Re Her Honour Warden Richardson SM;
[2006] WASC 192
RE HER HONOUR WARDEN RICHARDSON SM; EX PARTE PRECIOUS METALS AUSTRALIA LTD [2006] WASC 192
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 192 | |
| Case No: | CIV:1443/2006 | 16 AUGUST 2006 | |
| Coram: | BLAXELL J | 31/08/06 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Orders nisi for writs of Mandamus and Certiorari | ||
| B | |||
| PDF Version |
| Parties: | PRECIOUS METALS AUSTRALIA LTD WMC RESOURCES LTD |
Catchwords: | Prerogative writs Prohibition, Mandamus, and Certiorari Applications for orders nisi Whether or not an arguable case for each Mines and minerals Mineral claims granted under Mining Act 1904 continuing in force under s 5 of Mining Act 1978 Applications for exemption from labour conditions Lodgment of objections after time fixed by Mining Registrar Whether or not objections validly lodged Whether or not Warden had power to extend time |
Legislation: | Mining Act 1904 - 1968 (WA), s 26, s 31, s 32, s 232 and s 241 Mining Act Regulations 1925 - 1968 (WA), reg 50, reg 55, reg 172, reg 173 and reg 242 |
Case References: | Hazlett v Rasmussen [1973] WAR 141 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Murphy v McNair (1905-1906) 8 WALR 140 R v Harlock [1974] WAR 101 Re Calder; Ex parte Gardner (1999) 20 WAR 525 Re Capobianco; Ex parte Castelli, unreported; SCt of WA; Library No 980567; 25 September 1998 Smith v Liebig [1923] WAR 26 Attorney-General v Cohen [1937] 1 KB 478 Bakker v City of Nedlands [2005] WASAT 106 Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 Craig v South Australia (1995) 184 CLR 163 Director of Public Prosecutions v Fowler (1984) 55 ALR 175 Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493 King-Brooks v Roberts (1991) 5 WAR 500 Minister for Immigration and Ethnic Affairs v Bardwarj (2002) 209 CLR 597 Minister for Immigration and Ethnic Affairs v Watson [2005] FCFCA 181 Parkes Rural Distributions v Glasson (1986) 7 NSWLR 332 Precious Metals Australia Ltd v Western Mining Resources Ltd [2006] WAMV 6 R v Judges of Federal Court of Australia (1979) 143 CLR 190 Re Thomas [1900] 1 Ch 454 Re Western Australian Planning Commission; Ex parte South Fremantle/Hamilton Hill Residents' Association Inc [2005] WASC 50 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
PRECIOUS METALS AUSTRALIA LTD
Applicant
AND
WMC RESOURCES LTD
Respondent
Catchwords:
Prerogative writs - Prohibition, Mandamus, and Certiorari - Applications for orders nisi - Whether or not an arguable case for each
Mines and minerals - Mineral claims granted under Mining Act 1904 continuing in force under s 5 of Mining Act 1978 - Applications for exemption from labour conditions - Lodgment of objections after time fixed by Mining Registrar -
(Page 2)
Whether or not objections validly lodged - Whether or not Warden had power to extend time
Legislation:
Mining Act 1904 - 1968 (WA), s 26, s 31, s 32, s 232 and s 241
Mining Act Regulations 1925 - 1968 (WA), reg 50, reg 55, reg 172, reg 173 and reg 242
Result:
Orders nisi for writs of Mandamus and Certiorari
Category: B
Representation:
Counsel:
Applicant : Mr S K Dharmananda & Mr R M Edel
Respondent : Mr G R Donaldson SC
Solicitors:
Applicant : Gadens Lawyers
Respondent : Blake Dawson Waldron
Case(s) referred to in judgment(s):
Hazlett v Rasmussen [1973] WAR 141
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Murphy v McNair (1905-1906) 8 WALR 140
R v Harlock [1974] WAR 101
Re Calder; Ex parte Gardner (1999) 20 WAR 525
Re Capobianco; Ex parte Castelli, unreported; SCt of WA; Library No 980567; 25 September 1998
Smith v Liebig [1923] WAR 26
(Page 3)
Case(s) also cited:
Attorney-General v Cohen [1937] 1 KB 478
Bakker v City of Nedlands [2005] WASAT 106
Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1
Craig v South Australia (1995) 184 CLR 163
Director of Public Prosecutions v Fowler (1984) 55 ALR 175
Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493
