Pard Holdings Pty Ltd v Goldfan Ltd

[1990] HCATrans 263

_.

~,,~USTRALIA,,~ -.,._,.)~.)>$~'---

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P27 of 1990

B e t w e e n -

PARD HOLDINGS PTY LTD

Applicant

and

GOLDFAN LTD

Respondent

Application for special

leave to appeal

MASON CJ

DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

Pard 1 25/10/90

AT PERTH ON THURSDAY, 25 OCTOBER 1990, AT 11.35 AM

Copyright in the High Court of Australia

MR C.J.L. PULLIN, QC:  May it please the Court, I appear

with my learned friend, MR G.J.B. PORTER, for the

applicant. (instructed by Macdonald Rudder)

MRS V.J. FRENCH:  May it please the Court, I appear for the

respondent. (instructed by Blake Dawson Waldron)

MASON CJ: Yes, Mr Pullin.

MR PULLIN:  Your Honours, in the Mining Act and Regulations

there is a provision dealing with the marking

requirements of a mining tenement and there is a

special provision relating to the miscellaneous

licence in this question, but the principles are
the same for all mining tenements, because another

provision which was dealt with in a previous case

in this Court, is to similar effect. There are

some slight differences, but not on the critical

point in this case. The marking out requirements

in relation to a tenement involved three steps:

the physical marking out - that is the driving in of pegs around the perimeter. I have said, "or a

cairn of stones". In fact that is not correct in

this particular regulation. Including a datum peg.

That is the first step; that is the physical act

that is carried out and then there are two kinds of
paper work: one is a map and the second is a
notice in accordance with form 20 to the
regulations and these two pieces of paper must be

put on to the datum post, because out in the field,

when somebody else goes out, they must be given the

information which tells them where another tenement

is located.

Now in Hunter Resources v Melville, the case

that came to this Court, a decision was reached in

relation to the physical marking out, that near

enough is not good enough, that there has to be

strict compliance with the regulations and

substantial compliance is not good enough.

We really now turn to the paperwork and the

argument has arisen again. We submit that in this

case what is being said by the Full Court is that

near enough is good enough. The position is in fact that on form 20 - and perhaps could I make

available three packages. Section 91 of the

Mining Act (1978) says that licences can be granted

for various purposes:

a road licence; a tramway licence;

et cetera. This is called, in general terms, a

miscellaneous licence and section 93, which I have

also copied says:

Pard 2 25/10/90

Before making an application for the grant of

a licence under section 91 the applicant shall
mark out in the prescribed manner the land in

respect of which the licence is sought.

Then one goes to regulation 37. Regulation 37

says:

A miscellaneous licence shall be marked out by

erecting substantial posts projecting not less

than 1 metre above the ground at each

extremity of the land in respect of which the
licence is sought; and by affixing a notice in

the form No 20 in the First Schedule and a map

as referred to in section 93(2) of the Act to

one of such posts to be known as the datum

post.

And then form 20, I have reproduced.	I have also
reproduced - - -

TOOHEY J: Before you leave regulation 37, Mr Pullin, I

suppose you could read it in one of two ways

grammatically. You could read the words "marked

out" as qualifying all that follows, or you could

read it as "marked out by erecting substantial

posts", "and by affixing". In other words as an

independent requirement.

MR PULLIN: Yes, we would submit that is must be read as

there being three elements to marking out. One

does not effectively mark out by just driving the

posts in, because the point of marking out is that

it is to identify the area of mine for other

prospecto~s who are out in the field and they must
be provided with the information in documentary

form, because there may be lots of pegs in a

particular area, many, many pegs, and so therefore

it is critical that one is able to identify what

piece of land is covered by the pegs that are said

to relate to that piece of land.

TOOHEY J: Well certainly there are some grammatical

difficulties in trying to read it in the second of

those two ways.

MR PULLIN: Yes. Now I have reproduced also regulation 59.

I think 59 appears there, Your Honours. That was

the regulation under consideration in Hunter

Resources v Melville and it is important because if

one looks at (c), it is necessary there as part of

the marking out process to affix notice of marking

out to the datum post. So the same consideration

arose, but that was not under consideration in

Hunter Resources. As I say, it was the physical

marking out with the pegs that was in consideration

there. Then one goes to form 20 and form 20, one

Pard 25/10/90

can see, is a form that has to be filled out and

obviously the regulation does not intend that one

can photocopy the form 20 in its blank form and put

that up on to the post. It must be completed in

accordance with the directions:

Full name and address of applicant;

Type of tenement;

Description of boundaries -

Now we say that any area on earth can be marked out with precision, using a compass and a tape measure.

