tanks and miscellaneous equipment. WA Crushing issued an invoice to Gold Tiger on 10 November 2019 for $27,500 and it was paid.[45]
(vi)On 1 November 2019, HGS engaged Global to undertake costeaning and surface mining at Nyborg's Pit on exploration licence 396 using a surface miner. The surface miner was transported from Perth on a 100 tonne float. On 7 November 2019, it was unloaded and under its own power driven along the track to an area on tenement 396. Between 7 and 25 November 2019, the surface miner dug two costeans. A series of photographs of the surface miner on exploration licence 396 taken by Mr Hawker were produced. On 26 November 2019, the surface miner travelled under its own power back along the track, then was loaded onto a float and transported back to Perth. An invoice was issued by Global for the transport and use of the surface miner (for the claim period of 6 November 2019 to 26 November 2019) in the sum of $137,610.66, which invoice was paid by Gold Tiger.[46]
(vii)In October 2019, Gold Tiger hired from APS a trommel and a loader operator. From 11 November 2019, the loader operator from APS was present on exploration licence 396 where he assisted in clearing the material cut by the operation of the surface miner. The loader operator remained on the tenement until 23 November 2019. APS rendered invoices to Gold Tiger for the hire of the trommel and the wet gravity circuit and the supply of personnel in the sum of $89,661, which invoices were paid by Gold Tiger.[47]
(viii)The wet gravity circuit was initially set up in the northernmost costean on exploration licence 396, and operated from 27 November 2019 until 16 December 2019. It was then moved to Nyborg's Pit where it operated from 9 January 2020 until 15 February 2020.
(ix)In November 2019, HGS contracted with Brooks Hire Services Pty Ltd (Brooks Hire) to hire a Komatsu loader to assist with exploration on exploration licence 396. The loader was on exploration licence 396 between 11 and 22 November 2019. Invoices were rendered by Brooks Hire between 7 November and 31 December 2019 totalling $15,593.60 and were paid by HGS.[48]
(12)Mr Hawker briefed Mr Scattini to provide a report on work that had been carried out by Mr Sandhu and Gold Tiger.
(13)As to the complaint made by Mr Poole about unauthorised work, Mr Hawker deposed that this work did not relate to drilling undertaken by Gold Tiger on exploration licence 393, but was in fact related to the programme of works for the costeans, and when he marked out the existing tracks which run through the prospecting licence operated by Mr Poole, the Department marked the costeans as new tracks and informed Mr Poole that Gold Tiger had applied for new tracks.
4.2.2 Mr Hawker's evidence in his affidavit sworn on 25 June 2021
[45] Owen v Sandhu [2021] WAMW 15 [290].
[46] Owen v Sandhu [2021] WAMW 15 [290]; see also the invoice issued to Gold Tiger dated 27 November 2019; Exhibit 17, Annexure AH75, 503.
[47] Owen v Sandhu [2021] WAMW 15 [290].
[48] Owen v Sandhu [2021] WAMW 15 [290].
In this affidavit, Mr Hawker detailed his correspondence with Mr McCarty and created a map of exploration licence 396 using a Google image and the satellite data obtained from Mr McCarty. The Warden summarised this evidence as follows:[49]
The affidavit of Mr Hawker sworn 25 June 2021 deals with his interactions with Mr McCarty of Apollo. Mr Hawker deposed how he came to download photographs and maps of 393 and 396 from information provided to him by Mr Carty. Particularly, Mr Hawker deposed how he was given links by Mr McCarty to access satellite images of the Nyborg's Pit area including the costeans and the Camp on 396 on 25 November 2019.
4.2.3 Oral evidence of Mr Hawker
[49] Owen v Sandhu [2021] WAMW 15 [159] (footnotes omitted).
In his evidence in chief, Mr Hawker said there was a typographical error in his affidavit of 7 January 2021 where he had stated he was present on exploration licences 393 and 396 when the drilling program was conducted by Gulnair between 12 and 21 December 2018. When he gave oral evidence, he said that on review of this affidavit he realised that was not correct as he was away on a boat cruise between 12 and 21 December 2018.
In the Warden's reasons, he set out the matters raised with Mr Hawker in cross‑examination at length. Many of the matters raised with Mr Hawker in cross‑examination need not be repeated as these matters do not go to the grounds raised in the application for judicial review.
When Mr Hawker was cross‑examined, he agreed prior to 2018 he had carried out work and rendered invoices that have never been paid and are outstanding, but denied the unpaid invoices had been concocted for these proceedings. He said they were true invoices but he has never pursued payment.[50]
[50] Owen v Sandhu [2021] WAMW 15 [180]; see ts 83 (14 July 2021).
It was put to Mr Hawker that he obtained an old invoice and doctored it to create an invoice dated 30 January 2019, which invoice related to his January 2019 field trip to a number of tenements, including exploration licence 449, which he denied. It was agreed by Mr Hawker that the percentage breakdowns of the total of the invoice did not add up to 100% and showed work carried out was apportioned as 30% to tenement 2667, 32% to exploration licence 449 and 40% to tenement 365. He could not explain why work was carried out on tenement 2667 when the certified copy of the Register for that mining tenement shows it was surrendered on 11 July 2018. Mr Hawker said he could only say that he was unaware at the time of the field trip in January 2019 that tenement 2667 had been surrendered.
As to the use of the wet gravity circuit and whether it required a permit with the Department, Mr Hawker stated when cross‑examined that he did not agree Gold Tiger was pumping water illegally. Gold Tiger had obtained a water permit to pump water. Gold Tiger did not, however, have a permit for the wet gravity circuit. He said it was not required because the tonnage was less than required for a permit according to the meetings he had had with the Department of Water.[51]
[51] Owen v Sandhu [2021] WAMW 15 [191].
