Re Guests - [2001] WASC 158

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE GUESTS; EX PARTE PLUTONIC OPERATIONS LTD [2001] WASC 158

CORAM: ROBERTS-SMITH J

HEARD: 14 JUNE 2001

DELIVERED : 20 JUNE 2001

FILE NO/S: CIV 1780 of 2001

MATTER :Objection KR14/001 by DAVID GUESTS to application for exemption from expenditure conditions KR73/001 by PLUTONIC OPERATIONS LTD affecting Mining Lease M47/223
Application for a Writ of Certiorari against the Warden sitting at Karratha, His Worship Paul Nicholls SM
EX PARTE
PLUTONIC OPERATIONS LTD
Applicant

Catchwords:

Certiorari - Mining Warden - Application for exemption from expenditure conditions - Order that applicant provide further and better particulars - Warden sitting in administrative capacity - Whether power to make order - Whether arguable case for order nisi

Legislation:

Mining Act 1978 (WA)

Mining Regulations

Result:

Order nisi for certiorari should issue

Representation:

Counsel:

Applicant: Mr M T McKenna
Objector: Mr M P Workman

Solicitors:

Applicant: Hunt & Humphry
Objector: Michael Workman

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

Ex parte Peko Exploration Ltd v GHK Mining Pty Ltd, unreported; FCt SCt of WA; Library No 970613; 14 November 1997
Re Calder; ex parte Gardner (1999) 20 WAR 525
Re Malley SM; ex parte Gardner [2001] WASCA 29
Savage v Teck Explorations Ltd, unreported; FCt SCt of WA; Library No 7285; 16 September 1988

Case(s) also cited:

Gardner v WMC Resources Ltd [2000] WASC 59
Perpetual Trustees WA Ltd v City of Joondalup, unreported; SCt of WA (McKechnie J); Library No 990195; 16 April 1999
Re Capobianco, Principal Building Surveyor of the City of Melville; Ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1008

ROBERTS-SMITH J: This is an application for an order nisi a writ of certiorari to quash a decision made by a Mining Warden sitting at Karratha on 1 May 2001 ordering that the applicant provide further and better particulars of its application for exemption from expenditure conditions in respect of a mining lease held the applicant ("the mining lease"). The ground on which the application is made is that the learned Warden erred in the purported exercise of his jurisdiction under the Mining Act 1978 (WA) by finding that he had the power to order that the applicant provide the particulars.
Although strictly speaking the application was made ex parte, the notice of originating motion dated 8 June 2001 was in fact served on the objector, David Guests, as was the affidavit of Abigail Webster in support, sworn 8 June 2001 and Mr Guests (who in these reasons I will describe as "the objector") was represented on the hearing of the application by Mr Workman.
Plutonic Operations Ltd ("Plutonic") is the registered holder of Mining Lease 47/223. Plutonic is a related company of Homestake Gold of Australia Ltd ("Homestake") which has the responsibility for managing mining tenements held by companies within Australia related to it, including Plutonic.
Ms Webster is the legal counsel and company secretary of Homestake. According to her affidavit, on 29…

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 Guests

Details

AGLC: Re Guests [2001] WASC 158
Case: [2001] WASC 158
Decision Date

CaseChat Overview and Summary

In the case of Re Guests, the parties involved were Guests and Plutonic Resources Limited, with the dispute centering around the issuance of an order nisi for certiorari by the Supreme Court. This application sought to challenge a decision made by the Warden of the Mining Division, who had ordered Guests to provide further particulars for their exemption application under the Mining Act 1978. The applicant, Guests, argued that the Warden lacked the authority to demand additional information as they were operating in an administrative capacity and not a judicial one. The core legal issue the court needed to address was whether the Warden had the power to require further particulars in an administrative proceeding and, if so, whether this action could be quashed by certiorari.

The court considered the nature of the Warden's role and the legal principles governing administrative decisions. It was established that the Warden's function in handling exemption applications was administrative rather than judicial, as affirmed by previous cases such as Re Calder; ex parte Gardner and Re Malley SM; ex parte Gardner. Given this, the court had to determine if the Warden's demand for further particulars could be considered an exercise of judicial power. The applicant argued that such an order was beyond the Warden's administrative powers and should not be allowed. The court found that while the Warden's role was indeed administrative, the requirement to provide further particulars could be seen as an administrative action rather than a judicial one, and thus within the Warden's powers.

In conclusion, the court decided that the Warden had the authority to order further particulars as part of the administrative process, and therefore, the application for an order nisi for certiorari was not arguable. Consequently, the order nisi was refused. The decision underscored the distinction between administrative and judicial functions in the context of mining exemption applications and reinforced the principle that the Warden, while operating administratively, has certain powers to ensure that applications are adequately detailed and complete.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The principles to be applied on such an application are clear. To obtain an order nisi under O 56 Rules of the Supreme Court, the applicant need only show there is an arguable case for the relief sought: Savage v Teck Explorations Limited, unreported; FCt SCt of WA; Library No 7285; 16 September 1988. Although such an application may be made ex parte (O 56 r 1) in fact the documents were served on the objector's solicitor and he appeared on the hearing to oppose the application. His submission is that the application for certiorari could not possibly succeed - there is no arguable case - and so the order nisi must be refused. On the other hand, the applicant urges upon me that in the circumstances the application for certiorari would inevitably succeed and so the order nisi should issue. To understand the submissions advanced on the hearing for the order nisi it is necessary to refer to Plutonic's Exemption Application. That was dated 29 January 2001. It seeks exemption from the obligation to expend $11,000 each year for the three years 2000, 2001 and 2002. The application is in Form 18 as prescribed under s 102 of the Mining Act and reg 54 of the Mining Regulations. Under the heading "Exemption Details", item (g) requires "reasons for exemption". That block has been completed as follows:"Sections 102(2)(b), 102(2)(e) and 102(7) of the Mining Act 1978That time is required to evaluate work done on the mining tenement, to plan future exploration or mining or raise capital therefor. That the ground the subject of the mining tenement contains a mineral deposit which is uneconomic but which may reasonably be expected to become economic in the future or that at the relevant time economic or marketing problems are such as not to make the mining operations viable." It is apparent that the words there set out are drawn directly from the statutory provisions to which reference is made. The applicant seeks to argue before the Full Court that the Warden had no power to order the provision of further and better particulars of its application. The assumption underlying this proposition is that in making the order, the Warden was purporting to exercise the judicial power of a Mining Warden under the Act. So it is that the applicant submits that when hearing an application for exemption or an objection to such an application and/or a plaint for forfeiture of a mining lease, a Warden sits in an administrative and not a judicial capacity. There can be no doubt now that such is the case: Re Calder; ex parte Gardner (1999) 20 WAR 525 as affirmed by a Full Bench of five Judges in Re Malley SM; ex parte Gardner [2001] WASCA 29. The applicant's argument in light of those authorities will be that Part VII of the Mining Act 1978 does not apply to the present proceedings and thus nor are the Local Court Rules imported under s 136 of that Act. It will be further submitted the Mining Warden sitting administratively is not a court and cannot exercise any inherent jurisdiction in that regard. On these premises it will be contended that the Warden had no power to order the provision of further and better particulars. Put in this way, the applicant's case that the Warden had no power to make the order is patently arguable.