Pancontinental Gold Mining Areas Pty Ltd v The Minister for Mines

[1989] HCATrans 249

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pl8 of 1989

B e t w e e n -

PANCONTINENTAL GOLD MINING

AREAS PTY LTD

Applicant

and

THE MINISTER FOR MINES

Respondent

Application for special

leave to appeal

DEANE J
TOOHEY J

McHUGH J

Pancontinental

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 24 OCTOBER 1989, AT 3.00 PM

Copyright in the High Court of Australia

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MR C.L. ZELESTIS, QC:  May it please Your Honours, with my

learned friend, MR P.D. BLAXELL, I appear for the

applicant. (instructed by Robinson Cox)

MR K.H. PARKER, QC, Solicitor-General for Western Australia

If it please the Court, I appear with my learned

friend, MR J. MACTAGGERT, for the respondent.

(instructed by the Crown Solicitor for Western

Australia)

DEANE J: Yes, Mr zelestis.

MR ZELESTIC:	May it please the Court, Your Honours, this application arises out of the applicant's attempt
to extend the term of a prospecting licence pursuant to section 45(3) of the MINING ACT of 1978 in
Western Australia. That section provided that an
existing prospecting licence could be extended by
the Minister, or his delegate, if an appropriate
application was lodged within the existing term of
the prospecting licence with, and I quote, "the
mining registrar".

The applicant lodged an appropriate application

with the Director of the Mining Registration division

of the Mines Department in Perth, and it has been

held in the courts below that that was not compliance
with section 45(3), as a result of which the term of

the prospecting licence expired. In our respectful

submission, special leave to appeal should be

granted because this matter raises questions of law

of public importance, both as to the construction of

the MINING ACT and as to the construction of statutes

generally, and we respectfully submit to the Court

that the MINING ACT is of particular importance

both in this State and because of the fact that it

regulates the important mining industry in Australia.

And, that extremely valuable rights can depend upon

the way in which the Act operates and the way in which it is administered and thus depend upon the outcome of

the questions of construction raised by this

application.

TOOHEY J:	You are casting a net fairly broadly when you say
that, Mr Zelestis, but in the end, does it come down
to a fairly narrow question of construction as to the
meaning of "mining registrar", or "the mining registrar",
or does it have wider implications?

MR ZELESTIC:  That is the central issue, Your Honour. The

question of construction is as to the meaning of

the definition of "the mining registrar". But, even

though that may, when viewed alone, be seen to be

a narrow point, it has very broad implications for

if the contention of the applicant is upheld, then the

Act operates in a rather different way from that which

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it has been thought to operate in. Indeed, it

was that reason which led at least two of the

justices in the supreme court to hold against us.

So, while at one level it seemed to be a narrow

point, it does have, in our respectful submission,

a very big impact on the way in which the Act

operates. Put shortly, the question is whether a variety of matters can be done under the Act only

in the field, as it were, at the office of the

particular local mining registrar, or also, at the

office of the Director in Perth. Having said that,

I should qualify it a little, because there is an

assumption which underlies the Full Court's reasoning

which is not correct, and that is that every mining

registrar of a particular field is in his field, in

other words, is located in his field.	That .is not an
assumption that is good, at all.	The Act, while it

provides for the creation of districts, mineral fields or districts, does not specifically provide for mining

registrars to be assigned to them, nor does it provide

for where mining registrars are to be located.

The questions of construction of the MINING ACT, Your Honours, are principally whether in the definition

of the expression, "the mining registrar" in
section 8(1) , the expression "mining registrar" bears

its defined meaning, and if we are wrong in our

submission on that, another question arises, and that

is as to the proper construction of section 142(2),

a provision designed to provide some relief from

non-compliance with the Act. The questions of

construction there are whether the failure to lodge an application to extend the term is an informality of proceedings which does not vitiate the proceedings.

Section 142(2) was considered by this Court in

HUNTER RESOURCES V MELVILLE in 1988, but the

subsection as it was there considered was considered

in its unamended form. The subsection had been

amended but, with respect, that appears to have been

overlooked, and the construction was affected, in

our respectful submission, by the amendments which

were made. In our respectful submission there now

exists a doubt as to what that subsection means, and

it is appropriate that that doubt be resolved.

The question of the statutory construction

which, we respectfully submit, arises, is this: it is

whether, when a statute provides definitions unless

the contrary intention appears, you must find the
contrary intention, if at all, in the particular
provision in which the defined expression is used, or
whether you are entitled to go on a broader hunt

through the Act to try and discern an intention not to

use a particular expression in a particular place

in the defined sense.

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Now, although we say that is a question of

construction of general importance which arises in
this case, we also say that success for the
applicant is not dependent upon success on that

issue because even if one is entitled to go on a

broader hunt through the Act to see if a contrary

intention appears elsewhere which affects a particular

provision, we say that no such contrary intention
emerges in this case. But, for the proposition that
one must find a contrary intention, if at all, in
the particular provision in which the defined
expression is used, and i;.,e rely upon the decision of

Mr Justice Burt, as His Honour then was, in

DUPEROUZEL V CAMERON, where His Honour expressed

that view, and it was a view that was followed by Mr Justice Forster in SIMPSON V NOMINAL DEFENDANT

in 1976.

In the present case, in the Full Court,

Mr Justice Seaman doubted whether Mr Justice Burt's

proposition was of general application, and the

other justices in the Full Court simply failed to

apply it and thtB by implication, we would say,

rejected it. I should add that the main ground

upon which the application is now based, and the

main ground of appeal before the Full Court was

not a point taken at first instance before

His Honour the Chief Justice, and was therefore not

dealt with in His Honour's reasons.

Your Honour, we would begin our argument in

relation to the proper construction of the expression

"the mining registrar" in section 8(1) by noting

that by section 6 of the INTERPRETATION ACT, the

definitions in an Act apply to the definition

provisions themselves, as well as to the substantive

enactments in an Act. Now, section 8(1), of course

contains definitions of both "mining registrar" and

"the mining registrar" and in 1985 by Act 100 of 1985, a

very large number of amendments were made to the

MINING ACT, including to the definition of "mining

registrar", but there was no amendment to the definition
of "the mining registrar".	The definition of "mining

registrar" which is on page 5 of the yellow-backed

reprint was amended so as to introduce the words

beginning "and includes".	So the definition as previously
simply said that :

"mining registrar" means a mining registrar

appointed in accordance with this Act or

deemed so to be -

and what was added was:

and includes a reference to the person holding,
acting in, or performing the functions of the
office of Director, Mining Registration Division,

of the Department.