Mr Hawker explained that the clearing of scrub from the area where the surface miner first operated commenced before the arrival of the surface miner on 7 November 2019 using the Volvo front‑end loader belonging to Gold Tiger. The Komatsu hired from Brooks Hire arrived on or about 11 November 2019, and was used in conjunction with the surface miner on exploration licence 396 until 22 November 2019. The fuel delivered by Eagle Petroleum was used in the operations on exploration licence 396 by the Volvo, the Komatsu, the generators for the camp, the pumps, the trommel, the surface miner and three or four light trucks on site.
As to the map that he created using the satellite image provided by Mr McCarty, the Warden recorded Mr Hawker's evidence in cross‑examination as follows:[52]
Mr Hawker said he had dealings with Mr McCarty from Apollo on 2 occasions. Mr Hawker was referred to his affidavit of 25 June 2021 and said he obtained high resolution satellite images from Mr McCarty by following instructions and links provided to him by Mr McCarty he was able to produce various satellite image photographs of land as at 25 November 2019. He also said he was able to transport some of the satellite images via a program on his computer such that he could overlay other information such as where he tagged the location of various areas on 396. He further said the overlay he placed on the original satellite image from Mr McCarty was not interfered with. He believed the satellite image was originally obtained from a company called DigiGlobe. Mr Hawker said he does not know of any registration system, either in America or Australia, for the sale of satellite images.
4.2.4 Mr McCarty's evidence
[52] Owen v Sandhu [2021] WAMW 15 [202] (footnote omitted).
Mr McCarty gave evidence by audio link from Boulder Colorado in the United States of America. In his evidence in chief, Mr McCarty referred to a letter to Gold Tiger dated 29 June 2021 to which was attached a copy of his resume, a copy of an email chain of emails he exchanged with Mr Hawker in May 2021, a copy of a satellite image he stated was taken by a satellite on 25 November 2019 and a copy of a dialogue box with the date 29 November 2019 recorded on it.
Mr McCarty said in his letter to Gold Tiger he was contacted by Mr Hawker on 14 May 2021 to enquire if he could provide satellite images of exploration licences 393 and 396 for the purposes of establishing that trenching and drilling had occurred in about December 2019. Mr Hawker provided to Mr McCarty the tenement outlines and DXF formats. Mr McCarty responded to Mr Hawker on the same day and asked for further information and some technical specification to assist with the request from Mr Hawker. Mr Hawker provided the 'go ahead' to Mr McCarty, and by email of 17 May 2021 Mr McCarty provided a link to the image of the tenements requested with a Dropbox file to confirm the image provided was created on 25 November 2019.
Mr McCarty identified that the screen grab of the satellite image attached to his letter of 29 June 2021 was the same image that he sold to Mr Hawker from Image Hunter, a search engine invented by his business.
The Warden recorded Mr McCarty's evidence in chief as follows:[53]
Mr McCarty said Apollo does not create the satellite images, rather they use third parties to access the satellite and provide the imagery. According to Mr McCarty, customers of Apollo identify what images they might want to purchase by sending to him a polygon and check file or kmv format or latitude and longitude coordinates and he then uses Apollo Mapping's online search engines to search from some 54 satellites and 19 companies worth of data. Mr McCarty said based on the date his customer needs and the cloud cover of the location at that time he recommends the data to provide to the customer. Mr McCarty said the satellite images delivered to the customer are in a format known as GeoTiff via either Dropbox, a digital delivery service or a filesharing service.
Mr McCarty said the only modification Apollo made to the images he sells is by taking a 16-bit image, being what he described as a quick way to a raw image on a cell phone and it is how all photographs begin, and then stretch it changing it from a 16-bit image into an 8-bit image. According to Mr McCarty, he has had communications with Mr Hawker in the past and more recently to establish the telephone link for him to give evidence and by email as contained in his letter of 29 June 2021.
[53] Owen v Sandhu [2021] WAMW 15 [210] – [211].
The Warden summarised the cross‑examination of Mr McCarty. It is apparent that much of the cross‑examination of Mr McCarty related to the communication that Mr Owen had had with Mr McCarty in February 2021. Mr Owen requested images from Mr McCarty. Mr McCarty declined to assist Mr Owen. He said he declined to assist Mr Owen because he did not have the time to deal with all of his questions and the back‑and‑forth with Mr Owen. He had never worked with Mr Owen before so he made a decision not deal with him, and because Mr Owen had made a request for images for a ginormous area it was not worth his time to continue to deal with Mr Owen.
Mr McCarty denied that he was happy to do business with Mr Owen until he provided coordinates that were consistent with the same areas requested by Mr Hawker. He said he was happy to do business with Mr Hawker and he had previously done business with him on about six occasions between 2015 and 2021.
When it was put to Mr McCarty in cross‑examination there was a registration process for the publication of satellite images in Australia, Mr McCarty said he did not know what that was. When he was asked where he obtained his satellite images from, he said he had already given an answer to that question. When he was pressed on this issue, he stated he did not intend to answer any more questions and, after a short period of time, he terminated the audio link to the Warden's Court.
4.2.5 Mr McCluskey's evidence
In his evidence in chief, Mines Inspector Mr McCluskey said he attended exploration licence 396 on 4 February 2020 unannounced with another inspector. On the same day, he prepared inspector's field notes of his visit.
It appears Mr McCluskey had some difficulty finding the area of 396, but when the site was eventually found he came across a number of people. These were a site manager from APS, a loader operator from BW Solar and a dewatering technician. He introduced himself and advised them of the reason for his visit.
Mr McCluskey carried out an inspection of the area and then drove through to what he referred to as a complex where there was caravans for accommodation, at least two electrical generators set up to supply power to both sides of the camp because it straddled across a track, switchboards, extension cables running around the site and a small treatment plant for sampling.
As a result of his inspection, Mr McCluskey issued seven defect notices to improve electrical safety and to have the electrical installations comply with Australian Standards.
After completing his inspection when driving from the site Mr McCluskey identified four or five costeans, each located a few hundred metres apart that had been dug out, or with ore stockpiled against them. He was unable to say how old the costeans appeared to be.
