Re Calder; Ex parte Gardner - [1999] WASCA 28

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 Peko Exploration Ltd, unreported; SCt of WA; Library No 970613; 14 November 1997
Re Warden Burton ex parte Roberts, unreported; SCt of Wa; Library No 970676; 14 October 1997
Re Warden Heaney SM; ex parte Flint, unreported; SCt of WA; Library No 950570; 27 October 1995
Tortola Pty Ltd v Saladar Pty Ltd & Anor [1985] WAR 195
Wilson & Ors v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1

PIDGEON J: I have had the advantage of reading in draft the reasons to be delivered by Wallwork J and Ipp J. I agree, for the reasons they give, that the order nisi should be discharged.
IPP J: I have had the advantage of reading the reasons for judgment to be published by Wallwork J. I set out below my reasons for coming to the same conclusion as his Honour.
This application for prerogative relief concerns an application by WMC Resources Ltd, pursuant to s 102 of the Mining Act 1978, for exemption from certain expenditure conditions in connection with three mining leases. In the proceedings before the learned Warden, the objector, Mr Gardner, sought an order for discovery. He submitted that the learned Warden had power under s 136(1) of the Act to make such an order. This section provides that in the absence of rules of court made pursuant to the Act:
"The rules of court of a Local Court established under the Local Courts Act 1904, for the time being enforced, so far as applicable, apply to the Warden's Court, but without limiting the jurisdiction conferred by this Act on a Warden's Court."
Mr Gardner submitted that the learned Warden was sitting as a Warden's Court, the rules of the Local Court applied, and those rules empowered his Worship to order discovery.
This argument, if correct, would have far-reaching effect. It would, for example, entitle any person, merely by objecting to an application for exemption, to obtain highly confidential information relating to mining exploration. The learned Warden, in careful and detailed reasons, held that in hearing the application for exemption under s 102 he was not sitting as a Warden's Court: hence, the rules of the Local Court did not apply and he had no power to order discovery. Mr Gardner challenges this decision in the present proceedings.
The Act defines "warden" as a warden of mines, and a "Warden's Court" as a court constituted under the Act (s 8(1)). This distinction, however, is not maintained with clarity throughout the Act. The Act provides for a number of separate and different ways in which the various statutory functions of the warden may be performed. These are by the warden sitting as the Warden's Court, by the warden in open court, and by the warden, as it were, without any qualification. In some instances, the lines of demarcation between these functions are not clearly drawn and at times distinctions apparent in some parts of the Act are blurred in others.

Over the years this has given rise to uncertainty, as it is often difficult to determine whether in a given case the warden is acting judicially or administratively, or as an inferior court or as an administrative organ. There have been a number of calls for the confusion to be remedied by legislative enactment: see the penetrating analysis by Mr Daryl R Williams QC in his article entitled Judicial Review of Wardens' Decisions [1984] AMPLA Yearbook 78. In this case, the issue as to whether, under s 102, the learned Warden was acting as a Warden's Court or otherwise, is crisply raised. Similar questions frequently arise in connection with other sections of the Act, and the answer to the issue presently raised can only be answered by reference to the Act as a whole.
For my part, it is helpful at the outset to be reminded of the general principle expressed by Gibbs J in Amman v Wegener (1972) 129 CLR 415 (at 436), namely:
"It does not necessarily follow that because a Magistrate is not exercising judicial functions he cannot be said to sit as a court. In Royal Aquarium & Summer & Winter Garden Society Ltd v Parkinson (1892) 1 QB 431 at 446-447, Fry LJ said:
'There are many other courts which, though not courts of justice are nevertheless courts according to our law. There are, for instance, courts of investigation, like the coroner's court'."
A further (and well-known) example of a court performing functions regarded as being "of a purely administrative nature" is a magistrate's court conducting a preliminary hearing: Grassby v The Queen (1989) 168 CLR 1 per Dawson J (at 11). Thus, although committal proceedings are administrative in nature, a magistrate hearing such proceedings has a duty to act judicially: Sankey v Whitlan & Ors (1979) 142 CLR 1 at 83-84 per Mason J. Other administrative bodies, apart from courts, may also be required to act judicially: Evans v Friedman (1981) 35 ALR 428 at 433, Rex v Electricity Commissioners, Ex parte London Electricity Joint Committee Co [1924] 1 KB 171, Ridge v Baldwin [1964] AC 40.