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The definition as it originally stood, was

important because it sought to pick up persons who

might not ordinarily be thought to be mining
registrars, namely those who were deemed so to be.

Your Honours, a "mining registrar" under this Act

is appointed pursuant to section 11, which simply

provides that:

There shall be a Department of the

Public Service -

et cetera, and for the appointment of various officers

including "mining registrars". While at section 11,

it is convenient to mention section 16, which is the

provision by which mineral fields are proclaimed.

The important provision is 16(2) because the

mineral fields which exist are those picked up from

prior enactments by section 16(2).

DEANE J:  But do you not really need to concentrate on the

relationship between the definitions if you are,

going to get anywhere on this point?

MR ZELESTIS: Yes, I do Your Honour. Yes, Your Honour, but I

wish to explain why the definition of "mining registrar"

was there in the first place to show the importance of

that being picked up by the definition of "the mining

registrar".

DEANE J:  But is the submission in effect, that by inter-reading

"the mining registrar" means any mining registrar, or

the other officer, and "the warden" means any warden?

MR l ELESTIS:  With respect, not quite, Your Honour, the

submission is that "the mining registrar" - the

~efinition of that, which in terms says:

means ..... the mining registrar of the mineral field
or discrict thereof in which the subject matter in relation to which the term is

used arose or is;

picks up, as it were, the words "mining registrar"

in their defined sense, so that it means the mining

registrar of a particular field, and it includes a

reference to the Director. He is not a mining

registrar as such; the definition of "mining registrar"

does not make him, in terms, an appointed mining

registrar under section 11, nor a deemed one under

clause 11 of the second schedule transitional provisions

which provides that persons who were mining registrars

under former legislation are deemed to continue.

So the directum - - -

McHUGH J:	But if you read the definition of "mining registrar"
definition of "the mining registrar 11 nonsensical, into "the mining registrar" it really makes the
does it not?

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MR ZELESTIS:  With respect, it does not, Your Honour.

McHUGH J: Well, it would read, "The mining registrar" means:

a mining registrar appointed in accordance

with this Act or deemed so to be and
includes a reference to the person holding .....

the office of Director -

et cetera, and "the warden" or "mining registrar":

of the mineral field or district thereof

in which the subject matter in relation to

which the term is used arose or is.

MR ZELESTIS: Well, Your Honour, we would say two things about

that. In the first place, we would make the

submission relying upon the decision of the English

Vice Chancellor in NO 20 CANNON ST V SINGER,

(1974) Ch, that in order to find the definitions

picked up one does not have to find that the

words can be intertwined in a sound grammatical

way. It is the idea which is relevant.

McHUGH J:	I appreciate that, but that means that you have got
to practically excise from the definition of "the
mining registrar" the words "of the mineral field
or district thereof",does it not?

MR ZELESTIS: With respect, no, because the meaning is that the

mining registrar of a mineral field is the person who

is assigned outside the statute to that field, but it

includes a reference to the director in Perth.	So
that, if you like, the Act has an octupus-like
structure.

McHUGH J: No, you have got to do more than that. That means

you have got to ignore part of the definition of

"mining registrar" then. On your hypothesis you have

got to ignore that part of the definition of "mining

registrar" which talks about him being "appointed in

accordance with this Act or deemed so to be".

MR ZELESTIS:  With respect, no, because the definition of "the

mining registrar", I was speaking about one mining

registrar, so it is one such person as defined in

"mining registrar", that is one appointed under the

Act or deemed so to be. So one of those persons is

appointed or deemed so to be and assigned to a

district. Then the label "the mining registrar"

means him and includes a reference to the Director

in Perth.

TOOHEY J:	What puzzles me, Mr Zelestis, is that presumably the
words "warden" or "mining registrar" do not appear in the Act except prefaced by the article definite or indefinite; are there examples of "a" mining registrar

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or "a" warden appearing, as opposed to "the"

mining registrar or "the" warden?

MR ZELESTIS:  Yes, there are, Your Honour. One of our

submissions that we made and would seek to repeat

is that there are very few things that "a" mining

registrar can do, and one of our submissions was

that if one looked more broadly - if one was entitled

to look more broadly for a contrary intention, one

would not find it because one would say that the

intention of Parliament cannot have been, by amending

the definition of "mining registrar" simply to give the Director the power to do these other very minor things. If I can take Your Honours to what they are.

The first one, Your Honours, is in section 20(1)

which confers a power to grant a miner's right.

That is something that can be done by "a" mining

registrar. Now, the odd thing about that, Your Honours,

is that that indeed is the only substantive thing that

can be done by "a" mining registrar. The odd thing

about that is that the 1985 amendments also

incorporated amendments to section 20(1). The

Under Secretary for Mines was deleted and was

replaced by the Director-General of Mines: One.would

have thought, with respect, that had the intention

been simply . to add another person in the

Department at Perth who could issue a miner's right,

his name would have been slipped in there, rather than
in the definition of mining registrar.

A power that a mining registrar has which His Honour Mr Justice Seaman relied on is also, of

course, to be found in section 142(2). But,

Your Honours, as to that, we would say that on

His Honour's construction of the Act, the Director

is Perth would never be seized of a proceeding in

which he could exercise this power, because if you

did not read him along with "the" mining registrar

he would never be involved in any proceedings and

it was a power that would not be of any utility.

The other power His Honour Mr Justice Seaman relied

upon was that to take affidavits in section 144.

Once again, after the comment - well, it is a strange

way to confer on a particular departmental officer

power to take an affidavit by amending a definition

of mining registrar, rather than putting his name in

at this point.