When he was cross-examined, he said when he arrived at the mining plant, the processing plant, including the trommel, were operating. He did not agree a white generator on the mining tenement appeared to be clean as if it had just arrived on site and described it as being away from the mining area and just a generator that was bright. He went on to describe a pipeline running from the processing area and a series of ponds used to hold and reclaim reused water from the operating plant.
Mr McCluskey gave no evidence that there was any relevant breach of any approved programme of works. The only statement in his written report about a programme of works was a statement that 'It is possible that some of the works being undertaken may extend beyond the scope of approvals under the POW'.[54] When asked about this note, Mr McCluskey said this note was made by the other inspector, Mr Hales, and related to an 'environment point' about extracting x amount of tonnes.[55]
4.2.6 Mr Nice's evidence
[54] Exhibit 22.
[55] ts 30 (14 July 2021).
Mr Nice is an employee of Global. His evidence was contained in two affidavits. The first was sworn by him on 11 March 2020, and the second 14 December 2020. He also gave oral evidence.
In his affidavit sworn on 14 December 2020, Mr Nice deposed that in October 2019, Global were engaged by Gold Tiger to undertake surface mining in the Credo region north of Coolgardie. He prepared and forwarded, on 19 September 2019, a proposal by Global to carry out surface mining at the Credo site, which proposal was accepted by Gold Tiger on 1 November 2019.
It appears that Mr Nice only attended the Credo site once and that was on 17 October 2019 when he met with Mr Brad Green and Mr Hawker. The main purpose of his visit to the Credo site was to ensure the surface miner was able to access the area it was intended to be used.
In his December affidavit, Mr Nice said he had determined from the business records of Global the surface miner arrived at the Credo site on 7 November 2019, and that the daily record sheets from employees of Global at the Credo site recorded that the surface miner cut two costeans between 7 November and 25 November 2019. When cross‑examined, Mr Nice said the daily shift reports prepared by the surface miner crew had sufficient information to calculate how much was milled in each day the surface miner was operated on site, or the amount that had been calculated by the surface miner crew.
Mr Nice stated in his December affidavit that on 27 November 2019, Global rendered an invoice to Gold Tiger for work carried out at the Credo site for $137,610.66, which was paid on 13 February 2020.
When Mr Nice was cross-examined, counsel for Mr Owen put a number of questions to Mr Nice which went to whether the records produced by Global, including documents annexed to Mr Nice's affidavits, were accurate. In particular, he was asked about a subpoena to produce documents issued to Global relating to the mobilisation of machinery to the Credo site, float permits and all permits evidencing details of who transported the surface miner. He said it was the chief financial officer of Global, Mr Andrew Byrne, who responded to the issues regarding items required under the terms of the subpoena. He said that Global used a transport contractor to float the surface miner to site and he believed the company used was Charlie Hull. However, he was advised the only document received was an invoice from Centurion Transport so he may have been mistaken as to who transported the surface miner as it was a while ago. He also said he was aware that Centurion Transport indicated they could not assist with a response to the documents called for in the subpoena and, as a result, he did nothing more.
Mr Nice was also asked questions about various entries in the Start‑up Action Register (Register) which was an internal document prepared by him for Global's Operation Management Plan following acceptance by Gold Tiger of the quote. It was put to Mr Nice that some items in the Register had already occurred by the time they were recorded as action required, to which Mr Nice said that it would be a mistake that he could not explain. He denied that the Register was a document created by him after November 2019. He said that the printing at the bottom of the Register that stated, 'Revision 4 18 August 2018' was the last time the document had been revised and it was part of the document control system within Global.
Mr Nice was asked to explain when cross-examined as to why Gold Tiger was only charged for 10 days of hire of the surface miner when the surface miner was on site for 20 days. Mr Nice said the charges for the hire of the surface miner were not rendered when the Global crew were not on site, including when there was a bushfire in the vicinity of the Credo site. He also said that the job was being carried out as a trial and Global were not trying to make a million out of it, they were trying to help Gold Tiger prove up a concept.
When Mr Nice was re‑examined, he confirmed the entries and headings on the Register indicated by dates when each of the actions had to be completed and by whom.
4.2.7 Mr Higham's evidence
Mr Higham is an electrical contractor who lives in Hamilton Hill. Mr Higham has been involved in mining for over 30 years, and had prior experience in the operation of wet plants. He gave evidence by affidavit dated 11 January 2021. He also gave oral evidence.
In his affidavit, Mr Higham deposed that he was engaged by Mr Bruce Strapp to carry out contract work for APS on a trommel system at Gin Gin on 15 and 16 November 2019. He was then engaged by APS to oversee the operation of the trommel system as part of a wet gravity circuit on mining tenements near Credo Station. His evidence was that he started work at the tenement on 25 November 2019 and worked until 1 December 2019. He left and returned to the tenement and worked from 9 December until 16 December 2019. He then left on 17 December 2019 to take a break for Christmas. He returned on 17 January 2020. Whilst he was on the mining tenement, he stayed at the mining camp on site. He produced photographs of the camp.
Mr Higham said in his affidavit that when he first arrived on 25 November 2019 he was shown a costean (he referred to this costean as Costean 1) that had been dug on the mining tenements, and that was where the wet gravity circuit first operated.
Mr Higham stated in his affidavit that the wet gravity circuit was moved from Costean 1 to Nyborg's Pit whilst he was absent from the mining tenements between 17 December 2019 and 17 January 2020.
Mr Higham produced a short video that he said he had taken using his mobile phone of the wet gravity circuit operating at Costean 1 on 11 December 2019. When Mr Higham was cross‑examined, it was put to him that the video recording of the wet circuit operating was taken in or about late January or February 2020, which he denied. He said it was taken on the date and at the time shown on his camera. When it was put to him that he could have changed the date of the video recorded on his phone he said he did not know how to do that. A copy of the screenshot was taken of the meta data for the video recording, and then produced into evidence.[56] The screenshot of Mr Higham's mobile phone states the location of the video was 'Mount Burges', the date was 11 December 2019, and the time the video was taken was 1.57 pm.[57]
[56] Exhibit 38.
[57] Exhibit 38.