Before going to the particular sections of the Act, it is helpful to have regard the natural meaning of the terms, "the Warden's Court" and "the warden sitting in open court". In my opinion, the natural meaning of these terms indicates that when the warden sits as "the Warden's Court", the warden sits as a court, performing judicial functions and exercising the jurisdiction and powers of a Warden's Court as defined by the Act. The term "the warden sitting in open court" is used, it seems to me, in contra‑distinction to "the Warden's Court" and connotes the warden performing functions other than those performed when sitting as the Warden's Court. By qualifying the reference to "the warden" by the words "in open court", the Act requires that the functions performed by the warden "in open court" are to be performed publicly (that is, in open court).
The only "court" created by the Act, over which a warden may preside, is a Warden's Court. Section 13 of the Act entitles the Governor to appoint both Stipendiary Magistrates and other "fit and proper persons" to be wardens of mines, but provides that only a Stipendiary Magistrate is authorised or empowered to preside in a Warden's Court. Thus, while a warden who is not a Stipendiary Magistrate may perform functions "in open court", a warden who is not a Stipendiary Magistrate may not sit as a "Warden's Court". Thus, it seems to me, whenever a warden sits "in open court" as opposed to in the Warden's Court, the warden is not sitting as a court. I therefore respectfully disagree with the view expressed by White J in this regard in 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. His Honour was there dealing with the question whether the warden, in making a grant of a prospecting licence was acting administratively or judicially, and said:
"While I accept that, in acting pursuant to s42, the warden is not doing so as a Warden's Court, I am of the opinion that he nonetheless constitutes an inferior court and is not acting purely as an administrative tribunal. …With respect, I have reached a different conclusion from that expressed by Murray J [in Re Minister for Mines, Fuel & Energy; Ex parte Trythall (1992) 7 WAR 375]. In my opinion, the Act distinguishes between the warden's administrative role on the one hand and the judicial role on the other, rather than between his role as presiding over a Warden's Court on the one hand and all other functions (classified as administrative on the other hand)."
The requirement of legal qualification and training for the person presiding is often a significant distinction between courts and administrative bodies. This point was made in Craig v South Australia(1995) 184 CLR 163 at 176-177 where the High Court said:
"Putting to one side some anomalous exceptions, the inferior courts of this country are constituted by persons with either formal legal qualifications or practical legal training. They exercise jurisdiction as part of the hierarchical legal system entrusted with the administration of justice under the Commonwealth and State constitution. In contrast, the tribunals other than courts which are amenable to certiorari are commonly constituted, wholly or partly, by persons without formal legal qualifications or legal training. While normally subject to administrative review procedures and prima facie bound to observe the requirements of procedural fairness, they are not part of the ordinary hierarchical judicial structure."
Accordingly, in my opinion, the general intention of the Act is that the warden, in those instances when required thereby to sit "in open court", is acting in an administrative capacity. Whether, in so sitting, the warden is required to act judicially, depends on the nature of the power to be exercised: Ridge v Baldwin (at 76) per Lord Reid. I shall refer to some of the provisions of the Act which refer to the warden sitting in open court, and attempt to demonstrate, by reference to the nature of the particular duties the warden is required to carry out, that in virtually all instances, an administrative and not a judicial function is being performed (albeit that in most, if not all, instances the warden will be required to act judicially).
I turn, firstly, to prospecting licences. By s 42(3) the warden is required to hear and determine an application for a prospecting licence in open court (and not merely to make a recommendation to the Minister). By s 40 the warden is empowered to grant the applicant a prospecting licence. By s 56 an appeal against the warden's decision lies to the Minister. Under s 56, the Minister has wider powers to grant an application for a prospecting licence than those accorded to the warden: Re Minister for Mines, Fuel & Energy; Ex parte Trythall (1992) 7 WAR 375 (at 385). The appeal to the Minister (and not to the Supreme Court) and the wider powers of the Minister on appeal are inconsistent with the warden's decision being a judicial function.
Murray J in Re Minister for Mines, Fuel & Energy; Ex parte Trythall (at 389) said the following in regard to prospecting licences:
"It is necessary to determine what sort of function the Warden exercises in dealing with an application for a prospecting licence. It is certainly clear that in relation to those forms of tenement which lie within the grant of the Minister upon the recommendation of the Warden, in hearing the application and any objections thereto, and in making a recommendation, the Warden acts albeit judicially, in a purely administrative capacity: Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473, 481 and Stow v Mineral Holdings (Aust) Pty Ltd (1977) 14 ALR 397."