There is no room for approximates; it can be done

precisely. The area is not regarded as so

critical; all you have to do is to give an

approximation in relation to area. Now what

happened in this case is that a description was

given and it appeared in two forms at one critical

leg of the form 20. If I can just turn that up for

Your Honours; it is on page 25 of the appeal

papers. Perhaps I can just give you a picture of

this so that Your Honours know what is happening.

If you go to page 20 Your Honours will there see a

whole lot of grey area and roughly in the middle of

it there is an L-shaped black piece. The piece in

question is that L-shaped piece, so the description

we are going to read on page 25 is a description

starting from, and I cannot recall whether it is

the bottom of the Lat the left-hand side or the

top of the L, but I think it is the bottom. Yes,

it is the bottom left-hand corner of that L-shaped

piece. So you go back to page 25 and it says:

Datum situated at the south east corner of

late.surveyed GML 16/6442

So that positions the datum peg. Then one, in the

field, gets the compass and goes 341 degrees

51 minutes; gets out the tape measure and goes

222.22 metres along that line; stops and puts in a

peg; the compass is then reso.rted to again -

145 degrees 26 minutes from that point is

determined as a line; along that line

197.94 metres is measured; another peg is put in.

From there the compass is again taken out,

86 degrees 43 minutes of the line is determined and

along that 166.86 metres is measured.	Then the
last leg is where the problem comes.	It then says

or that what one would do is get out the tape

measure -

TOOHEY J:  You are using the expression "measured". Does

one add measured and the post driven in to indicate

the point of departure from the line that has been

followed?

MR PULLIN: Yes, that is right.

Pard 4 25/10/90

TOOHEY J:  And in this case, I take it, there is no

complaint about the physical marking out of the

land?

MR PULLIN: Well, it becomes a matter of judgment, in the

end, where the error has occurred and I will come

to that in just a moment.

TOOHEY J: Yes, I can see a certain circularity there which

is dictated by which.

MR PULLIN:  Yes, I will deal with that in a moment,

Your Honour. It is not this leg, by the way, it is

the next leg; we have still got another leg to go.

We then come to the next point.	We go 183 degrees
and 20 minutes with the compass;	go along at 52.32

metres and then the last leg could have just said

back to datum. So you go back to datum. But in

fact it does say that and that would have been all

right. That would have identified the land, but

what they say is 278 degrees 28 minutes.

MASON CJ: It should have been 268.

MR PULLIN:  And it should have been 268, so if one looks at

north, one goes round, 278 takes you a bit too far

this way; 268 brings you back a line a bit further

to the left if one is facing the back of the Court.

So that ends up at a point which is not back at

datum. Now the person in the field who is looking

at this - who is also interested in the land - sees

this and says, now probably it could go back to

datum and that is the description, but there is

this other description which might mean that they

have got the datum in the wrong place or one of the

other pegs is in the wrong place or there is an

angle that has been measured wrongly somewhere and

one cannot be certain of it. Now, we say that is

the same as saying to somebody, go to a room and

find a six foot man in a red coat. You go to the

room and find a five foot man in a red coat and a

six foot man in a black coat.· The question is,

which one is right. Now it is all very well when

the other party comes along during the proceedings

and says, "Oh well I can tell you which one it is,

you should just follow the back to datum one. That

is the description that you should follow."

We say that out in the field that is a matter of judgment which has to be made at that point and

it is simply not good enough to be imprecise in the

description and in fact that the imprecision in

this came about due to laziness on the part of the

person marking out on behalf of the respondent,

Goldfan, because what he did instead of what he should have done, which is to mark it out, he took

a plan from the Mines Department and on the

Pard 25/10/90

Mines Department there was a description given

which he adopted for that last leg, which was

itself incorrect. Now if he had actually taken out

his compass he would have found that he was in

error. Now that is the point in issue. The

question is whether it is good enough to provide

alternative descriptions which require judgment in

circumstances where one can be precise to the nth

degree in the description of the outline of the

piece of land.

MASON CJ: There is no statutory requirement for absolute

accuracy in description, is there?