Mr Higham attached to his affidavit invoices he rendered to APS for his work at Gin Gin and at the mining tenement between 25 November to 1 December 2019, 9 to 16 December 2019 and 17 to 30 January 2020. When he was cross‑examined, Mr Higham denied that the invoices attached to his affidavit were created by him at the request of Mr Strapp from APS. When it was put to Mr Higham that he was not present on the mining tenement in November and December 2019, he vehemently denied this proposition and said he was present on the mining tenement during that period in accordance with his invoices.
Mr Higham also said for the period from 17 to 30 January 2020 whilst working on the mining tenements he was doing clean‑up work and sampling.
4.2.8 Mr Scattini's evidence
Mr Scattini is a prospector and tenement investigator who lives in Kalgoorlie. Mr Scattini was engaged by Mr Sandhu's solicitors, on behalf of Gold Tiger to provide an expert opinion on whether traces of alleged exploration on t exploration licences 393 and 396 exist, and an estimate of when that exploration took place.
Mr Scattini does not hold any formal qualifications in analysing traces of drilling such as drill holes and drill bags to estimate when that drilling occurred. Mr Scattini was engaged as a driller for Ausdrill for about four years from 2009 to 2012, during which time he attained a Certificate III in Exploration Drilling Operations. He has also been engaged in pegging mining tenements, attending to relevant paperwork associated with prospecting, collected, crushed and tested reef samples and used a front‑end loader. He has not conducted drilling on any mining tenements he holds.
On 16 October 2020, Mr Scattini received instructions to prepare a report into certain aspects of applications for forfeiture of a number of tenements that included exploration licences 393 and 396 and other tenements that were not the subject of the application being dealt with by the Warden.
In the preparation of his report, Mr Scattini took photographs, prepared maps and diagrams and visited the exploration licences the subject of the applications for forfeiture. He used two GPS and a compass to locate the mining tenements on the ground.
The tasks that Mr Scattini was instructed to carry out in respect of exploration licences 393 and 396 was to inspect coordinates (eastings and northings) provided to him in an Excel spreadsheet by Mr Sandhu's solicitors titled, 'E16-393 and E16-396 Drill hole pick ups December 2018.xisx'.[58] These were the drill holes that Mr Sandhu says were drilled on both exploration licences 393 and 396 between 12 and 17 December 2018.
[58] Exhibit 29, pt 3, Annexure J.
The Warden made relevant findings about the evidence contained in Mr Scattini's report about Annexure J and what was located by Mr Scattini when he inspected each of the locations specified by the coordinates. He also dealt with Mr Hawker's evidence about why he had claimed expenditure for the work carried out on P16/2790 (which Mr Hawker said was a mistake). However, his Honour found that it was not a mistake to include P16/2790 in exploration licence 393 as there was evidence before the Warden from a number of reports that P16/2790 was now part of exploration licence 393. His Honour's findings about these matters were as follows:[59]
That document marked annexure 'J' contains the following headings: label, easting, northing, RL, Depth, dip, azim, grid, Type, Tenement. Each of those headings has various information contained within it and, in particular, the details of the labels, the tenant number to which the label relates and the easting and northing data. It also contains similar details in relation to P 16/2790, a mining tenement not specifically the subject of these proceedings.
I make this observation about P 16/2790. In the course of cross‑examination of Mr Hawker by counsel for Mr Owen, Mr Hawker was shown a copy of the Department Register Search for P 16/2790. Mr Hawker was asked to explain why he had claimed expenditure for work carried out on P 16/2790 in invoices within the Credo Project when P 16/2790 was dead, it being withdrawn on 16 January 2013. Mr Hawker struggled to answer that question and he suggested the reason may have been he did not check the status of P 16/2790 in a list given to him by Mr Sandhu. This same mining tenement, P 16/2790, has again been referred to by Mr Sandhu in the 2018 December drilling program. According to the Report, various drill pegs with labels consistent with those from within the lists provided by Kavenagh Legal were found within 393. The easting and northing description of the location of the datum of P 16/2790 and that mining tenement itself appears to be in the location of Mr Scattini's observations of drill pegs bearing labels for the 2018 drilling program on 393 in the vicinity of the locality known as Sea Gull Mine. Further, the eastings and the northings of the datum for P 16/2790 appears to be located in the same vicinity as the drill pegs and labels found by Mr Scattini on 393. It can be inferred, in my opinion, from those observations that part of the 2018 drilling program claimed by Mr Sandhu was conducted on 393 in the vicinity of the late mining tenement P 16/2790, it being incorrectly referred to as if it were still alive. My inference that P 16/2790 was located on 393 is fortified by maps contained within the Aboriginal Heritage Survey by Mr Glendenning and Terra Rosa Heritage Survey where the location of P 16/2790 is noted on maps within those reports as being in the same location shown on maps within the Report.
[59] Owen v Sandhu [2021] WAMW 15 [274] ‑ [275] (footnotes omitted).
The Warden then went on to make findings about the observations made by Mr Scattini in respect of the drill holes and drill bags that he located on exploration licences 393 and 396 as follows:[60]
In total, (based on my calculations) the list of drill holes from the 2018 drilling program in annexure 'J' is 220. The Report indicates there are 72 (drill hole) labels in respect to 393, 14 labels in respect to P 16/2790 being a total of 86 labels on 393. There are a total of 134 labels on 396.
The Report identifies Mr Scattini found 80 of the labelled drill holes of the 86 labelled drill holes on 393. Of those 80 labelled drill holes Mr Scattini was able to identify and match 43 labelled drill holes to the label numbers off either or both the drill peg or from writing on the drill bags. He made no observations of a label number on 37 labelled drill holes from either a drill peg or drill bag, as they were absent or had no legible writing on them, if present.
Further, the Report identifies Mr Scattini found 100 labelled drill holes of the list of 134 labelled drill holes on 396. Of those 100 labelled drill holes Mr Scattini located he was able to identify and match the label on 85 labelled drill holes predominately by writing on the drill peg. Mr Scattini was unable to identify 15 of the labelled drill holes as there was no peg present or no drill bags with writing legible on them. He made no observation of 34 labelled drill holes at all.