Your Honours, there are some other provisions,

and it might be useful if I was to hand up copies of

the document which we produced to the Full Court called,

Mining Act analysis, in which, under the headings,

"Mining Registrar", "The Mining Registrar" and other

similar expressions, we have collected the various

sections of the Act which use them. But, Your Honour,

the point remains that the only substantial thing

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tmt "a" mining registrar can do is grant a miner's

right under section 20. So, we say, Your Honours,

that it is important to note that the definition of

"mining registrar" does not simply say "means a

mining registrar a:id the director". It says:

Includes a reference to the person

holding ..... the office.

At first sight one might think that is a cumbersome

way of saying "the Director", but we say that aids

our primary submission which is that the definition

of "the mining registrar" uses the words "mining

registrar" in the defined sense, because what the

Act is seeking to do is to distinguish between the mining registrars of particular fields or districts, but in relation to each you include a reference to the Director in Perth so that things which can be done at the office of the mining registrar in a particular field can also be done at the office of

the Director in Perth.

We point out, Your Honours, that, of course

prior to the amendment in 1985 no contrary intention

would have appeared. The definition of "the mining

registrar" would, we respectfully submit, have

unarguably picked up the definition of "mining

registrar". The question really is whether the

amendment that was made changed that position. And

as I have endeavoured to submit, we point to the

particular words used to achieve the amendment as

showing that there is no intention to change the position.

I emphasise that it does not mean that the Director

is a mining registrar: nothing requires him to be

appointed as such or to be a person who is already

deemed as such. He is just included in the description.

DEANE J:  So, how do you read the definition of "the mining

registrar" in so far as it applies to the	Director.
In other words, would you spell it out?	"The
mining registrar" means - - -

MR ZELESTIS:  The mining registrar of the mineral field or

district thereof, et cetera, and includes a

reference to the Director.

DEANE J:  But you have got to carry on,"includes a reference

to the Director of the mineral field or district

thereof in which the subject matter - - -"

MR ZELESTIS:  No, I am sorry, I shortened it and lost the

meaning:

The mining registrar of the mineral

field or district thereof in which the

subject matter in relation to which the

term is used arose or is -

and includes the Director.

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DEANE J:  But you cannot do that, I mean, if you are

substituting the definition for the mining

registrar, you have got to read, "The mining

registrar means and includes the Director,

Mining Registration Division of the Department

of the mineral field or district thereof in which

the subject matter in relation to which the term

is used arose".

MR ZELESTIS:  That is, with respect, the point I understood

Mr Justice McHugh to be making earlier in the point that we answer by reliance on the English

case by saying that one does not have to read the

provision in literally where mining registrar appears,

one adopts the idea.	The mining registrar is a
mining registrar appointed or deemed to be.	"The"

mining registrar is that person in the mineral field.

The reference to the mining registrar also includes the Director, Mining Registration Division of the

Department.

With respect, the principles of statutory

construction do not require one to read in the whole

of the definition where the defined words appear.

DEANE J:  But what if one reads the whole purpose of the

definition as tying the relevant mining registrar to

the field?

MR ZELESTIS:  We say that, Your Honour, is not inconsistent with

the inclusion of the Director, so as to manifest a

contrary intention. It is merely inconsistent with

allowing another mining registrar in another field

to do what can be done by one. It merely distinguishes

mining registrars in their districts. It says nothing

about whether each of them includes a reference to the

Director.

McHUGH J: Well, it really means that you only take over part

of the definition of "mining registrar" does it not?

MR ZELESTIS: With respect, no, because you take over the first

part because the mining registrar in the field is a

person appointed in accordance with the Act or

deemed so to be; so you pick up that part of it

and he is a· person who is in the field, and it also

includes a reference to the Director, and once again,

at the risk of being repetitive, I would say that the

words are important. He is not made a mining registrar -

the Director - the term includes a reference to him,

so that when the Act speaks of lodging a document with

the mining registrar, it means you lodge it with the

mining registrar in the field; it also includes a

reference to the Director, you can lodge it with the

Director.

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McHUGH J:	What would you say the position would have been if the definition of "mining registrar"
had been of "a" mining registrar. Would you
have an argument then?
MR ZELESTIS:	No, because the label attached "a mining

registrar" is not picked up in the definition of

"the mining registrar". Those words would not then

be used so you, with respect, could not make the

submission.

TOOHEY J: But you run into a real difficulty do you not,

Mr Zelestis, when you have two definitions or two

expressions "mining registrar" which is couched	in the broadest terms to mean 11 a mining registrar"
for which I suppose you could substitute any mining registrar, and including the Director, and
then you have the much tighter definition
in "the mining registrar", meaning the mining registrar of the mineral field or district in which the subject-matter arose; and you are really asking the Court to borrow, or to merge the two
definitions for a particular purpose.

MR ZELESTIS:  With respect, no, Your Honour. We are saying

that it is not so much that the definition is being

merged, we say that there is an evident purpose for
defining "mining registrar", because the draftsman

wanted to overcome the difficulty that not all of the

people who·were going to work as mining registrars
would be appointed under the Act, some were appointed

under a prior Act and obviously it was not intended

to reappoint them; so there is a deeming provision

in clause 11 of the second schedule. Now, in order

to make it clear that the words "mining registrar"

in the Act apply to such a person, you define

"mining registrar", then you built upon that block

when you come to "the mining registrar". "The mining

registrar" is a person who, as I say, outside the

statute, is assigned to work in relation to a particular

field, although not necessarily having his office

located in that field.

TOOHEY J: Well then, all you do, or need to do, is to define

"the mining registrar" to mean the mining registrar
of the mineral field or district, and to include
a reference to the person holding the office of

Director, which is what the definition of "mining

registrar" has done.

MR ZELESTIS: In effect, that is what we are submitting, although

Your Honour's formulation did not .take account of the

deemed persons.

DEANE J:  But that really highlights the question in the first

aspect of the case, does it not, and that is whether

one reads "mining registrar" as, in effect a definition

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of "a" mining registrar in contrast with "the"

mining registrar as being a definition of

something different?

MR ZELESTIS:  With respect, Your Honour, we would say you cannot

do that because -

DEANE J: Well, I appreciate you say we cannot do that, but I

was just trying to identify the question.