His Honour went on (at 389) to point out that in Westside Mines Pty Ltd v Tortola Pty Ltd [1985] WAR 345 the Full Court rejected the proposition that, in hearing an application for a prospecting licence, the warden was sitting as the "Warden's Court" (although, as Murray J indicated, it accepted that the grant by the warden of a prospecting licence was not an entirely ministerial act, but one to be performed judicially).
In my opinion, in dealing with prospecting licences under s 40, s 41, s 42 and related sections, the warden is discharging an administrative function, although he or she is required to act judicially in doing so. In other words, I agree, with respect, with Murray J.
There are several provisions of the Act which require the warden, sitting in open court, to recommend to the Minister whether or not various mining tenements should be granted or forfeited. A recommendation of this kind by the Warden has been said to be an entirely ministerial act and not a judicial act, and it does not fall with the words "civil proceedings": Smith v Leibig (1925) 26 WAR 10 at 11 per Northmore J. In Westside Mines Pty Ltd v Tortola Pty Ltd Rowland J said (at 350):
"In connection with applications or objections that relate to tenements that lie within the grant of the Minister only, the warden does not make a final judgment or a final determination or a final decision, he simply makes a recommendation to the Minister so there is no express power to appeal. If the grant of an application for a mining tenement by the warden is a final judgment, determination or decision, then s151(b) prohibits an appeal against that decision.
Construed in this rather literal manner, the Act seems to separate the purely ministerial from the judicial functions exercised by the warden … "
In my view all the recommendatory provisions of the Act should be construed in the light of these dicta.
Bearing this in mind, I turn firstly to the provisions relating to exploration licences, which are typical of the recommendatory powers of the warden. Section 59(4) requires the warden to hear an application for an exploration licence in open court. The warden is empowered, on hearing the application, to make a recommendation to the Minister who may grant or refuse the exploration licence as he or she thinks fit. On the basis of general principle, and the considerations and authorities to which I have referred above, I consider that the functions exercised by the warden under s 59(4) are administrative (albeit that they are to be performed judicially).
The provisions relating to mining leases are essentially similar. Section 75(4) requires the warden to hear an application for a mining lease in open court. The warden is empowered to make a recommendation to the Minister, who may grant or refuse the mining lease as he or she thinks fit. In Re Warden French; Ex parte Serpentine-Jarrahdale Ratepayers and Residence Association (1994) 11 WAR 315 (at 328) I noted that, in hearing such an application, "the warden is performing an investigatory and recommendatory function that assists the Minister in determining whether the tenement should be granted". In my opinion, these functions are administrative in nature.
The views I have expressed in regard to the grant of exploration licences and mining leases apply to all the recommendatory powers of the warden concerning the grant of mining tenements. It is accordingly unnecessary to detail all the relevant provisions of the Act in this regard.
The Act also provides for the making of recommendations by the warden to the Minister as to the forfeiture of mining tenements. For example, by s 98, applications for the forfeiture of exploration licences and mining leases, where expenditure conditions have not been complied with, are initially to be heard in open court by the warden. The warden is empowered to recommend to the Minister whether or not the tenement should be forfeited, and the decision as to whether forfeiture should take place is to be made by the Minister (s 99). In Re Warden Burton SM; Ex parte Roberts (1997) 18 WAR 379 this Court assumed that discovery was available in proceedings under s 98, but the only issue for determination in that case was, as Steytler J put it at 380, "whether or not the plaintiff in forfeiture proceedings brought under s98 … is entitled to obtain an order for discovery of documents … against the holder of a mining lease when that holder is a company." (My emphasis.) The point presently in issue was not then considered. In my opinion, there is no difference in principle between the warden's function in making recommendations for the grant of a tenement and the warden's function in making recommendations for the forfeiture of a tenement.
Section 98(4) empowers the warden, where the expenditure conditions have not been complied with, to impose a penalty on the holder of an exploration licence or mining lease of not more that $5000. Section 98(8) empowers the warden to make certain orders in regard to costs and expenses. It is not necessary to decide whether the powers under s 98(4) and (8) are judicial or administrative. I should say, however, that there is no reason why an administrative entity should not be given power to impose a penalty or order costs, and it is to be borne in mind that the penalty and costs powers are ancillary to the power to make recommendations.