The Report provided photographs of all the drill holes locations Mr Scattini observed with labelled numbers, if visible and identifiable, and drill bags he located from the labelled drill list marked annexure 'J' to his initial instructions from Kavenagh Legal of 16 October 2020.
[60] Owen v Sandhu [2021] WAMW 15 [276] ‑ [279].
The Warden recorded in his reasons that Mr Scattini was cross‑examined about a list of incorrect coordinates in an Annexure E he was provided with for a drilling program in 2017 that was identical to drill program by Delta Gold in 2000 in respect of tenements 415 and 365 (which were not tenements the subject of the application for forfeiture). Mr Scattini's evidence was that when he went to locate the drill holes by the coordinates given to him, he was unable to locate the drill holes. He was later given another set of coordinates via a gpx file. Mr Scattini said that the original coordinates were wrong as they had been transferred into a particular program that was set to the wrong coordinate system. It was put to Mr Scattini that he had not complied with his obligation to carry out his instructions independently. He disagreed and said his original instructions changed and new instructions were given to him which he followed, and he then found some of the drill holes from 2017.
4.3 The Warden's findings
The Warden found Mr Owen bore the onus of proof to prove on the balance of probabilities that Mr Sandhu failed to meet the minimum expenditure conditions in the 2019 year for exploration licences 393, 396 and 449 before a recommendation for forfeiture of all or any of those exploration licences can be contemplated to be made.
The Warden found that Mr Owen had failed to discharge the onus upon him to satisfy him (the Warden), on the balance of probabilities, that Mr Sandhu had not expended on each of the exploration licences the minimum expenditure required for each in the 2019 financial year.
His Honour found that Mr Owen failed to produce any credible evidence that Mr Sandhu had failed to meet the minimum expenditure conditions in the 2019 year on exploration licences 393, 396 and 449. To the contrary, his Honour found that Mr Sandhu, through his witnesses, had produced reliable and credible evidence that the minimum expenditure for exploration licences 393, 396 and 449 had been met in the 2019 year consistent with the expenditure outlined in the aide memoire.[61]
[61] The aide memoire itemised the expenditure claimed by Mr Sandhu in the proceedings which totalled $162,964.22 for tenement 393, $611,838.20 for tenement 396 and $21,058.38 for tenement 449.
His Honour made the following specific findings about the evidence.
The Warden referred to the aide memoire of expenditure claimed to have been expended by Mr Sandhu on each of the three exploration licences in the 2019 year. He found that the amounts were the product of all invoices referred to in the evidence presented by the witnesses for Mr Sandhu.
The Warden observed that Mr Owen:
(a)had not challenged the expenditure claimed for shire rates and annual rental for each of the three exploration licences;
(b)had not challenged the expenditure claimed for the cost of field visits and preparation of the Aboriginal heritage surveys by Terra Rosa and Mr Glendenning; and
(c)other than denying any other work was conducted or expenditure incurred on the three exploration licences in the 2019 year, no evidence was led by Mr Owen that disputed expenditure claimed for the airborne survey by Magspec or the interpretation of that survey by Rountree, or administration services by Anderson's Tenement Management.
In respect of the items (not the subject of challenge), the Warden found that each of those services were incurred in the 2019 year and were allowable expenditure.
4.3.1 The 2018 drilling program on exploration licences 393 and 396
The Warden then made the following findings in respect of the 2018 drilling program on exploration licences 393 and 396.
The Warden first had regard to Mr Owen's evidence about the observations he said he made in August and September 2018 and on 16 December 2019.
The Warden observed that Mr Owen had said that he made observations in August and September 2018 of historical drilling on 393 and 396 and that when he made his inspection on 16 December 2019 he saw no signs of further drilling. The Warden did not accept Mr Owen's evidence on this point. He was surprised and found it unusual that no photographic or electronic record of observations made by Mr Owen were made until June 2020, which was months after he had lodged the applications for forfeiture. In particular, he found it very unusual that Mr Owen did not take any photographs using his mobile phone on 16 December 2019, which was several days before the applications for forfeiture were lodged.
His Honour did not accept the evidence of Mr Owen that he did not see any signs of drilling on exploration licences 393 and 396 because it was inconsistent with observations of Mr Scattini. In particular, the Warden found it was difficult to accept Mr Owen was unable to observe any of 180 drill holes from the 2018 drilling program seen by Mr Scattini when the photographic evidence in Mr Scattini's report was considered.[62]
[62] Owen v Sandhu [2021] WAMW 15 [300].
In the proceedings before the Warden, his Honour was not acting as a judicial officer but as an administrative decision‑maker performing a statutory function to provide a report to the Minister, and to make a decision as to whether the application before him should be dismissed or to make a recommendation to the Minister pursuant to s 96 of the Mining Act. Although, the principles outlined by Pullin JA in A Child v The State of Western Australia apply to judicial officers, when regard is had to the statutory duty cast upon the Warden to provide reasons and the adversary nature of a forfeiture application, a warden should apply those principles and set out the steps in the reasoning process that leads to the final conclusion. When regard is had to the Warden's reasons it is clear that his Honour did exactly that.
It cannot be found that the Warden failed to provide adequate reasons for making an adverse credit finding against Mr Owen.
The Warden gave very clear and cogent reasons why he formed the opinion and made the findings that he did not accept Mr Owen's evidence. The parties were not put in a position where they were not able to discern why his Honour made the decision to dismiss the application for forfeiture.
By his Honour's reasons the parties could not have been left in doubt as to why his Honour rejected the evidence of Mr Owen, and why he accepted all of the evidence given on behalf of Mr Sandhu.[112] In addition, all of the findings his Honour made as to why he rejected the evidence of Mr Owen were findings that were open on the evidence to find. Consequently, it cannot be found that in rejecting Mr Owen's evidence, his Honour's path of reasoning was legally unreasonable.