MR ZELESTIS:  Yes, the reason you say you cannot do it is that

the Act does not define "a" mining registrar, and
after all, the words used are only labels; they

could have put "x" or anything there; it is just

a label that picks up the meaning, especially when

it is defined by use of the word "means", which

gives it to that extent an exclusive meaning.

DEANE J: It is a little bit like saying, if you have a

definition of building, including any structure, and

a definition of "the" building as meaning "the

building housing x", you read the expanded

definition of "building" into the other - - -

MR ZELESTIS:	Yes, Your Honour, can I go - - -
DEANE J:	- even though it appears that the precise definition

was an identified structure.

MR ZELESTIS:  Can I go back to the point I earlier made that,

if one looks at the position prior to the 1985

amendment, we would say, with respect, that there

could be no doubt that the definition of "the

mining registrar" in so far as it used the words "mining

registrar" did so in their defined sense, thereby

ensuring that somebody who was deemed to be appointed

and was sent out to look after a regional office,

was the mining registrar of the field, and nobody

could say, "Well, he is not, because he is not appointed

under the Act". Nothing changed in the definition of

"the mining registrar" in 1985. What changed was

the definition of "mining registrar".	On our primary
submission one has to find the contrary intention in

the definition of "the mining registrar" because it

is there that the words "mining registrar" are used,

so there must be some logical inconsistency between

the definition of "mining registrar" and that of

"the mining registrar" to manifest the contrary

intention.

Our primary submission is that, properly

understood, particularly taking account of the words,

"includes a reference to" there is no inconsistency;

all that the definition of "the mining registrar" is

doing is distinguishing between mining registrars

of particular fields, and it is not saying anything
about another person who is not an appointed mining

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registrar, but who, when the words are used

is included in their meaning. But, if we are

wrong in the submission that you must find the

contrary intention in the provision where the
defined expression is used, we say that a broader

consideration of the Act and the regulations

provides support for our argument, rather than

opposition to it, as indeed the Full Court thought it

did.

There were a number of amendments made, and

obviously in a special leave application I do not

wish to take the Court to all of them. They are

collected in the outline of argument. Many of them
replaced "the warden" with "mining registrar" - I am
sorry, I put that inaccurately - replaced "warden"

with "mining registrar" in a context where the

word "the" was already in place, so that duties

which were cast upon the warden formerly fell now

upon the mining registrar, and, with respect, it is

not possible, we say, to discern in the 1985

amendments any particular policy for putting the

Director in the definition of mining registrar unless it is the result for which we content.

If it was to confer on that officer power to do the

things, such as giving a miner's right, taking an

affidavit, one would have expected that to be

achieved directly, with the relevant section.

Now, Their Honours in the Full Court relied upon

within their region - "Prospectors operate within their region", His Honour said, the idea being that you search particular ground at the local office.

a perceived practice of the mining industry, as

That involves an assumption that the mining registrar

of the district will be in or nearby the district.

That is not an assumption that is good. The statute

does not require it, and as the Full Court was told

and was shown a map with all the gazetted areas on it -

in practice it is not so.	The mining registrar who
was in Perth is the mining registrar for the most

distant field in Warburton and, indeed, in this very

case, the application concerned the Broad Arrow Field,

the southern-most boundary of which is some distance

from Kalgoorlie where the relevant mining registrar

actually had his office. But what is important is that

the statute does not compel the conclusion that the

mining registrar of a particular field shall have his

office in the field.

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DEANE J:	Does it require that there be a particular mining
registrar assigned to a particular field?

MR ZELESTIS: No, it does not, Your Honour. All that

section 16 does is provide for the creation of

fields. As I say, in fact, no fields have been

created under the Act; the fields which exist are
picked up by section 16(2) as the fields created

under previous Acts going back to the last century.

So, the relationship between a mining registrar and

his mineral field comes about outside the statute by

some administrative Act. Your Honour, the regulation

which Mr Justice Brinsden sought to draw support from,

in fact, in our respectful submission, support the

applicant's case because, when one tries to find out

information about a tenement, one is searching a

register which is maintained pursuant to regulation 106.

One must bear in mind, here, that these

regulations preceded the 1985 amendments and the
regulations to which I will make reference have
not been amended in consequence of the 1985

amendments to the Act. The second thing one should

bear in mind also, is that by section 44 of the

INTERPRETATION ACT, definitions in an Act apply to

subordinate legislation made under the Act. Here

there is the slight oddity that the regulation,

when using the expression "mining registrar",

do so with a capital Mand a capital Rand I suppose

there might be a nice question whether that manifests

an intention not to use the expression in its

defined sense.

But, putting that to one side for a moment, one

sees that prior to the 1985 amendment, regulation 106(1)

required:

There shall be kept at the Department at Perth and at the office of the Mining Registrar a

register wherein shall be recorded -

the following information. Now, we say that, leaving

aside the capitals question, that is a fairly clear

indication that the intention is to use "the

mining registrar" in the defined sense: namely, the

mining registrar in the particular mineral field or

district, the idea being that there will be a

separate register for each mineral field or district

kept both at Perth and at the office of the mining

registrar for that field or district. Then under

regulation 106(2), what is searched is that register.

One is entitled, upon payment of the fee, to get a

copy of it and you can do that at Perth or at the

office of the mining registrar.

McHUGH J: How does this fit in with, say, section 40(4) of the

Act?

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Where on an application for a prospecting

licence -

(a) the applicant satisfies the mining

registrar -

and -

(b) no notice of objection is lodged at the

office of the mining registrar within the

prescribed time.

Now, on your theory of the Act, the director could

deal with this whole matter.- be satisfied.	Has it
got to be lodged at his office? What if an

objection is lodged at the office of the mining

registrar of the mineral field? What happens then?

MR ZELESTIS: Well, we say that you can lodge an objection at

either office. Your Honour, can I come back to

section 40 and section 41 because there is another
point I wish to make about those but I would prefer

to finish the point, if I could, about regulation 110

and I will return to that innnediately. In relation

to dealings it is also important to note that under

regulation 110:

all dealings affecting a mining tenement

shall be lodged ..... at the office of the

Mining Registrar or the Department at Perth.

So, there are two places where you can lodge a

dealing for a tenement.

TOOHEY J: Where do you find that?

