Pasinok v Merrill

[1993] HCATrans 252

..

.

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A29 of 1992

B e t w e e n -

MIKE PASINOK

Applicant

and

HEATHER MERRILL

Respondent

Application for special leave

to appeal

DAWSON J

TOOHEY J McHUGH J

TRANSCRIPT OF PROCEEDINGS

Pasinok 1 26/8/93

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 26 AUGUST 1993, AT 12.06 PM

Copyright in the High Court of Australia

MR C.J. KOURAKIS: If the Court pleases, I appear for the

applicant. (instructed by Zacharoyannis, Luppino &

Eckermann)

MR H.G. ROWELL: If the Court pleases, I appear for the

respondent. (instructed by Stratford & Co)

MR KOURAKIS:  If the Court pleases, the judgments in this

case support the grant of what is effectively a

relief against forfeiture of a mining claim where

there has been a deliberate and prolonged breach of

an essential term or condition of that claim.	The
matter of special importance, it is submitted,
which arises from the judgment, is that that,

viewed on its own, extreme result was arrived at

without proper regard to what ought to have been

the exceptional nature of the grant of such relief

in those circumstances and without regard to the

qualifications on the discretionary grant of that

relief which arise from the objects, the scope and

the purpose of the Act. In the end result, the

decision was made without providing a set of

principles which would guide any subsequent

exercise of that discretion.

TOOHEY J: Unless the discretion, if it were a discretion,

miscarried, why should we grant special leave in

order that some general principles could be laid

down? We have a finding by the warden, by

Justice Matheson, by two members of the Full Court,

all favouring the decision not to forfeit this

claim.

MR KOURAKIS:  If the Court pleases, the primary reason is

that the warden, through to His Honour

Justice Prior, came to that conclusion by reasoning

that a practice which had developed at the opal

field, Mintabie, to mine by the use of bulldozers

and without the performance of personal labour,

that that practice in diametric opposition to the

scheme was something that could be considered as a

factor tending against forfeiture.

TOOHEY J: Yes, but at the same time the Full Court flagged

the situation for the future, did it not, by saying

that this was not a practice which necessarily

could be justified, that this was, as it were, the

first time that it had come before the Full Court,

or I assume it to have been in this particular

form, and the Court was not prepared to interfere

with what had been done below.

MR KOURAKIS:  If the Court pleases, it did flag that that

might be the future consequence and it did so - and

in particular His Honour Justice Prior did so by

saying that forfeiture would be a sanction of last

Pasinok 2 26/8/93

resort. In flagging it as a future consideration

in so describing the application of forfeiture, in

my submission, the Full Court, the majority, fell

into error because that test, a sanction of last

resort, leads to a subjective consideration of when

forfeiture will arise. A more objective, sound

basis is one which looks at the objectives of the

act and the nature and gravity of the breach and

forms a conclusion as to whether forfeiture is

justified following from that.

If the Court pleases, can I put it in this

way. When this Act, the 1971 Act, was introduced the minister in the second reading speech referred

to the previous legislation in South Australia,

which simply provided a broad discretion by the use

of the word "may" and invested a warden with that

discretion. The minister said that the use of the

words "sufficient gravity" in the new Act, the

1971 Act, was designed to prevent forfeiture

following a minor breach, and would allow the

warden to deal justly with any claim that came

before it.

In my submission, the gloss which is now being

placed on the operation of that section,

section 69, reverses what would otherwise apply,

and the matter has gone full circle. It now

appears that forfeiture is exceptional where, in my

submission, the object - the Parliament's intention

in enacting section 69 - was still to allow a

forfeiture as the ordinary consequence of

fundamental breach but, simply, to prevent

forfeiture in cases of minor or technical breach.

TOOHEY J: Well, I suppose the object of the regulations is

to ensure that someone just does not peg a claim

and sit on it, not literally, but just do nothing

about it.

MR KOURAKIS:  If the Court pleases, that is one of the

objects and, the object of working mines -

traditionally and historically - has been the main

purpose of labour conditions in all mining

legislation but, very importantly, in the
administration of the opal fields, the labour is
required to be personally performed. Now, there

are many social and environmental reasons why the

legislature might decide to make personal

performance a requirement in a precious stones

field. The encouragement of the multiplicity of

claim holders and its consequential public benefit

in employment, and the protection of environment,

which was also mentioned in the second reading

speech as these provisions, can clearly be seen as

a reason why such a policy would be very important

to the legislature.