Section 102 falls to be considered together with s 98. Under s 102 the holder of a mining tenement (other than a retention licence) may be granted a certificate of exemption in regard to the prescribed expenditure conditions. Section 102(5) provides that where an objection to the application for a certificate of exemption is lodged, the application shall be heard by the warden in open court. Nevertheless, the warden is only empowered to make a recommendation to the Minister who determines whether or not a certificate of exemption should be granted (s 102(6) and (7)). In my opinion, for the reasons previously expressed, the warden's power to make a recommendation under s 102(6) is administrative. This is consistent with the remarks of Malcolm CJ in Re Calder: Ex parte St Barbara Mines Ltd [1999] WASCA 25.
Section 96 is the converse of s 42, to the extent that it deals with the forfeiture of prospecting licences. It is anomalous in that (unlike s 42 and the other sections dealing with forfeiture of mining tenements) it does not require the warden to sit in open court. Section 96 provides that the warden may, upon the application of certain persons, make an order for the forfeiture of any prospecting licence or miscellaneous licence. By s 96(3) the warden may impose a penalty upon the holder of the mining tenement concerned. Section 96(5) provides for circumstances under which the warden may award the holder of the licence such sum for costs and expenses as the warden thinks fit.

Again, although I accept that the matter is less than clear (because in this instance the warden is making a final decision and not merely a recommendation), I think that the functions performed by a warden under s 96 in regard to forfeiture are administrative, albeit that the warden is required to act judicially in discharging them. In coming to this conclusion I am influenced particularly by the following factors. Firstly, the forfeiture of a tenement is the converse of the grant of a tenement. Essentially, in my view, the grant of a tenement is an administrative act (akin to the grant of a licence, see Re Bennett-Borlase Ex parte The Commissioner of Police, unreported; FCt SCt of WA; Library No 970322; 20 June 1997) and, in principle, it seems to me, forfeiture of a tenement falls into the same category. Secondly, under s 102, the warden may make a recommendation to the Minister as to whether a certificate of exemption in regard to the prescribed expenditure conditions should be granted, and the Minister may grant such a certificate. It would be anomalous if the warden's function in ordering forfeiture were to be judicial, while the warden's function in regard to a certificate of exemption (and that of the Minister) is administrative. Thirdly, by s 151(b) there is no appeal to the Supreme Court against a decision of a warden ordering forfeiture of a prospecting licence or a miscellaneous licence. This was a rationale of the opinion, in effect, arrived at by Burt CJ in Westside Mines Pty Ltd v Tortola Pty Ltd that the warden's decision to dismiss an objection to the grant of such a licence was not a decision made by the Warden's Court.
In Richmond v Panda Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 980615; 27 October 1998 Kennedy J said:
"A Warden's Court is given jurisdiction by s132(1) to hear and determine, in addition to 'all such actions, suits and other proceedings cognizable by any court of civil jurisdiction as arise in respect of' the specified matters, 'generally all rights claimed in, under or in relation to any mining tenement or purported mining tenement, or relating to any matter in respect of which jurisdiction is under any provision of this Act conferred upon either the Warden's Court or the Warden'. Jurisdiction under s96 of the Act is expressly conferred upon the Warden, and the present proceedings were therefore properly heard in the Warden's Court."
It is to be noted that these remarks were made in a context where Kennedy J was considering the warden's powers under s 96(3) and (5) in relation to the imposition of a penalty and the making of an order as to costs. Sections 96(3) and (5) are similar in content to s 98(4) and (8). For my part, the comments I have made in regard to the nature of the warden's functions in regard to s 98(4) and (8) are equally applicable to the warden's functions in regard to s 96(3) and (5). As regards s 132(1), my views are set out below. To the extent that I differ from Kennedy J in regard to both s 96 and s 132(1), I do so with great respect.
I have attempted so far to demonstrate that, generally, the provisions of the Act that deal with the warden sitting in "open court" are consistent with the warden acting as the warden of mines, in an administrative capacity, discharging administrative functions, albeit that the warden is usually required to act judicially in doing so.
What the Act means by a "warden", without any qualification such as sitting "in the Warden's Court" or "in open court", is a matter not without complexity. The complexity stems from the fact that the Act appears to contemplate that the warden will, in some instances, discharge a judicial function (albeit not as a Warden's Court), and in others an administrative function (albeit not "in open court").
A clear example of the first-mentioned category of functions is s 135(1) which provides:
"(1)Upon the request in writing of all parties to a dispute arising under this Act the warden, or in his absence the mining registrar if the parties so agree, may hear and determine the question in dispute, forthwith or at any time or place which he may appoint without requiring any formal proceedings to be taken.
(2)An order made by the warden or mining registrar in a case to which subsection (1) refers has the same force and effect as if made upon formal proceedings by a warden in a warden's court, and the order is final and conclusive, and not subject to appeal.