MR PULLIN:  No, and there was not, Your Honour, in Hunter

either, because all it said is that you must mark

out at not more than 300 metre lengths, or whatever

it was. Now they had gone a bit over 300 metres.

They said, well look, it is a regulation; substantial compliance is good enough and the

Full Court of this Court said that is incorrect.

Here the only requirement is if you describe the land, but when one is talking about compasses and

tape measures one can be, as I say, precise to the
nth degree.

On my outline of submission, I have pointed out that Mr Justice Ipp at page 41 said that:

Absolute accuracy would be a most stringent

requirement. ·

And we say that is just not correct. "Absolute

accuracy" is not a "stringent requirement". It is

very easy to comply with it. Mr Justice Wallace, I

have quoted from him at page 32 and I have set it

out in the outline of submission. He says:

Whilst it is accepted that there was the

aforesaid misdescription in the fifth line on

form 20, the map showing. the land applied for giving the required locality signature of the

surveyor and the same date as form 21,

contains no misdescription. It is accurate.

I have to say, of course, that we did not debate

the content of that plan. It was just assumed that
there was a plan on it which accorded with one of

the descriptions, that is the description which the

other side adopts now and wishes to say was their

intent all along. Mr Justice Wallace says:

Accordingly, therefore, in my opinion, no one

could have been misled thereby. It is not as

if the tenement applied for covered a vast

area, since the distances involved in each of

Pard 6 25/10/90

its five boundaries ranged from 52.32 metres

to 206.76 metres.

Now that suggests that His Honour is saying,

because it is a small area, there is no problem.

The corollary seems to be, if it had been a large

area, there might have been a problem. In my

submission, there is no basis for that distinction

at all.

Now there was then, with respect to

Mr Justice Ipp, an error in his judgment. Although

the matter was addressed, he appeared to overlook

completely the effect of the Hunter Resources case

in relation to section 142 of the Act. Section 142

is one which permits amendments, but the High Court

in Hunter Resources, and I make available copies of

the decision, quite clearly said that section 142

does not authorize the warden to make amendments to

this marking out provision. All that section 142

relates to is the application before the court and

the power of the court to make amendments. Could I

refer to Justice Dawson's judgment at page 255.

They are dealt with in quite short passages. About

half-way down page 255:

A further submission was made on behalf of the

first respondent in reliance upon section

142(2) of the Act.

And it is set out. Justice Dawson said:

In my view, that provision has no application

to overcome shortcomings in the marking out of
the relevant land by an applicant for a mining

tenement. The marking out ..... is no part of

the proceedings in a warden's court.

Your Honour Mr Justice Toohey, at page 259 at the

bottom of the page, said:

As to the first respondent's argument based on

section 142(2) of the Act, I am content to
adopt what Justice Dawson has said.	The

reference to "proceedings" in the sub-section

can have no application to a failure to mark

out in accordance with the regulations.

And Mr Justice Wilson at page 245 adopted what had

been said by Justice Dawson, I think it was, yes,

and had some other comments. His Honour

Mr Justice Ipp was advised of all of this, but by

the time the judgment was handed down, regard was

not paid to Hunter Resources and His Honour has

said that the warden had jurisdiction to make

amendments in relation to the matter and I refer

you to page 49 of the papers. Opposite line 10:

Pard 7 25/10/90

In any event, section 142(2) empowers a

warden to amend "all defects and errors in any

proceedings". I agree - - -

TOOHEY J:	What was it that was amended here?
MR PULLIN:	The amendment allowed was the amendment to

change the 278 to 268.

TOOHEY J:  On the form 20?

MR PULLIN: Well, that had to have been the result, although

it is not absolutely clear. If one goes back to

page 15 the warden there sets out section 142,

having recorded the fact that there was an

incorrect reading of the number of degrees.	So one
sees at page 15 opposite line 5:

The original plan was incorrect in that the

marking of 278 degrees should have read 268

degrees.

Then there is a reference to section 142.	Then the
warden says:

Section 142(1) does not apply -

But then:

is misdescription is an error that forms part of

An application for a miscellaneous licence

a "proceeding" within the meaning of

the proceedings, and can be amended

accordingly. The error in description does

not alter the physical location of the posts

in the ground.

Now what had happened is that the company Goldfan

had discovered its error before it came to court

and lodged another application in which it

described the land correctly, but form 20 is still

out on the post showing, of course, 278 instead of 268 degrees.