[112] Owen v Sandhu [2021] WAMW 15.
Mr Owen's case before the Warden relied upon findings of the credibility and reliability of the witnesses.
Mr Owen alleged that Mr Hawker, together with all of the other witnesses called on behalf of Mr Sandhu, were liars and all of the invoices produced by Mr Hawker and other documents were fabricated. He claimed that drilling work that had been performed on exploration licences 393 and 396 had been performed either after the 2019 year or prior to the 2019 year. He claimed that the cutting of the costeans and the wet gravity circuit work was carried out in early 2020, and after the 2019 reporting year. He disputed that work on 449 had not been performed at all.
It is clear from his Honour's findings that the Warden rejected Mr Owen's evidence. He found his evidence not to be credible nor reliable. He found that Mr Poole's evidence whilst honest was not reliable.
His Honour found each of the witnesses who gave evidence on behalf of Mr Sandhu were credible, that the evidence was reliable and all of the material documents produced by the witnesses could be relied upon, in particular, that all of the invoices were true and correct and were evidence of expenses incurred in the 2019 year in respect of each of the three tenements.
It is clear from the specific findings the Warden made in his summaries of the evidence of each of the witnesses for Mr Sandhu that the Warden had before him not only direct evidence from witnesses who said when work was performed, but also there was substantial documentary contemporaneous records recording the performance and dates of the work.
The principal reason why the Warden did not find Mr Owen's evidence to be credible was because Mr Owen produced no direct contemporaneous photographic evidence or any documentary evidence of any kind to support his claims that no work had been carried out during the 2019 year on any of the three exploration licences. Mr Owen only visited two of the tenements on three occasions.
The Warden's reasons were comprehensive and to the point. It is apparent from his reasons that his Honour had regard to the fact there was almost an overwhelming large volume of documentary evidence, including photographs, videographic evidence and the satellite image and data, that directly contradicted Mr Owen's evidence that he had observed that no work had occurred on the exploration licences in August and September 2018 and December 2019. His Honour made it clear when rejecting Mr Owen's evidence that Mr Owen had produced no credible evidence that contradicted any of that evidence and that there was no basis to find that any of the evidence adduced on behalf of Mr Sandhu was fabricated.
The photographs that Mr Owen did produce were given no weight by the Warden. It is obvious from his Honour's reasons that the photographs could not have any evidential weight because:
(a)the photographs Mr Owen produced on 16 December 2019, which was the day that he visited exploration licences 393 and 396, were not photographs taken on or near those tenements but were photographs taken near tenement 415 (which Mr Owen took to support a different application for forfeiture); and
(b)the photographs that Mr Owen did take of exploration licences 393 and 396 were taken in June 2020, which was months after he had made the applications for forfeiture.
At the hearing of the application for judicial review, in oral submissions, Mr Owen identified the 'documentary evidence' that he claims in this ground as documentary evidence that the Warden failed to give any or any proper consideration to. He stated these were mobile telephone records which he contends supported his evidence that he visited the tenements on the days that he said he did.
However, the Warden did not find, nor did it appear to be in dispute that Mr Owen had visited exploration licences 393 and 396 on two occasions between August and September 2018 and again on 16 December 2019. What the Warden did find was that Mr Owen's account of what he claimed to observe on those occasions was not credible nor reliable.
For these reasons, ground 3 fails.
6.5 Ground 4
Ground 4 states that due to the error in grounds 1(a) and (b) the Warden's path of reasoning to find that the minimum expenditure had been made with respect to the 2018 drilling program on exploration licences 393 and 396 was unreasonable. However, the particulars to ground 4 do not relate to grounds 1(a) and (b) (which relates only to the work to dig the costeans and ground mining using the wet gravity circuit).
The particulars to ground 4 relate to evidence of drilling work that was said to have been carried out in 2019, and the evidence about the drilling program given by Mr Hawker and the consultant, Mr Scattini, who prepared a report of activity in a number of tenements including the three exploration licences the subject of the proceedings before the Warden.
In ground 4, Mr Owen claims there was no evident justification or rational foundation in the Warden's finding that he accepted the evidence of Mr Hawker that a drilling program was conducted in 2018 when there was clear discrepancies in evidence of Mr Hawker, in circumstances when Mr Hawker's credibility was an essential part of the Warden's findings. In particular, Mr Owen points to the evidence before the Warden that in his affidavits Mr Hawker had stated on oath that he was present when the drilling program was conducted in December 2018 on exploration licences 393 and 396, however, when he gave oral evidence he stated that was incorrect and that he was overseas on a cruise when the drilling program was conducted.
Mr Owen also made a submission that Mr Hawker's evidence about the 2018 drilling program should not have been accepted by the Warden because he made a large amount of mistakes in a number of documents, and points to evidence that Mr Hawker admitted that he had been mistaken not only about:
(a)being present when a drilling program was said to have been conducted in December 2018 but also when he created an invoice dated 30 January 2019 claiming the work that he performed in his January 2019 field trip to a number of tenements including exploration licence 449; and
(b)the invoice did not add up to 100% and included work on one tenement that had been surrendered prior to his trip in 2019.
On this basis, Mr Owen claims that it was unreasonable for the Warden to accept Mr Hawker's evidence about the 2018 drilling program.
Mr Owen also submitted that throughout the cross‑examination of Mr Hawker, Mr Hawker was revealed not to be a credible witness, and for this reason it was unreasonable for the Warden to accept his evidence about the 2019 expenditure.
One of the fundamental difficulties with this submission is that attached to the affidavit sworn by Mr Hawker on 7 January 2021 were copies of all of the invoices submitted by the contractors referred to in [60] of these reasons. Consequently, whether Mr Hawker was present or not when the drilling work was undertaken in December 2018 was and is immaterial.
Mr Hawker was cross‑examined at length by counsel for Mr Owen. In the Warden's reasons he set out the matters raised with Mr Hawker in cross‑examination at length.