King-Brooks v Roberts (1991) 5 WAR 500
Minister for Immigration and Ethnic Affairs v Bardwarj (2002) 209 CLR 597
Minister for Immigration and Ethnic Affairs v Watson [2005] FCFCA 181
Parkes Rural Distributions v Glasson (1986) 7 NSWLR 332
Precious Metals Australia Ltd v Western Mining Resources Ltd [2006] WAMV 6
R v Judges of Federal Court of Australia (1979) 143 CLR 190
Re Thomas [1900] 1 Ch 454
Re Western Australian Planning Commission; Ex parte South Fremantle/Hamilton Hill Residents' Association Inc [2005] WASC 50
(Page 4)
1 BLAXELL J: This is an application for orders nisi for prerogative relief in respect of a decision made by the Warden of the Meekatharra Warden's Court on 12 April 2006 concerning Applications for Exemption ME 78/056 and LE 195/056.
2 The applications for exemption related to a group of 185 mineral claims straddling the boundary between the Meekatharra and Leonora mineral fields which were granted to the respondent ("WMC") under the Mining Act 1904-1968 ("the 1904 Act") prior to the commencement of the Mining Act 1978 ("the 1978 Act"). As the mineral claims are subject to the Uranium (Yeelirrie) Agreement Act 1978 they have continued in force pursuant to s 5 of the 1978 Act.
3 The mineral claims contain a proven uranium ore body, but WMC has been unable to proceed with development by reason of Federal and State government policies concerning the mining of that mineral. Consequently, WMC has since 1974 regularly applied for and obtained six monthly exemptions from working conditions. The applicant ("PMA") has sought to object to the last of these applications (which seek continuing exemption for the period between 29 October 2005 and 28 April 2006).
4 PMA wishes to acquire the ground the subject of the mineral claims for the purposes of mining vanadium, and in late 2005 it approached WMC with a view to purchasing the tenements. However when this overture was rejected, PMA lodged plaints for forfeiture of the mineral claims (on the grounds that they were not being worked) and took steps towards objecting to the applications by WMC for continuing exemptions.
5 PMA lodged its plaints for forfeiture on 9 November 2005 at which time WMC's most recent applications for exemption (lodged with the Meekatharra and Leonora Mining Registrars respectively on 11 August and 24 October 2005) were still to be heard. PMA then lodged objections to those applications on 17 November 2005 which was 78 days (at Meekatharra) and 8 days (at Leonora) after the dates set by each Mining Registrar for the receipt of such objections.
6 The Warden subsequently held that the objections had not been validly lodged and refused applications by PMA for extensions of time. It is essentially that decision which gives rise to the present application.
7 It is relevant to note that WMC's applications for continuing exemptions are made on the grounds that the Yeelirrie uranium project is not "economically viable" and that it is neither "practicable nor justifiable
(Page 5)
- to comply with the labour covenants". However, PMA contends that it would be economically viable to mine the mineral claims for vanadium.
The broad scheme and relevant provisions of the 1904 Act
8 In order to understand the issues raised by the present application it is necessary to outline the broad scheme of the 1904 Act and the particular provisions that are relevant to WMC's applications for exemption.
9 The 1904 Act provided for two categories of mining tenements which authorised the holder to prospect or remove ore. Firstly there were mining leases as provided for in Pt V of the Act. Secondly there were all of the remaining mining tenements as set out in regs 5 - 55 inclusive, each of which was a "claim" as defined in s 3 of the Act. A significant difference between the two types of tenements was that a mining lease could be granted to any person, whereas a "claim" could only be obtained by a "miner" holding a "miner's right".