MR ZELESTIS: Regulation 110(1). And, importantly, the actual

act of registration by regulation 110(2) is:
effected at the Department at Perth.

So, to some extent what I have described as the "octopus-like structure11 is set up in the regulations.

You have a register; it is kept both at Perth and

in the mining registrar's office for a particular

field; you can lodge your dealings at both places;

the actual act of registration takes place in

Perth and it is, no doubt, then reflected on both

registers and you can search both registers.

Now, Your Honours, there are five kinds of

mining tenements created by this Act: Prospecting
Licence;_ Exploration Licence;_ Mining Lease;

General Purpose Lease; and a Miscellaneous Licence.

In relation to each of them what the Act does is

provide that, in the first instance, the application

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for the mining tenement has to be lodged and, if

one picks up the first example, it is section 4l(l)(e)

on page 30:

shall be lodged with the mining registrar of

the mineral field or the district thereof wherein the land to which the application

relates is.

So, you see the words. which have been put in the

definition of "the mining registrar" in section 8 (1)

spelled out again but in the very same section you

see references to the mining registrar alone. For

example, section 41(3). Now, that same pattern of

providing for the initial application to be made "with

the mining registrar of the mineral field or the

district", et cetera - setting out those words again -

applies in relation to each other kind of tenement,
expressly in three cases and, in the last two

instances, by adopting earlier provisions of the Act

and making them apply to such tenements.

What the Act appears to be providing is - sorry,

I should also say that in relation to an attempt to

restore a forfeited tenement, under section 97A, a

similar structure is provided. Section 97A(3)(b) on

page 63, requires that the application to cancel the

forfeiture has to:

be lodged with the mining registrar of the

mineral field or the district thereof wherein

the land to which the application relates is

situated.

So, what the Act is doing, in our respectful

submission, is providing that the substantive

applications for mining tenements or to avoid a

forfeiture have to lodged only in one place.

Contrary intention is there manifested. It is a

contrary intention - an intention contrary to the

definition of "the mining registrar". The application

having been made; it gets on the register; the

register is kept at two places in relation to each

mineral field or district; and, thereafter, you can

deal at either office - either the office of the

director in Perth or the office of the mining

registrar for the field wherever that happens to be.

In our respectful submission, the primary

submission we make finds support both in the
regulations and in the Act and it is almost as if
the Act has been brought into line with the system
set up under the regulations as the way in which the

Act should operate. We say that it is almost as if,

really, Parliament has realized that the Act did not

quite fit that framework and has made it fit it by

this amendment. So, we respectfully submit that

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Their Honours in the Full Court, in endeavouring to

draw support for their rejection of our submission by

reference to the perceived practice as to which there

was really no evidence and as to the way in which the

regulations operated, erred because, indeed, both
the remainder of the Act and the regulations

facilitate what I have described as this octopus-like

structure where, in relation to each mineral field

or district, after the substantive application,

transactions can be effected at the office either of

the particular mining registrar or the director in

Perth.

Your Honours, if we are wrong in that then a

question would arise under section 142(2). Now,

the amendment which was made to this provision in

1985 was that the words "under this Act" in the

first line were inserted in place of "in a warden's

court", and then, in the second line, the words

"a mining registrar" and "a warden" respectively

replaced "the warden's court has power". Now, what

is irmnediately apparent is that section 142(2) as it

originally stood referred to proceedings in a

warden's court whereas now it refers to proceedings

under this Act - we would respectfully submit, a

much broader connotation.

Now, in a Full Court decision in Western

Australia it has been held that, in relation to

section 116(2), that defective pegging was an:

irregularity in the application or in the

proceedings previous to the grant.

That is the decision in CROCKER V WILLE to which we

have referred in the outline of argument. We say

that that provides support for our argument that

lodging an application for an extension of a

prospecting licence is a proceeding under the Act

and, indeed, we would say that on ordinary

understanding of the expression "proceedings under

the Act", .lodging an application would be such a

proceeding; it does not require something that is to

be determined in a court.

The question then is: if we are right there,

whether lodging it with the wrong officer - assuming

we are wrong on our first ground - was an informality.

McHUGH J: No, it is a question of whether it is lodged under

the Act, is it not? If the Act says that it has

got to be lodged with "the mining registrar"

meaning the registrar on the field and you go and

lodge it with the man down the street or the

director, it is not proceeding under the Act, is it?

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MR ZELESTIS: Well, we say it is still a proceeding and we

say it for this reason, Your Honour, that it is not

quite like the example given by the Chief Justice

and Your Honour Mr Justice McHugh, lodging it with

the man next door or the post office. It is

lodging it with an officer who, we respectfully

submit, may be inferred to be the superior officer

of all the mining registrars. One must bear in mind

the purpose of lodging an application under

section 45(3): it is to bring it before the

Minister or his delegate in whom resides the power

to grant the application or not. The mining

registrar was not actually going to decide anything

on the application.	He is a conduit to the Minister
or his delegate.

Now, in this case, if we are wrong in our first

submission and the definition of "the mining

registrar" does not include the director, nevertheless,

we say lodging it with the director who may be

inferred to be the superior officer of all the

mining registrars, because he is the director of

the mining registration division and who is a

person fit to pass it on to the Minister, does not

vitiate the proceedings because it is still a

proceeding. It is still lodged with a senior officer

of the department and it is an informality. We say

that the word "informality" in this context must

bear a broad meaning. This is an enabling, a

facilitating provision designed to avoid strict

adherence to technicalities. In this case, we did

not lodge it with some completely irrelevant person:

we lodged it with the person, we say, may be inferred

to be the superior to the mining registrars.

We also make the submission that it is not

necessary for section 142(2) to operate. That the
informality be one requiring amendment We submit
that the power to amend all defects and errors is

a power which may or may not be required to be

exercisedin the given case.	What subsection (2)
is saying is that:·

No proceedings shall be dismissed or vitiated

by any informality.

McHUGH J:  But do you not come back to the same problem

again because of subsection (5) which refers to

"the mining registrar" and tend to indicate that

subsection (2) is referring to "the mining

registrar" or "the warden"?