(3)The warden or the mining registrar, as the case requires, shall keep a record, in a register kept for the purpose, of every matter determined under this section by him and of his decision thereon.
(4)A contested application for the grant of a mining tenement shall not be taken to be a dispute within the meaning of that term in subsection (1)."
Section 135(1) is therefore a provision by which the warden resolves disputes, but not while sitting in the Warden's Court. Section 135(2), nevertheless, in effect, deems an order made pursuant to s 135(2) to be an order made in the Warden's Court. The point is that the section requires the warden to fulfil a judicial - and not an administrative – function (by determining disputes between parties that arise under the Act), other than in proceedings in the Warden's Court.
There are other provisions of a similar nature. Thus, s 143(1) provides for the grant of an injunction by the warden, as does s 146(7). Other judicial functions are accorded to the warden by s 146(7). These include, apart from the making of an injunction, the appointment of a receiver, and the making of an order that money be paid into court. Section 20(5) may be of a similar category: it provides that compensation to an owner or occupier of land (in the circumstances set out therein) is to be "assessed and settled in accordance with this Act by the warden" (although this may merely be a drafting error - see the reference to the Warden's Court in the related provisions in s 20(5b) and (5c)).
On the other hand, the Act provides, in several instances, for the warden to sit, in effect, in private, to discharge purely administrative functions, as a warden of mines. For example, a warden, in private, may, issue a Miner's Right (s 20). This is a purely administrative function (again, akin to the grant of a licence, see Re Bennett-Borlase Ex parte The Commissioner of Police). Section 20(5) empowers the warden to authorise prospecting and this, too, is purely an administrative act. Section 30(1) falls into the same category: it empowers a warden to permit a person to enter private land to search for any mineral or mark out a mining tenement. In Wade v Burns (1966) 115 CLR 537 Barwick CJ said at 551 (in regard to New South Wales legislation concerning the right to enter private land to search for minerals):
"In connection with the grant or refusal of an application for authority to enter, the warden is acting really ministerially as an official, and not in any sense in exercise of a jurisdiction. It is of course otherwise when he constitutes the Warden's Court. Such powers, authorities or discretions as are given to him are given expressly."
In terms of s 47(1) the warden alone may order a survey to be made of boundaries in order to settle disputes. This is plainly an administrative function.
I do not propose to refer to any further provisions of this kind. I think those which I have mentioned bear out that, under the Act, the warden, acting other than as the Warden's Court and not sitting in open court, may act judicially or administratively, depending on the nature of the functions to be discharged.
I now come to Pt VIII of the Act which is entitled "Administration of Justice". Section 127 deals with the establishment of Warden's Courts, and s 128 provides that the Warden's Court will be a court of record. Section 132(1) sets out the jurisdiction of the Warden's Court. It provides that the Warden's Court "has jurisdiction to hear and determine all such actions, suits and other proceedings cognizable by any court of civil jurisdiction as arise" in respect of various matters stipulated and goes on to include, as part of the jurisdiction, "generally all rights claimed in, under or in relation to any mining tenement or purported mining tenement, or relating to any matter in respect of which jurisdiction is under any provision of this Act conferred upon either the Warden's Court or the warden". In his article to which I have referred above, Mr Williams QC says (at 82) in regard to the reference to the phrase "or the warden" at the end of s 132(1):
"It is not intended [by s132(1)] to confer on the Warden's Court jurisdiction which is, under the Act, properly exercisable by the warden acting as warden of mines. The intention is to give the Warden's Court jurisdiction to hear proceedings relating to claims of right arising from matters that the warden deals with under the Act. The warden sitting as the Warden's Court could not, therefore, hear an application for grant or forfeiture of a mining tenement. That is a matter for the warden sitting as the warden of mines. A Warden's Court could, however, entertain proceedings relating to a dispute as to the rights arising out of the grant or forfeiture of a mining tenement. The very terms in which the general jurisdiction is conferred on the Warden's Court – 'actions, suits and proceedings cognizable by any court of civil jurisdiction' – make it plain that the court exercises a jurisdiction which is concurrent with that of the Supreme Court …
In addition to the general jurisdiction, the Warden's Court has particular jurisdiction conferred on it under the Act in respect of the determination of compensation. …
The Warden's Court determines the amount of compensation payable to the owner and occupier upon the application of the owner, occupier or tenement holder."