10 The source of title for each group of tenements also differed. The title to a mining lease was acquired by way of, and at the time of, grant by the Minister. However, the title to a "claim" was acquired at the time of marking off the ground pursuant to the scheme to be found in s 26(1), s 28, and s 31. The key provision was s 31 which provided:
"31. (1) Any person taking up and occupying Crown land by virtue of a miner's right shall, subject to the provisions of this Act and the regulations, be deemed in law to be possessed (except as against His Majesty) of such land so taken up and occupied; and
(2) All gold and minerals found upon any land so taken up and occupied for the purpose of mining for gold, and all minerals found upon any land so taken up and occupied for the purpose of mining for minerals, shall be the absolute property of the holder of such miner's right in lawful occupation of such land."
11 The required method of "taking up and occupying" Crown land was for the miner to mark out the ground in accordance with regs 147 - 152. Not all "claims" so occupied had to be registered, and under reg 40, a miner properly marking out an alluvial claim was thereafter "possessed of the land against everyone" (Murphy v McNair (1905-1906) 8 WALR 140, 142).
(Page 6)
12 In respect of all other claims (which were required to be registered) the scheme was one "for the registration of title and not for title by registration", with "no investing effect" by registration itself (Hazlett v Rasmussen [1973] WAR 141, 144 and 145).
13 Applications for registration of claims and objections to registration were made and determined in accordance with regs 153 - 163. In Hazlett (at 145 -146) it was held that a Warden hearing such an application and objection was sitting administratively and not as a "Warden's Court" under s 230 of the Act.
14 When sitting as a "Warden's Court" under the 1904 Act, the Warden had the full range of judicial powers including all of the powers of the Supreme Court (s 249). These powers obviously included a discretion in appropriate circumstances to extend time for the lodgement of documents.
15 As to the work conditions imposed by the 1904 Act, reg 50 required every claim to be worked continuously and efficiently on every working day unless exemption was granted. Pursuant to reg 183, a mining tenement was considered to be efficiently worked when the "requisite number of men" were "engaged bona fide in working thereon for eight hours every working day except Saturday, when four hours shall be sufficient". Failure to comply rendered the claim liable to forfeiture at the discretion of the Warden upon the plaint of any miner issued under reg 179.
16 The number of men required to work mineral claims was specified by regs 55(11) and 54(8) to be "three men for every integer of 100 acres or part of that area". However, when adjoining mineral claims were amalgamated, reg 54(8) enabled the miner to instead "continuously employ machinery and equipment to the value of $4000 for every integer of 100 acres ... ".
17 In the present instance, WMC's mineral claims are not amalgamated and it is the first of the above obligations which applies. Accordingly, and on the assumption that each mineral claim is 300 acres in area, the requirement is that a total of 1665 men (spread out nine per claim) be working "continuously and efficiently" for 44 hours per week. In R v Harlock [1974] WAR 101, the impracticalities of this obligation in similar circumstances led Hale J (at 102) to refer to "the futility of this requirement in present day conditions".
18 Section 32 and regs 171 - 174 allowed the granting of exemptions from working conditions for maximum periods of six months in respect of
(Page 7)
- "any land held under a miner's right". Regulation 172 specified the formalities to be complied with by an applicant for exemption and also provided that:
"Any person may lodge an objection to the application within the time fixed by the Warden." (My emphasis.)
"242. The Mining Registrar of any goldfield, mineral field, or district shall have power, during the absence of the Warden, and when no objection is lodged, to grant and register any mining tenement (except a lease or residence or business area) or any transaction affecting the same; and to grant an interim injunction and also to hear and determine applications for exemptions when so instructed by the Minister in every case in which the Warden is empowered so to do."