MR ZELESTIS: Sorry, Your Honour is referring to section 142(2)?
McHUGH J: No, subsection (5). The (2) says:

No proceedings shall be dismissed ..... but a mining registrar -

shall -

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have power at any time to amend -

and subsection (5) says:

Any amendments referred to in subsection (2)
may be allowed upon such terms ..... as the

mining registrar ..... determines.

MR ZELESTIS:  We say, in our case, that we do not need to

resort to the power to amend: that there has

simply been an informality which the Act says does

not vitiate the proceedings. Now, nothing in

subsection (5), in our respectful submission,

alters that proposition.

TOOHEY J: Except it tends to point out the sort of informalities,

perhaps, that the section is aimed at. Admittedly it

may well be that they do not have to be cured by
amendment but subsection (5) is certainly structured
on the basis that the amendments are such as may be

cured by the amendment.

MR ZELESTIS:  Certainly, there is an enabling power. We would

also point to subsection (1) which deals with what

may be thought to be a fairly broad category of

informality. It deals with it specifically thereby

implying that "informality", as it is used in

subsection (2), has a broader connotation. It is

more than getting the name of something wrong. It

is making some other kind of error. In the end it is

just a question of fact in the given case: whether

what was done was a proceeding and an informality in

the proceeding and we say, that in this case, one
can say as a matter of fact, since it was not lodged

at the post office or the hotel in Kalgoorlie - it

was lodged with the superior person who may be

inferred to be the superior officer of the mining

registrar - that it is an informality in proceedings.

TOOHEY J: But that is a dangerous argument, is it not? Because

to assert it to be purely a question of fact, it is

not likely to advance a special leave - - -

MR ZELESTIS:  No, it involves a threshold question of

construction but at the end of the day, on the
facts of this case, one does not have to answer the
question about the post office or the hotel or the

building next door, is what I am endeavouring to

submit. Yes, and as my learned junior reminds me,

the document was also lodged at the place where

registration of transactions actually occurs. So,

it is not a wholly irrelevant place, as mentioned in

the examples which have been given. Those are our

submissions, Your Honours.

DEANE J: Yes, Mr Solicitor.

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MR PARKER:  If it please Your Honours, may I pass up an outline

of our submissions?

DEANE J: Yes, Mr Solicitor.

MR PARKER:  If it please Your Honours, submissions 1 to 4 seek

to just emphasize what, in our respectful submission,

is the limited practical significance of the point

that is being raised before Your Honours and, in fact,

as 4 indicates, the present practice is that

applications for the original grant of all licences

and leases and for their renewal is made with the

registrar or the warden of the relevant field.	In
one or two cases it is the warden rather than the

registrar that is the relevant provision in the Act

but the regulations provide that for an application

to the warden of the field that is instituted by

lodging it with the registrar of the field. So,

it produces the same result.

Now, to quite a substantial extent, that practice turns on the phrase in the question, "the

mining registrar", or "the warden", but the point

is	the decision that has been reached in
this case	is no novelty; it is what is in place

and what is operating without apparent difficulty

TOOHEY J:  But it may be that the practice is wrongly

determining the construction of the Act, or determining

it is based on the wrong construction of the Act.

That is the difficulty with offering practice as the

answer. If Mr Zelestis' submission is right, then

the practice is wrong, or is unduly restrictive. Is

that not the result?

MR PARKER:  The point I was making this far, if it please

Your Honour, is limited to the fact that this has

not produced a novelty, a surprise, or some result

that will be productive of great difficulty. The

decision below merely affirms and confers what has

been in place, and is in place, and working without
difficulty.	My real answer to Your Honour is,

perhaps, point S(a) of our submission and this is

the real core of the matter. In our respectful

submission, the difficulty with my learned friend's

submission is this, that he takes the definition

in section 8 (1) of the Act of "the warden" or "the
mining registrar" and he says, "When we come to the
words 'the mining registrar' you there pause: you go to

the definition of. 'mining registrar'; you pick it up

and bring it forward to the definition 'the mining

registrar' and then you carry on". But that is not

all that he says because if that is what he really

was suggesting all that follows in the definition

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of "the m1.n1.ng registrar" would qualify what was

brought from the definition of "mining registrar".

My learned friend's submission requires that when,

in the definition "the mining registrar", we come

to the words "the mining registrar" means "the

mining registrar" that you bring in there, firstly:

a mining registrar appointed in accordance

with this Act or deemed so to be -

but you do not carry on with the rest of the

definition of "mining registrar", you only bring

in that bit. You then carry on:

of the mineral field or district thereof

in which the subject matter in relation to

which the term is used arose or is -

and then you add in the balance of the definition

of "mining registrar", that is:

and includes a reference to the person ....

who is the -

Director, Mining Registration Division.

Because it is only by that spli4 divided interpolation

of the definition of "mining registrar" that my

learned friend can escape the words in the

definition "the mining registrar" that refer to the

registrar of the mineral field or district thereof. In

our respectful submission, that is, on any basis

of logic, a quite unjustifiable interpolation into
the definition of "the mining registrar" of the

definition of "mining registrar". It is certainly, in our submission, nothing that can be justified by

reference to the decision in NO. 20 CANNON ST to

which my learned friend referred.

In our submission, it is quite useful and

appropriate and productive of no harm when one comes

definition "mining registrar" if it is going to	to the words "mining registrar" to bring in the
help or if it is thought might be useful, but,
when one does so, one must take it all in and one
gets both "the mining registrars":

appointed in accordance with the Act or deemed

so to be -

and the -

Director, Mining Registration Division.

They are the people who are mining registrars by

virtue of the earlier definition and one must take

all of them. Then one goes on with the definition

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"the mining registrar" to see what this different

definition is doing and what it is doing is

identifying one of those who are mining registrars

and only one of them: that is, the mining

registrar who happens to be the registrar of the

mineral field or district in question. So that it

matters not, in our submission, whether one treats
the two definitions as entirely distinct or whether
one accepts that the definition of "mining registrar"

may be brought into the definition of "the

mining registrar". If one takes the latter course

properly, the result is that, having identified all
those who are mining registrars, the definition of

"the mining registrar" limits that class down to

one person only: the person who is the registrar

of the mineral field or district thereof that is in

question in the matter.