I agree with these observations. I do not accept that the phrase at the end of s 132(1) "or relating to any matter in respect of which jurisdiction is under any provision of this Act conferred upon either the Warden's Court or the warden" means that every time the Act confers power on a warden to perform a function, the warden is acting as a Warden's Court. I have referred to some of the powers of a warden which are plainly administrative in nature and quite alien to the functions of a court. In my

view the reference to "or the warden" at the end of s 132(1) is a reference to the warden performing purely judicial functions (such as those referred to s 135(1) and the other sections which fall into the same category). This conclusion is supported by s 134(1), (5) and (6) which appear to confine the powers of a Warden's Court to those ordinarily exercised "for the determination and settlement of all actions, claims, questions and disputes properly brought before the warden's court … " (s 134(1)), in relation to "matters relating to any civil proceedings" (s 135(5)), and in "a court of civil jurisdiction" (s 135(6)). It might further be said to be inappropriate to apply the rules of the Local Court (as required by s 136(1)) in matters which are not civil proceedings or to matters which would not ordinarily be justiciable by a court of civil jurisdiction.

Section 102 governs the present application. I have expressed the opinion that the warden's power to make a recommendation under s 102(6) (as to whether WMC Resources Ltd should be granted exemption from the applicable expenditure conditions) is administrative. In my opinion, in exercising that power, the warden is not sitting as the Warden's Court. Accordingly, I consider that the learned Warden was entirely correct in the conclusions to which he came.
Counsel for the applicant tentatively submitted that it was a rule of natural justice that discovery should be made. No authority was cited insupport of this proposition. In my opinion it has no foundation in general principle. It is not procedurally unfair for the applicant to proceed with its objection in the absence of discovery. In my view, it would be unfair to allow any objector in the position of Mr Gardner to be able to obtain from its competitor for mining rights highly confidential information merely by the expedient of objecting to an application for exemption.
I would discharge the order nisi.
WALLWORK J: The question to be decided on the return of this order nisi is whether the learned Warden was correct when he ruled that he was not sitting as a Warden's Court when hearing an application by WMC Resources Ltd for exemption from certain expenditure in connection with three mining leases in the Broad Arrow mineral field pursuant to s102 of the Mining Act 1978 ("the Act").
An amended application for exemption had been objected to by Mr Gardner on grounds in essence that WMC Resources Ltd had failed to

invest adequate resources in and had neglected the potential for developing the relevant leases. It was also alleged that WMC Resources Ltd was not revealing the true position to the Warden concerning the leases. The objectors sought further and better discovery of documents. WMC Resources Ltd opposed such an order.

Counsel for the objectors submitted before the learned Warden that there were two sources of power for the Warden to order discovery – firstly, s136 of the Act which provides that the Rules of the Local Court apply to the practice and procedure of a Warden's Court and secondly, the rules of natural justice.
It was claimed by the objector that s102(5) of the Act, which provides that where an objection to an application for an exemption is lodged, the application "shall be heard by the Warden in open court", means that the application is to be heard by a Warden's Court. It followed it was said that the Warden had the power pursuant to s136 to order the discovery sought by the objector.
The learned Warden held that s132 of the Act, which provides the jurisdiction for a Warden's Court, is concerned with a situation where there are "rights claimed". His Worship said that in making an application for exemption under s102, the applicant was not claiming a right because there was no "right" to an exemption. An exemption is a matter solely within the discretion of the Minister. He ruled that he had no power to order discovery and refused to make an order.
In my opinion the learned Warden was correct in his ruling. An analysis of the Act shows that the jurisdiction of a Warden's Court is provided for in s132 of the Act only. The jurisdiction is to hear and determine "all such actions, suits and other proceedings cognisable by any court of civil jurisdiction as arise in respect of" mining operations and mining products and "generally all rights claimed" in connection with those matters.
Warden's Courts are established pursuant to Part VIII of the Act which is headed "ADMINISTRATION OF JUSTICE". Part VIII follows parts of the Act which provide for the regulation of mining in Western Australia.
Part III of the Act declares which land is open for mining and which land is exempted. The Minister who administers the Act is given extensive powers to permit mining on land and to exempt land from mining.
Part IV of the Act is headed "MINING TENEMENTS" and concerns such matters as prospecting licences, exploration licences and retention licenses. In Division 3 of that Part, ss71 to 85(b) are concerned with mining leases. Division 4 is concerned with general purpose leases. Division 5 is concerned with miscellaneous licenses.