TOOHEY J: Hunter Resources was was not concerned with

amendment. It was really concerned with whether

the deviation that had taken place was an

informality within the terms of section 142 and it

was held not to be.

MR PULLIN: Yes, but -

TOOHEY J: But this is maybe a quite different question

here.

Pard	25/10/90
MR PULLIN:	No, but in that case, Your Honour, it was argued

quite squarely that in any event section 142(2)

overcomes the problem and this Court was asked to consider that and the Court said, "Well that does

not help you, because the warden cannot amend the

marking out papers."

TOOHEY J: Yes, I understand that.

MR PULLIN:  we just say that His Honour has overlooked

Hunter on that point and the decision is just

wrong, because it is contrary to Hunter Resources.

It has just been overlooked by His Honour.

TOOHEY J: Well it may not be contrary to Hunter Resources

in the sense that there may be power to amend the

application. I rather thought your argument was

that an amendment of the application would not help

the respondent because it still had failed to

comply with the requirements of the regulations.

MR PULLIN: Yes, entirely so but, with respect, I do not

see any difference between what was decided in

Hunter Resources on that point.

MASON CJ: But, Mr Pullin, the decision in Hunter Resources

depended upon the construction that the court

placed on regulation 59, in particular the words:

by fixing firmly in the ground at intervals

not exceeding 300 metres -

That was the strict compliance that the applicant

in that case failed to measure up to.

MR PULLIN: That is right.

MASON CJ:  Now that position has no application to this case

at all.

MR PULLIN: Except the principle, Your Honour, is that - the

argument there was, "Well look, we nearly

complied;

and because it is a regulation substantial we were just a bit over 300 metres,

compliance is enough." and that was rejected.

MASON CJ: But it was rejected because the words that I have

quoted in regulation 59 were construed as being

mandatory, not directory.

MR PULLIN: Quite so, Your Honour, yes.

MASON CJ: Well now you have not got any similar words that

deal with accuracy of description.

MR PULLIN: Well except, Your Honour, that we say we do,

because it says you must affix to the peg form 20.

Pard 9 25/10/90

Now that does not mean form 20 in a blank form, so one has to follow the directions in form 20 and form 20 says to describe the land.

MASON CJ: Certainly, but there is not a statutory

prescription of absolute accuracy in description.

MR PULLIN: It says "description".

MASON CJ: Yes, that is all it says.

MR PULLIN:  And we say "description" is equivalent to

300 metres, because you cannot approximately

describe a piece of land. You must, when it is

going to form the basis of title to perhaps

extremely valuable land, define it with - there is

no half-way house, "description" means

"description".

DEANE J:  To what hundredth of a centimetre?

MR PULLIN: Well, Your Honour, there is no width of the line

necessary. One only has to identify the direction

on the compass and one has to measure along that a

particular distance.

DEANE J: Except when you look at regulation 37 in the

context of the notice, it is clear, is it not, that
the boundaries are the notional lines between the
posts and the ground and when you come to the
notice you are not making a primary definition of

the land, you are describing those boundaries.

Well then the question really becomes, does that

suffice as a description of the boundaries?

MR PULLIN: Well it has to be accurate, Your Honour, because

there may be four posts within a metre and it is

critical therefore that one identifies which of the

four.

DEANE J: But if here it was half a centimetre short, I do

not think you would be putting the argument you are

putting.

MR PULLIN:  De minimis non curat lex, Your Honour, I think

is the answer to it.

DEANE J: Or, no, that suffices as a description that comes

within a permitted deviation, although one might
think here that the permitted deviation goes

beyond, but is that really a question of great

principle?

MR PULLIN: But that is not the case, Your Honour. It was

not decided on the basis, "Look you just cannot

challenge it because of this slight inaccuracy."

Pard 10 25/10/90

The fact is that that has not ever been suggested.

This just was not - - -

DEANE J:  No, but is not what has been said that in the

context of the overall description of this area of

land, this minor error does not preclude what is

there from being a description of the boundaries,

particularly when you got back to datum post?

MR PULLIN: That is what the court said, there is no doubt

about that, but the fact is there were two

descriptions given and a judgment had to be made at

the time. Somebody standing in the field looking

at it will have to make a judgment in relation to

it and we should not have regard to what the other

side, when it comes before the warden and before

the courts, says, is the correct description. One

should look at it by saying, "Well can one decide

which is correct?"