So that, in our submission, that is, in truth,

the beginning and end of this application because

it is only by an artificial and illogical process

of interpolation of the earlier definition that one
can possibly come to the position contended in
support of the applicant: that is, that one reads
the definition "the mining registrar" as being
that one of the registrars who are appointed under
the Act, or deemed to be, who is the registrar of
the mineral field, and then to add, "and includes

the registrar of the Division in Perth" without the

qualification that is contained in the definition.

TOOHEY J:  Mr Solicitor - and I am not suggesting that the

regulations can override the Act, but can you fit
that construction of the Act with regulations 106 and 110?

In particular, I suppose, regulation 110 - the

requirement to lodge:

all dealings affecting a mining tenement -

with the -

office of the Mining Registrar or the

Department at Perth.

MR PARKER:  The opening words of regulation subsection (1),

sir:

Unless otherwise provided inth.e Act - - -

TOOHEY J: Yes, I suppose we are back where we came in.

MR PARKER:  - - - is, in our submission, the complete answer

to that contention, when one is dealing with an

application such as this, because the Act does

require that this application, in our submission,

to be lodged with "the" mining registrar and is not

at large. In our respectful submission, if one does

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analyse the process of interpolation that is

contended, its fallacy is demonstrated and one is

left with the position, in our respectful submission,

that "mining registrar", however it is defined and

accepting with one will for the moment that it is

defined to include "the registrar of the division

in Perth", that merely means he is another of the

registrars. And, when one comes to the definition

of "the mining registrar", one finds that the
definition is directed to one only of all those who
are registrars. In our submission, for that reason,

without turning to questions of inconsistency or the

like, it is manifestly clear that the decision

reached below is correct and that the whole core

and foundation of the submissions advanced in
support of this application appear to founder in that

simple proposition.

It is true that the State is divided into fields

by virtue of section 16 of the Act - mineral fields.

It is true that there is no express provision of

the Act that then says, "There shall be allocated

to each field a registrar". But what is equally

true is that the Act makes manifestly clear that

there will be a registrar for each field.

(Continued on page 23)

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MR PARKER (continuing): That assumption, if you like, is

made clear in some provisions where there are express

words to that effect. For example, if one takes

section 58(1)(d), in respect of an exploration

licence, section 58(1)(d) requires lodgment with

the mining registrar of the mineral field. So

that, for that provision of the Act to work there

must be a registrar of each mineral field.

Similarly, as another example, section 74(1)(d),

dealing with applications for mining leases.	They
must be lodged with the mining registrar of the
mineral field.

So it is a necessary consequence of provisions

such as those that there must be a registrar for

each mineral field. And, of course, the very

definition that is in question, likewise, makes

clear that that is the intended operation of the

Act because it refers, again expressly, to the
registrar of the mineral field or district thereof.

DEANE J:  Mr Solicitor, is there a section in this Act

or a general section that covers what happens when

there is a vacancy in the office? I mean, what

if there is not a mining registrar for a particular

field?

MR PARKER:  I am sure there is, sir. I have not it at my

fingertips. I hope in the course of the next

few moments to have an answer.

TOOHEY J: There is certainly power to appoint an acting

warden; I do not know about an acting registrar.

MR PARKER:  There is a general INTERPRETATION ACT provision,

if we have it here, about people fulfilling the

functions of any office. I am not sure that we

have it here but if there is such a one I do not

know whether there is an express provision in the

Act. But where I was leading in this submission,

which started firstly with the proposition that

the Act depends upon, in at least the provisions

for each field, the Act there draws upon what was	to which I have referred, there being a registrar
the settled practice under this Act and under each
of the Acts that have preceded it, that there is
a registrar and a warden for each field and that
assumption is revealed clearly enough by the
provisions to which I have drawn attention.

It is true that it is not the case that in

every field the registrar is actually physically stationed in the field. That, of course, cannot

affect the validity of the view that it is the

scheme of the Act and a sensible and convenient
scheme that there is one registrar in whose office

searches may reliably be undertaken confident in

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the knowledge that all applications; et cetera,

and material dealings that will affect the existence

of tenements up to the moment of search will be

lodged in and available for inspection in that

office when the search is undertaken. The submissions

in support of the applicant, of course, involved
the practical result that somebody might search

either in the mining registrar's office of the field or in the director's office in Perth and

not be aware of some significant application for

dealing that has just been lodged in the other

of those two places.

In our respectful submission, the court below were well justified in the conclusions they reached

that that is a most telling factor against the contentions of my learned friend. But could I

simply add that the geographic location of registrars

in this State is something that reflects practical

convenience because many mineral fields in the

State have no major town within them.	The largest
have none at all.	So registrars may be located

in the nearest centre which serves the area, may

actually be outside the field but in the nearest

centre of any significance that serves the area

in question. Or, as in one or two of them, in

Perth for the want of a more practically convenient

location. It would, in our respectful submission,

not be a sensible position for the registrar to

establish himself in the middle of nowhere simply

because that is necessary to· achieve his physical

location in the field.

In our submission, it cannot be right as the submissions advanced in support of the application

would have it, to take the four matters of

significance which a mining registrar can do under

the Act and they are the granting of miners' rights

under section 20, the amendment of defects and

errors under section 142(2), administering or taking

of affidavits under section 144 and the certification

of entries under regulation 106(2). It cannot	be right to take those four matters and say of
the 1985 amendment, "Well, if it was merely desired to enable the registrar of the division in Perth to be able to do each of those four things as well
as mining registrars, that could have been achieved
by taking the provision regulating each one of
those matters and interpolating in it the registrar of the division in Perth or by some such device."

The four changes were achieved by the one

legislative amendment, that is by amending the

definition "mining registrar" in the way that was

achieved and the simple convenience of that

drafting approach being more than sufficient to

justify the result. And, in our submission, that

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process of amendment provides no valid basis for

suggesting that some greater and entirely new purpose

was intended, that is, of establishing for the

first time this dual register location so that

people might search either in Perth or in the district

registrar's office.