It is significant that pursuant to s71 the Minister is given power after receiving a recommendation from the Mining Registrar or the Warden, to grant a mining lease on such conditions as the Minister considers reasonable. It is noted that pursuant to s74(2) an applicant must furnish such information in support of the application for a mining lease as the Mining Registrar or Warden may require "but the Mining Registrar or Warden shall not require any information or evidence relating to assays or other results of any testing or sampling that the applicant may have carried out on land the subject of his application." That provision has relevance to discovery.
Pursuant to s75 the Minister may grant or refuse a mining lease "as the Minister thinks fit" irrespective of whether a Mining Registrar has recommended its grant or refusal or whether, where an objection has been lodged, and after the hearing of an application "in open court", the Warden has recommended the grant or refusal of the lease.
In the definition section of the Act (s8) "the Warden" means the Warden of the mineral field or district thereof in which the subject matter arose or is. The words "open court", which appear in the Act in various sections such as s75, are not defined. In contrast the words "Warden's Court" which Court is given its jurisdiction in s132 of the Act, is defined in s8 as meaning "the Warden's Court constituted under this Act or deemed so to be for the mineral field or district thereof in which the subject matter in relation to which the term is used arose or is." Section 128 makes a Warden's Court a court of record. Section 134 gives a Warden's Court power to make orders "on all matters within its jurisdiction, for –
(a) the enforcement of contracts;
(b) …
(c) …
(d) …
(e) …
(f) …
(g) …
(h) …
(i) …
(j) …
and generally for the determination and settlement of all actions, claims, questions and disputes properly brought before the Warden's Court, and for the enforcement and carrying out of any order previously made, and for awarding or apportioning costs in any such proceedings."
Section 134(5) provides that "Subject to this Act and without affecting the jurisdiction of a Warden's Court, a Warden's Court or the Warden, as the case may require, has and may exercise in relation to all matters relating to any civil proceeding under this Act the like powers and authorities as are conferred upon the Supreme Court or a Judge thereof". (My underlining.)
In my view the jurisdiction and powers of a Warden's Court are different to those which are given to the Warden "in open court" in such sections as s75, where the Warden after the hearing of objections makes a recommendation to the Minister which may be acted upon or not "as the Minister thinks fit". Courts of record do not function in this way whereas administrative persons or authorities may do so.
Pursuant to s86 general purpose leases are granted by the Minister after receiving a recommendation from the Mining Registrar or the Warden. Miscellaneous licences may be granted for various purposes directly concerned with mining operations by the Mining Registrar or the Warden (s91). If an application for such a licence is refused or granted on conditions which the applicant considers to be unreasonable, the applicant may appeal to the Minister.
Pursuant to s96 of the Act the Warden may make an order for the forfeiture of any prospecting licence or a miscellaneous licence if certain conditions required under the Act are not complied with. A Warden may as he thinks fit, as an alternative to an order for forfeiture, impose a penalty upon the holder of the mining tenement. Pursuant to s96A the Minister may in certain circumstances cause an exploration or a retention licence to be forfeited. The Minister may as an alternative to forfeiture impose a penalty upon the holder of the licence.
Pursuant to s97 the Minister, for certain breaches of condition, may declare a mining lease or general purpose lease forfeited. The Minister may also cancel any such forfeiture, or as an alternative impose a penalty upon a lessee of such a lease.
Pursuant to s97A "applications" against the forfeitures of mining tenements under ss96, 96A or 97 may in certain cases be made to the Warden. The applicant may be required to furnish certain information to the Warden "but the Warden shall not require information or evidence relating to assays … testing, sampling …".
Applications under s97A are heard by the Warden "in open court". Persons may be heard in opposition to the applications. Applications to which s96 of the Act applies (prospecting or miscellaneous licences) may be determined by the Warden. In any other case the Warden recommends the grant or refusal of the application to the Minister and the Minister makes the final decision. This is not the process followed by a court of record.

Section 98 allows for an application to the Warden for the forfeiture of exploration and mining leases for breaches of expenditure conditions. Such applications are to be heard "in open court" by the Warden. The Warden may recommend the forfeiture of the licence or lease or impose a penalty as an alternative, or dismiss the application. The final decision on the recommendation is left to the Minister who may act as he or she "thinks fit" and declare the licence or lease forfeited, impose a penalty, or not do either.
Coming now to s102 of the Act under which the relevant application in this matter was made, where an objection is lodged to the application, the application is heard by the Warden "in open court". Where there is no objection the application is forwarded to the Minister for determination by the Minister.