It did appear that some of the invoices that Mr Hawker submitted on behalf of his company HGS for work carried out in 2017 on tenements held by Mr Sandhu may have been created after 2017 because there is a notation on a number of the invoices for work in 2017 that the work was unpaid due to Mr Hawker eventually 'becoming a Director and receiving shares'. It appears the reference to Mr Hawker 'becoming a Director' is a reference to him becoming a director of Gold Tiger Resources on 9 October 2018 and Gold Tiger Holdings on 1 October 2020. Consequently, it appears that those invoices would have been created after 2017. However, it was not put to Mr Hawker that he did not carry out this work, only that it was work that he was to be later paid in shares.[113] It was, however, put that a drilling campaign did not occur in 2017 because the records of Mr Hawker's mobile telephone showed his location was in Perth. However, when he gave evidence, Mr Hawker gave an explanation about that. He said that he had a satellite phone (which he took to the tenements) and he left his mobile telephone with his wife in Perth. Mr Owen claims that this explanation was not credible. However, it was an explanation that was open, at law, for the Warden to accept.
[113] ts 83 (14 July 2021).
These submissions by Mr Owen ignores the fact that, leaving aside the observational evidence of Mr Scattini, there was independent documentary evidence before the Warden that supported the Warden's findings that:
(a)the drilling program occurred in 2018;
(b)the Department had approved the drilling on exploration licences 393 and 396;
(c)the drilling contractor Gulnair submitted invoices and was paid for drilling work carried out in December 2018; and
(d)Intertek submitted invoices and was paid for work undertaken in January 2019 to analyse samples taken from the drilling samples in December 2018.
Although Mr Owen claimed in the hearing before the Warden that all of these documents were fabricated, he adduced no evidence in support of that contention.
In addition, although Mr Hawker was cross‑examined at length about whether some invoices rendered by contractors had been altered, (in particular, the Gulnair invoice for the 2018 drilling program) no evidence was put before the Warden by Mr Owen to support such a contention.
All of the documentary evidence relevant to the 2018 drilling program was clearly logically probative evidence that it was open to the Warden to take into account and accept, when finding that the expenditure claimed by Mr Sandhu for the 2018 drilling program had been incurred and was allowable expenditure.
Although the persons who carried out the drilling work were not called to give evidence on behalf of Mr Sandhu, it was open to the Warden to give weight to the documentary evidence as a matter of law. This is particularly so where there was other direct evidence which supported the documentary evidence, such as the evidence of observations made by Mr Scattini and the photographs taken by him, which photographs formed part of his lengthy report.
How much weight the Warden should or should not have given to the documentary evidence, and the evidence of Mr Hawker is not a matter that is not open to be challenged in an application for judicial review because such challenge can only go to the merits of his Honour's decision.
In this ground also, Mr Owen claims that the Warden provided inadequate reasons when he relied upon the oral, documentary and photographic evidence produced by Mr Scattini to find that the drilling program occurred during the 2019 expenditure year when Mr Scattini's opinions about his observations were excluded from the evidence during the hearing.
Mr Owen in effect claims that Mr Sandhu withdrew the evidence of Mr Scattini during the course of the hearing before the Warden when senior counsel for Mr Sandhu informed the Warden that Mr Scattini's observations and opinions were excluded, and that only the photographs and an equation in Mr Scattini's report were relied upon.[114] Mr Owen says, in these circumstances, the Warden erroneously accepted Mr Scattini's evidence.
[114] ts 49 and 54 (17 April 2023).
However, this submission is an incorrect characterisation of what was put to the Warden as to what was in Mr Scattini's report that Mr Sandhu sought to rely upon.
In respect of exploration licences 393 and 396, Mr Scattini was instructed by Mr Sandhu's solicitors on behalf of Gold Tiger to provide answers to the following questions as follows:[115]
[115] Owen v Sandhu [2021] WAMW 15 [272] (footnote omitted).
Your brief is to go to the location of each alleged drill hole described in annexure J and determine whether there is any sign or evidence of a drill hole at that location and if so, whether:
a.the drill hole is on the land the subject of exploration license 16/393 (16/396);
b.whether the state of the drill hole is consistent with the drill hole having been undertaken in the period 12 December 2018 to 17 December 2018;
c.whether there is a peg in the ground in the vicinity of the drill hole;
d.whether the peg is consistent with the peg having been in the ground since December 2018;
e.whether there are any sample bags in the vicinity of the drill hole;
f. whether the state of the sample bag is consistent with the sample bag having been on the ground since December 2018;
g.whether there is a texta mark on the bag;
h.whether the texta mark is consistent with the texta mark being on the sample bag since December 2018.
It was evident from the transcript of proceedings that there were objections about the admissibility of Mr Scattini's evidence. After Mr Scattini's affidavit and report was tendered into evidence,[116] Mr Scattini was cross‑examined. Towards the end of his cross‑examination, senior counsel for Mr Sandhu informed the Warden that Mr Sandhu would only rely upon the answers given by Mr Scattini to questions, a, c, e and g.[117]
[116] Exhibit 39.
[117] ts 498 (15 July 2021).
After a short adjournment, senior counsel informed the Warden that:[118]
(a)there had been no agreement between the parties. However, that his client relied upon Mr Scattini's observations, but not on his opinions he drew as to what he had observed at each location (at each of the coordinates);
(b)there was disagreement between counsel as to what conclusions can be drawn from those facts (Mr Scattini's observations); and
(c)there was a calculation that Mr Scattini set out at the end of his report based on deterioration of sample bags, in respect of which his client relied together with his observations, but none of his opinions.
[118] ts 499 ‑ 501 (15 July 2021).
Consequently, senior counsel for Mr Sandhu informed the Warden that his client did not rely upon the opinions stated by Mr Scattini in his report but did rely upon his observations and an equation. For this reason, the answers in the report to questions b and f were not relied upon. Mr Scattini's report provided answers to both questions b and f. In particular, he opined as to whether the state of each drill hole that he observed on exploration licences 393 and 396 were consistent with the drill holes having been undertaken in December 2018, and whether the state of any sample bag was consistent with the sample bag having been on the ground since December 2018.