5(b) is an alternative submission that there

is inconsistency in the context of the Act in applying
the definition "mining registrar" to "the mining

registrar". Could I. for speed simply, with respect,

adopt what was said by His Honour the Chief Justice

in the original decision to be found at page 5,

para (e), of the papers and at pages 6 to 7, which

was said by Mr Justice Brinsden to be found at

page 37D and the preceding four pages and what

was said by Mr Justice Seaman at page 18D to E

of the page.

I have already sufficiently, I think, although

briefly, mentioned the matter of fundamental

difficulty that would result from the interpretation

contended in support of the application that there

would be two registers so that a search in any

one might not confidently reveal some new

application that had just been lodged in the other.

And, with respect to the legislative history dealt with in 5(d), may I again respectfully adopt what

fell from Mr Justice Brinsden between pages 33

and 37 and Mr Justice Seaman at page 46.

The other matters of any significance that

have been raised are this question of whether there -

dealt with in paragraph 6. In our respectful

submission the law is not in dispute and is not

productive of difficulty or uncertainty in these

matters. This Court has dealt with the matter

in the three cases that we have mentioned there,

and others, and there is no divergence or uncertainty.

The most - what arises here is the question of the

application of the principles that have been

considered in those cases to the particular provisions
here in question.	In our respectful submission,

that would not justify the granting of special

leave. In any event, in our submission, the process

has been undertaken correctly and we would respectfully

adopt what was said by Mr Justice Brinsden at

pages 39D to 40D and Mr Justice Seaman at page 50.

Paragraph 7 deals with the contention arising

under section 142 of the Act. In our respectful

submission, it is not correct to characterize as

an informality the process of lodging an application.

That is the foundation for what follows; it must,

in our submission, be in the nature of a precondition.

So that, if there has been no application lodged

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as required by the Act, 142 does not avail in the

situation.

For those briefly put reasons, we would

respectfully submit that there is nothing in this

matter that would justify the grant of special

leave.

DEANE J:	Thank you, Mr Solicitor.	Yes, Mr Zelestis.
MR ZELESTIS:	May it please Your Honours.	Can I first answer

a question Your Honour Mr Justice Toohey put to

my learned friend. The difficulty about an acting

mining registrar is overcome by section 49 of the

INTERPRETATION ACT which provides that:

Where a written law confers a power or

imposes a duty on the holder of a public office

as such, the power may be exercised ..... by

the person for the time being lawfully holding,

acting in, or performing the functions of

the office.

There is no specific power, as far as we are aware,

under the MINING ACT for the appointment of an

acting mining registrar but that covers it.

Can I deal briefly with two or three points raised by my learned friend. First, with respect,

it is wrong to submit that it would be our construction

or the acceptance of our case which would lead

to the creation of two registers.

Regulation 106 already provides, we say, in

relation to each mineral field for a register -

that is a single register - but it is to be kept

in two places, at Perth and at the office of the

mining registrar. That is simply what is already

there. That does not follow from our submission.

Our submission really brings the Act into harmony

with the regulations, as it were, because

regulation 106 says:  There shall be kept at the Department

at Perth and at the office of the Mining

Registrar a register wherein shall be

recorded -

et cetera. Now, plainly, although it does not

say so in terms, plainly, the register is to be

a register for that mineral field, the mineral

field to which the mining registrar is assigned.

And that is not a difficult idea to have, that

there is a single register but kept in two places

and can be searched in two places. But all dealings,

the registration of all dealings by regulation 110(2)

takes place in Perth.

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My learned friend pointed to the opening

words of regulation 110(1):

Unless otherwise provided in the Act

or these regulations -

If there was, formerly, such other provision it disappears upon our construction of the Act.

To answer the concern about priorities,

section 105A deals expressly with that and provides

that - summarizing it - priorities are, in effect,

determined except in the case of an exploration
licence at the time of marking out and in the case
of an exploration licence at the time of lodgment.
It is not difficult for a government department

to keep a date stamp, as many government departments

such as the titles office do, and stamp on it the

time and date on which an application is lodged.

And subsection (3) even goes further and says that

if two things are lodged at the same time then

there is a ballot conducted.

So the question of priorities is clearly dealt

with and there can be no difficulty - there is
no practical difficulty in maintaining a register in

two offices at different places and keeping a precise

record. The Act contemplates specifically that

things might be lodged even at one office at the

same time and deals with it.

Can I answer my learned friend's first point

which is what I would describe as the narrow

technical point about reading in the definition

of "mining registrar" into "the mining registrar".

In answer to a point put by Your Honour Justice Deane

I read in the definition of "mining registrar"

in two parts, some in the middle and some at the

end. My learned friend attacks that and says,

'"That de,nonstrates that you can't read it in."

But, with respect, you can read it in all in one

place. Of course, my submission is that how you

do it grarrmaticaUy does not matter but if one had	to do it 3rarrmatically you could read it in. What
is important is to begin by focusing upon the words
that I keep emphasizing and those are the words
"includes a reference to the person holding".

So looking at the definition of the "mining

registrar" it means the:·

mining registrar appointed in accordance

with this Act.7 ... and includes a reference

to the -

director of the field, et cetera. The words

"of the field" then describe the mining registrar.

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That would be the obgious intention of the

provision not the person who is included as being

referred to in the expression "mining registrar".

It might have been more difficult to read it that

way but for the words:

and includes a reference to the person -

et cetera. Because of the way in which that

definition has been drawn, with respect, one can
literally put it in in place of "mining registrar"
in the definition of "the mining registrar" and

extract without any grammatical difficulty the

meaning for which we contend.

My learned junior reminds me section 105A(2)

which deals with the priority position was introduced

by the 1985 - section 105A(3), at least, was introduced
by the amending Act of 1985. Those are our further

submissions.

DEANE J:  Thank you, Mr Zelestis. The Court is not persuaded

that the actual decision in the Full Court of the

Supreme Court of Western Australia in this matter

is attended by sufficient doubt to warrant the

grant of special leave to appeal. Accordingly,

special leave to appeal is refused.

MR PARKER:  I move, if it please the Court, for the costs.

DEANE J: Is there anything you can say about that?

MR ZELESTIS:  No.

DEANE J: Special leave to appeal is refused with costs.

AT 4.25 THE MATTER WAS ADJOURNED SINE DIE

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