Pasinok 26/8/93

With respect, it is my submission, that

insufficient regard was given to that very scheme,

encouraging personal labour and the expending of

personal effort in this field. The scheme that I

refer to is set out in the outline, which has been

provided. A body corporate cannot hold an opal

mining claim. If the Court pleases, a natural

person can only hold one prospecting permit at a

time, and can only hold one claim at a time.	The
claims are limited in area, the miner must

personally peg and apply for the claim, and it must

be personally and diligently worked. Those

criteria appear from both the Act and the

regulations thereunder.

MR KOURAKIS:  There could not have been a more deliberate or

prolonged breach of those requirements. The claim

was pegged in July 1988 by the respondent, but with

her husband. She then took no further part in the

working of the claim, but returned to Adelaide

where she worked as a social worker and was the

proprietor of a shop. From 1988 through to the

time of the plaint in 1991, it was only her husband

who performed some work on the wife's claim.

TOOHEY J: But what are you inviting us to do, Mr Kourakis?

That we will review the facts and substitute our

own decision that the breach was of sufficient

gravity as to justify the forfeiture of the claim?

I mean, that is an assessment which has been made by the warden and by four judges of the

South Australian Supreme Court, three of whom

thought the forfeiture, or agreed with the warden

that forfeiture was not warranted. Why should we

embark on another review, especially as any
consequences that the decision might have for the

future, have been met by what the court, itself,

has said, the Full Court, in dismissing the appeal.

It sent a warning to other holders of these claims.

MR KOURAKIS:  If the Court pleases, the way in which the

warning was sent, to say that it would be a

sanction of last resort, is not sufficient to

ensure the proper administration of what the

Parliament always intended in the administration of

this opal claim.

DAWSON J: But in giving a discretion, Parliament did intend

that the otherwise harsh application of the Act

might be tempered, did it not?

MR KOURAKIS:  If Your Honour pleases, that is so for minor and technical breaches.

DAWSON J: Well, for such reasons as appeared sufficient to

the warden.

Pasinok	26/8/93
MR KOURAKIS:	If Your Honour pleases. The sufficiency of those reasons, in my submission, ought to be
judged, most importantly, by the objects and
purpose of the Act.  What the warden did not do in
this case, in my submission, is look at that scheme
which insisted upon personal effort and labour and
judged the breaches in the light of that scheme. And worse, both the warden, the learned valuation
division justice and then His Honour Justice Prior,
considered that a mining practice with the use of bulldozers, with no personal labour, which had
developed quite unlawfully was, in itself, a reason
to grant relief against forfeiture.
DAWSON J:	You say to grant relief against forfeiture, but

that is not what the Act says. The Act does not

empower the warden to grant relief against

forfeiture, it provides that they will do no order

forfeiture unless the court is satisfied that the

requirements of the Act have not been complied with

in a material respect and that the matter is of

sufficient gravity to justify forfeiture.

So, you do not start with the proposition that the claim is forfeitable by reason of a breach. It

is, in a sense, a last resort, because forfeiture

cannot be ordered unless the requirements of the

section have been met.

MR KOURAKIS: If the Court pleases, I accept that, and that

was the effect of the judgment of His Honour

Justice Wells in the Pacminex case, which is in the

materials and cited in the argument. But equally,

it follows from that, that once the matter is of

sufficient gravity, then the order for forfeiture

must be made, and the word "may" is used in its
mandatory sense. That was also a finding that

His Honour Justice Wells made.

In this case, the complaint is that the matter of sufficient gravity was the complete and

deliberate disregard by this claim holder and the	field generally, a very carefully designed scheme
by the Parliament for the administration of that
opal field, and the effect of the leniency given in
this case was effectively to disregard Parliament's
intention with respect to that field.

Flagging a warning was not a sufficient

enforcement of the job that Parliament had

entrusted the warden and, on appeal, the supreme

court, with, and if the Court pleases, in essence,

that is my submission as to why the decisions

appealed from were wrong. If they were wrong, in

my submission, the importance to South Australia in

the proper administration of this field is obvious.

Mining legislation in other States impose general

Pasinok 26/8/93

discretions on either the wardens or ministers, the

Governor in Council, both of which would need to have regard to any principle this Court laid down

in the exercise of those other discretions

interstate. If the Court pleases.

DAWSON J: Thank you, Mr Kourakis. The Court need not

trouble you, Mr Rowell.

This case concerns the construction of a

statute of local application and the Court is not persuaded the Full Court was in error in reaching the conclusion which it did. For these reasons,

special leave to appeal must be refused. Special

leave is refused.

MR ROWELL:  If the Court pleases, I apply for costs in this

matter.

DAWSON J:	Can you say anything about that, Mr Kourakis?
MR KOURAKIS:	No, I cannot, if the Court pleases.

DAWSON J: Special leave is refused with costs.

AT 12.19 PM THE MATTER WAS ADJOURNED SINE DIE

Pasinok 6 26/8/93