DEANE J: Well he only has to make a judgment if he is out

to make trouble, because we have agreed that the

boundaries are the notional points between the
posts. If he wants to find what the boundaries

are, unless the posts have been removed, he can

readily identify them. If he is looking for a

defect to, as it were, make trouble - that is not

said offensively, of course - he will then go to

measuring and his point will be, "Oh I can see what

the boundaries are, but this document does not

comply with notice 20" or whatever it is called.

MR PULLIN: Yes, but the intent might have been to put the

post where the description indicates.

DEANE J: But that will not do because the boundaries remain

the notional lines. It will be the description

that is in error and the description of the

boundaries cannot change what has already been

designated as the notional boundaries.

MR PULLIN: Well accepting that that is· so, Your Honour, it

still means that the marking out requirements have
not been complied with.	The answer would be then

to say that really there is no need to refer to any

paperwork. The marking out is really the pegging

of the outline of the land that one seeks and then

to go in and lodge the papers to apply for the
tenement, but marking out is not limited to just

driving in the pegs; marking out is three things,

one of them is form 20.

TOOHEY J: Yes, but there is a correspondence between the

physical marking out and the map that is attached

at the site, is there not?

Pard 11 25/10/90

MR PULLIN: It is on the datum post, Your Honour. It is

fixed to the datum post and so one takes it out and
says, "Well, here is the description", and he gets

his compass out and he looks down and he sees four

pegs and he goes down and he says, "Well I am not

sure which one." Let us say, in this case, the

description is wrong. He comes to a point - - -

TOOHEY J:  I am sorry - I am not sure what you mean by

"description". What does the map tell you?

MR PULLIN:  The trouble is, we really did not consider the

map in any detail, in this case. All the attention
was given to form 20 so, if I can, confine my

remarks to what is shown on form 20. He gets out

the compass; he looks down the line - - -

TOOHEY J: Well, perhaps you may be right in the way that

the case was conducted, but since you are placing

some importance on the way in which another miner

might be mislead, if you have a physical marking

out which corresponds with a map at the site, it

may well be that a reasonable miner would conclude

that there was some error in the description in

form 20.

MR PULLIN: Well that is the point that we take,

Your Honour, that there should be no need for any

judgment; that there should be a description which

does not require any judgment to be made about

where the proposed tenement is located. That is

our point. We say there should be no judgment

required of a miner and it is all very well to say

that it might only be a little bit, but it might be

a big bit. The point of importance to the mining industry is to know whether or not near enough is

going to be good enough in relation to the

paperwork. We have been told and it has been

tremendously helpful for the mining industry to

have Hunter Resources, because it just clears away

the kind of arguments that one can get on that

subject, so that nobody now raises any such
question.	What we are saying is that there should

be the same sort of certainty in relation to the

paperwork as well.

TOOHEY J: Yes, but the regulation under consideration in

Hunter Resources was a regulation of which a court

could say, near enough is not good enough, because

of the requirement that the posts not exceed

300 metres, but I do not really see how a court

could say, near enough is not good enough in

relation to regulation 37, because you come down to

the most minute discrepancies to a point perhaps

where the court simply is unable to say whether

there has been a deviation or not.

Pard 12 25/10/90

MR PULLIN: Well, in our submission, not, because we say

"description" - it is possible to describe a piece

of land accurately without any near enough is good
enough, involved in it. There is just no room

for - when one is talking about 268 degrees and

41 minutes, to say that there is any other line,

that is the line that one takes. If one says,

100 metres along it, one measures 100 metres along

it. We say it would remove any argument in an

industry which is full of argument and any
judgments of this Court are extremely beneficial to
the mining industry, because it does clarify or get

rid of disputes which are raised often for tactical

reasons, but the fact is that if one has a clear

authority against one from the High Court, it reduces litigation in that area. They are my

submission, may it please the Court.

MASON CJ: Yes, thank you, Mr Pullin. The Court need not

trouble you, Mrs French. This application raises a

question of construction of the contents of a

notice prescribed in regulations. The question, in

the context of this case, does not give rise to a

question of general principle. The application,

therefore, is refused.

MRS FRENCH:	Your Honour, I seek an order for costs.
MASON CJ:	You do not resist that, Mr Pullin?
MR PULLIN:	No.
MASON CJ:	The application is refused with costs.

AT 12.07 PM THE MATTER WAS ADJOURNED SINE DIE

Pard 13 25/10/90