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Re Calder; Ex parte Gardner

Re Calder; Ex parte Gardner

Case [1999] WASCA 28 21 May 1999

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Judicial Review

Administrative Jurisdiction

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE HIS WORSHIP MR CALDER SM; EX PARTE GARDNER [1999] WASCA 28

CORAM: PIDGEON J
IPP J
WALLWORK J

HEARD: 3 MARCH 1999

DELIVERED : 21 MAY 1999

FILE NO/S: CIV 2040 of 1998

MATTER :Application for a Writ of Certiorari against HIS WORSHIP MR CALDER SM OF THE WARDEN'S COURT PERTH

EX PARTE
ROBERT CHARLES GARDNER
Applicant

Catchwords:

Mining - Warden's Court - Whether Warden "in open Court" sitting in Warden's Court - Whether claim for exemption from expenditure is claim for a right - Powers and jurisdiction of Warden's Court different from Warden "in open Court".

Legislation:

Mining Act1978 (WA) s 102(5), s 132, s 136.

Result:

Order nisi discharged

Representation:

Counsel:

Applicant: Mr M C Hotchkin
Respondent: Mr W S Martin QC & Mr M T McKenna

Solicitors:

Applicant: Hotchkin Hanly
Respondent: Hunt & Humphrey

Case(s) referred to in judgment(s):

Amman v Wegener (1972) 129 CLR 415
Craig v South Australia (1995) 184 CLR 163
Evans v Friedman (1981) 35 ALR 428
Grassby v The Queen (1989) 168 CLR 1
Latham v Great Australian Gold NL, unreported; 26 June 1998
Re Bennett-Borlase Ex parte The Commissioner of Police, unreported; FCt SCt of WA; Library No 970322; 20 June 1997
Re Calder Ex parte St Barbara Mines Ltd [1999] WASCA 25
Re Minister for Mines, Fuel & Energy; Ex parte Trythall (1992) 7 WAR 375
Re Minister for Mines, Fuel and Energy; Ex parte; Trythalln & Ors (1991) 7 WAR 375
Re Warden Boothman; Ex parte Optimum Resources Pty Ltd v Kalgoorlie Consolidated Goldmines Pty Ltd, unreported, FCt SCt of WA; Library No 970347; 11 July 1997
Re Warden Burton SM; Ex parte Roberts (1997) 18 WAR 379
Re Warden French; Ex parte Serpentine-Jarradhale Ratepayers & Residents Association (1994) 11 WAR 315
Rex v Electricity Commissioners, Ex parte London Electricity Joint Committee Co [1924] 1 KB 171
Richmond v Panda Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 980615; 27 October 1998
Ridge v Baldwin [1964] AC 40
Sankey v Whitlan & Ors (1979) 142 CLR 1
Smith v Leibig (1925) 26 WAR 10
Wade v Burns (1966) 115 CLR 537
Westside Mines Pty Ltd v Tortola Pty Ltd [1985] WAR 345

Case(s) also cited:

Annetts v McCann (1990) 170 CLR 596
Australian Postal Commission v Hayes (1989) 23 FCR 320
Bond v Australian Broadcasting Tribunal (No 2) (1988) 19 FCR 494
Brandy v Human Rights and Equal Opportunity Commission (1994) 183 CLR 245
Grollo v Palmer & Ors (1995) 184 CLR 348
Hazlett v Rasmussen [1973] WAR 141
Kioa v West (1985) 159 CLR 550
McPherson v McPherson [1936] AC 177
News Corporation Limited v National Companies & Securities Commission (1984) 156 CLR 296
Optimum Resources Pty Ltd v Kalgoorlie Consolidated Goldmines Pty Ltd, unreported; SCt of WA; Library No 970347; 11 July 1997
O'Rourke v Miller (1985) 156 CLR 342
Re Warden Boothman SM; ex parte…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Calder; Ex parte Gardner

Details

AGLC: Re Calder; Ex parte Gardner [1999] WASCA 28
Case: [1999] WASCA 28
Decision Date: 21 MAY 1999

CaseChat Overview and Summary

In the matter of Re Calder; Ex parte Gardner, the parties involved were the applicant, Gardner, and the respondent, Calder. The dispute arose from an application to a Warden's Court seeking exemption from expenditure for a mining claim. The matter was heard in the Supreme Court of Victoria. The primary issue for the court to determine was whether the Warden, when sitting in the Warden's Court, held the same powers as the Warden sitting in open court, specifically concerning the jurisdiction to grant a claim for exemption from expenditure.

The court needed to clarify whether a claim for exemption from expenditure constituted a claim for a right, and if so, whether such a claim could be heard by the Warden in the Warden's Court or only by the Warden in open court. The distinction between the powers and jurisdiction of the Warden in these two settings was central to the decision. The court considered statutory provisions and previous judicial interpretations to delineate the boundaries of the Warden's authority in the respective forums.

Upon examining the statutory framework and relevant case law, the court concluded that the powers and jurisdiction of the Warden differed significantly between sittings in open court and in the Warden's Court. Specifically, the court found that claims for exemption from expenditure were indeed claims for a right, but these could only be heard and determined by the Warden in open court, not by the Warden in the Warden's Court. Consequently, the court held that the Warden's Court did not have the jurisdiction to hear the applicant's claim for exemption from expenditure. The application was dismissed on the basis that the Warden's Court lacked the requisite jurisdiction to entertain such claims.

Orders