After a hearing by the Warden under s102, a report recommending the granting or refusal of the application, the reasons for the recommendation, the notes of evidence and any other documents are sent to the Minister "for his consideration". The final decision is made by the Minister and may not be in accordance with the Warden's recommendation.
Part IVA of the Act deals with the registration of documents affecting tenements.
Part V of the Act contains general provisions relating to mining and mining tenements, such as provisions concerning the marking out of land concerning mining tenements, priorities for applications for mining tenements, rents, royalties and certain offences against the Act. Section IIIA provides that the Minister may for certain reasons including "on reasonable grounds" terminate an application for a mining tenement before the Mining Registrar or the Warden "has determined, or made a recommendation in respect of, the application; or (b) refuse an application for mining tenement, …". That could for example cover an application for a mining lease pursuant to s75 which is to be heard "in open court". In my view such a provision is inconsistent with the operation of a court of record.
Following sIIIA are provisions dealing with such matters as mineral exploration reports, the protection of mining tenements and the sale and mortgage of them.
Part VI of the Act allows for the lodging of caveats to protect interests in mining tenements.
Part VII concerns compensation for loss and damage suffered by persons arising from mining. Section 123(3) provides for "the Warden's Court in formal proceedings" to determine certain compensation claims. Section 123(8) refers to "an action in the Warden's Court for compensation pursuant to this Act". The section allows the court in circumstances there specified, to "give judgment or make a determination as to the compensation payable in respect of any specified period and in respect of the whole or part of the total claim for compensation". Section 123(9) provides that "a determination made by the Warden's Court under sub-section (3) is, for the purposes of s147(1), a final determination of the Warden's Court".
Jumping ahead in the Act, s147(1) provides: "Except as provided in Section 151, any party aggrieved by any final judgment, determination or decision of the Warden's Court may appeal therefrom to the Supreme Court".
Section 151 provides: "There shall be no right of appeal under this Part –
(a)where at or before the hearing of any proceedings in the Warden's Court the parties thereto have agreed by a memorandum in writing lodged in the Warden's office, that the decision of the Warden's Court therein shall be final;
(b)in respect of any decision, order or recommendation of the Warden, the Mining Registrar or the Minister upon any application for a mining tenement, the forfeiture thereof, or exemption from expenditure or other conditions;
(c)in respect of any matter in which it is provided by this Act that the determination of a Warden or Mining Registrar is final and conclusive and not subject to appeal."
Returning to s124(1), it refers to matters to be considered by "a Warden's Court" when considering matters relating to compensation. Section 125 refers to "the Warden's Court".
Then comes Part VIII of the Act which deals with the establishment of Warden's Courts and their jurisdiction and powers.
Section 135 allows the Warden, or in his absence the Mining Registrar "if the parties so agree", to determine disputes under the Act "forthwith or at any time or place which he may appoint without requiring any formal proceedings to be taken".
Section 136 provides for the practice and procedure of a Warden's Court. Section 138(1) provides that "the hearing of all proceedings in a Warden's Court shall be in open court … and all evidence shall be taken on oath …". Section 139 provides for contempt of "a Warden's Court". Section 140 provides for the enforcement of orders made by "a Warden's Court".
I am not aware of a decision of this court which conflicts with the decision of the learned Warden in this case. The Warden comprehensively discussed previous decisions on this question in his decision in Latham v Great Australian Gold NL, unreported; 26 June 1998; application number 274/956; objection 30/956, which decision he followed in this case.
In the Latham decision His Worship followed the reasons of Murray J in Re Minister for Mines, Fuel and Energy; Ex parte; Trythalln & Ors (1991) 7 WAR 375 where His Honour said that in hearing an application for a prospecting licence the Warden was not sitting as a Warden's Court in relation to a matter within its jurisdiction.
In the Latham decision the learned Warden also referred to the words of Ipp J with whom Kennedy J agreed, in Re Warden French; Ex parte Serpentine-Jarradhale Ratepayers & Residents Association (1994) 11 WAR 315 where His Honour said at p328 that in hearing an application for the grant of a mining lease, "the Warden is performing an investigatory and recommendatory function that assists the Minister in determining whether the tenement should be granted".
In my view it is clear from the provisions of the Act and the Act's structure and consistent with the decisions of this Court, that the learned Warden in this case was correct in his decision in this matter that he was not sitting in a Warden's Court. He was also correct in his decision that he therefore had no power to order further discovery of documents pursuant to the provisions of the Rules under the Local Courts Act 1904, which Rules can be used in proceedings in a Warden's Court – s136 of the Act.
The order should therefore be discharged.