The Warden in his reasons made it very clear by not referring to any of the opinions that Mr Scattini expressed in answer to questions b and f, that his Honour did not have regard to these opinions. In addition, it appears he did not have regard to the equation in Mr Scattini's report.
In any event, Mr Scattini's evidence was not the only evidence that the Warden had regard to in finding that the 2018 drilling program had taken place on exploration licences 393 and 396. Mr Scattini's evidence was one piece of evidence, which in colloquial terms can be described as a piece of the puzzle, which evidence corroborated the evidence of Mr Hawker, and was evidence in addition to the documentary evidence that recorded the drilling work had taken place.
In addition, Mr Owen claims that the Warden made an erroneous finding in failing to particularise what evidence was relied upon to reach his conclusion. This submission has no foundation. The Warden made very detailed findings of the evidence that he relied upon to reach his conclusion, that the 2018 drilling had occurred on exploration licences 393 and 396.
In particular, the Warden checked the coordinates of what was claimed to have been drilled in the 2018 drilling program. Those coordinates were provided to Mr Scattini by Mr Sandhu's solicitors. His Honour checked those coordinates against what was in Mr Scattini's report about Mr Scattini's observations at each one of those coordinates, and found that the observational evidence of Mr Scattini was consistent with and corroborated the evidence of Mr Hawker that the 2018 drilling program took place as stated by Mr Hawker in December 2018.
For these reasons, it was open for the Warden to accept and rely upon the evidence of Mr Scattini.
For these reasons also, Mr Owen has been unable to establish that any of the findings made in the Warden's path of reasoning that the expenditure on 2018 drilling program on exploration licences 393 and 396 were not open to be made on the evidence.
For these reasons, Mr Owen has failed to establish ground 4.
6.6 Ground 5
Ground 5 refers to ground 3 and it also relates to ground 2.
In the particulars to ground 5 and oral submissions made by Mr Owen, it became clear that in ground 5 Mr Owen claims that the Warden's path of reasoning to find that the minimum expenditure had been incurred on exploration licence 396 by accepting Mr McCarty's evidence, was legally unreasonable.
Mr McCarty's evidence was essentially that he sold a satellite image to Mr Hawker, which satellite image had been retrieved using the program that Mr McCarty's business had developed. When cross‑examined, Mr McCarty rejected the propositions repeatedly put to him that:
(a)he favoured Mr Hawker over Mr Owen; and
(b)the satellite image Mr McCarty had supplied to Mr Hawker was not reliable nor credible because Mr Owen had unsuccessfully sought to obtain satellite imagery from Mr McCarty.
It is accepted by Mr Sandhu that the satellite image that was acquired from Mr McCarty's business was important evidence, and demonstrated that Mr Owen's evidence was objectively untrue, but Mr McCarty's evidence was not the only piece of contemporaneous evidence that the work to dig the costeans commenced after the Department approved the programme of works on 7 November 2019 and continued through December 2019.
The evidence of Mr McCarty was one piece of circumstantial evidence that corroborated the evidence given by Mr Hawker. The other circumstantial evidence was the evidence of Mr Higham including the video footage taken by him on his mobile phone on 11 December 2019, and Mr Nice's evidence about what the business records of his company revealed when the ground disturbing work commenced on exploration licence 396.
The only basis upon which Mr Owen put to the Warden that this evidence should be rejected was that the evidence of these witnesses and the documents tendered by Mr Sandhu were fabricated, a proposition for which Mr Owen produced no cogent or credible evidence.
In circumstances where there was a considerable body of additional evidence that was consistent with what the satellite image showed on 25 November 2019 on exploration licence 396, which image showed two costeans on exploration licence 396, it cannot be found that it was not open as a matter of law for the Warden to accept the evidence of Mr McCarty.
It must necessarily follow at law that it was not legally unreasonable for the Warden to accept Mr McCarty's evidence.
For these reasons, Mr Owen has failed to establish ground 5.
7.0 Other matters raised by Mr Owen
During oral submissions, Mr Owen raised several points that are not encompassed by the grounds of review, nor were the subject of submissions before the Warden. It is not necessary to deal with all of the matters raised by Mr Owen for the purposes of disposing of the application for judicial review as it is clear that the matters he raised do not relate to the grounds of review. In addition, some of the matters related to events which had occurred in 2017, which was outside the period of allowable expenditure for any of the tenements.
One of the issues Mr Owen sought to raise was that the Warden erred in not drawing a Jones v Dunkel inference against Mr Sandhu, because Mr Sandhu was not called to give evidence that he had given authority to Mr Hawker or Gold Tiger Resources or Gold Tiger Holdings to undertake any activities on the tenements.[119]
[119] ts 62 ‑ 63 and 88 (17 April 23).
First, even if this submission could be found to be raised by any of the grounds of review, it could not succeed. It was not a point raised before the Warden. Mr Sandhu did not give evidence in the application for forfeiture. This is because prior to the commencement of the hearing of evidence in the application for forfeiture, the Warden made an order excusing Mr Sandhu from attending the substantive hearing, subject to him being able to provide instructions to his solicitors.[120]
[120] Orders made by the Mining Warden on 24 June 2021.
Second, not only is this submission not open to be made as it is not raised in any of the grounds of review, but the Jones v Dunkel submission that was put by counsel for Mr Owen in final submissions before the Warden, did not relate to this point but instead was a submission that related to the reliance of Mr Sandhu on invoices for work carried out by persons who were not called as witnesses, such as invoices for the purchase of fuel, and invoices rendered by Gulnair and Air Sampling.[121] However, this is not a point raised in any of the grounds of the application for judicial review.
[121] ts 546 ‑ 547 and 559 ‑ 560 (16 July 2021).
8.0 Conclusion and the orders that should be made
For these reasons, an order should be made that the application for judicial review should be dismissed.
Although it is clear that costs should follow the event, I will hear the parties further as to the orders for costs that should be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SO
Associate to the Judge
29 MAY 2023
13
3
0