20 Regulation 173 required that the Warden "shall, in open court, receive evidence on oath in support of the application and of any objection thereto, and may in his discretion grant the same ... ". That discretion to grant exemption was very wide and could be exercised on "cause shown to the satisfaction of the Warden" (reg 171).
21 Apart from these general provisions (and somewhat confusedly), there was also specific provision in subreg 55(12) for the Minister "by a licence under his hand" to "dispense with the performance of the condition to work the mineral claim". As with an exemption granted by the Warden, such a licence could be for a period not exceeding six months.
22 Pursuant to reg 177, an application for dispensation "shall be lodged in writing addressed to the Minister, and if the application is granted, the Minister shall thereupon issue to the applicant a licence ... ". It is interesting to note that the Minister's power to grant a dispensation was not as wide as the Warden's discretion to grant an exemption. A licence was only to be granted if the Minister "is satisfied that the claim holder has made reasonable efforts to work and develop the claim, and that continued working would result in unnecessary loss to the claim holder".
(Page 8)
The Warden's reasons for decision
23 Prior to hearing WMC's applications for exemption, the learned Warden (by consent) received written submissions and determined the threshold question of whether PMA was also entitled to be heard. In this regard, and as already noted, PMA's objections to WMC's applications were lodged after the times fixed by the Mining Registrars for receipt of the same.
24 In fully considered reasons for decision, her Honour noted that she had been absent from Meekatharra and Leonora when each of WMC's applications had been lodged. Furthermore, as the grant or otherwise of an exemption would clearly "affect" a mineral claim, each application was a "transaction affecting (any mining tenement)". Therefore, and in accordance with reg 242:
" ... The Mining Registrars at each of those registries were effectively delegated with the authority of the Warden to fix the time for receipt of objections to the applications, this being the function of the Warden if she was in attendance at the registry at the time of receipt of the applications."
25 The learned Warden then considered whether she had any power to extend the time for lodgement of objections and ruled that she did not. In this regard, the reference in reg 173 to evidence being received in "open court" did not mean that the Warden was thereby acting judicially. Her Honour found support for this view from the authorities of Smith v Liebig [1923] WAR 26 and Re Calder; Ex parte Gardner (1999) 20 WAR 525. Section 241 of the 1904 Act allowed a Warden to extend time when acting judicially, but there was no similar power in respect of the Warden's functions when acting administratively.
26 Accordingly, it was not open to her Honour to consider the objections lodged by PMA.
The issues raised on the present application
27 PMA contends that the outcome of the present application for prerogative relief largely turns upon the following three questions:
(1) Regulation 172 provides that a person may lodge an objection to an exemption application "within the time fixed by the Warden". Under reg 242, the Mining Registrar can do certain things, concerning the grant and register of tenements, during a Warden's absence, and can
- "hear and determine applications for exemptions when so instructed by the Minister". In view of the terms of reg 242, can a Mining Registrar fix the time for the lodgement of objections in the face of reg 172?
- (2) The Warden has a number of powers, enabling control over proceedings in Warden's Court or open court. The Warden held that, in acting administratively in dealing with exemption applications, there was no power to extend time to lodge objections? Regardless of the capacity in which the Warden acts or the designation of the forum as "open court" or "Warden's court", these powers and the Interpretation Act apply. Did the Warden have power to extend time?
(3) Regulations 177 and 55(12) require an application for dispensation from work conditions based on (prospective) economic considerations to be lodged with the Minister. Applications to the Warden are based on considerations similar to the factors in s 92 of the 1904 Act, raising matters for historical fact-finding. WMC's Exemption Applications assert that work is not justifiable or economically viable; that is, it would cause WMC unnecessary loss. They were lodged with the Warden. Was this the proper course?
The test to be applied on the present application
28 I respectfully adopt the following statements of principle as outlined by Parker J in Re Capobianco; Ex parte Castelli, unreported; SCt of WA; Library No 980567; 25 September 1998:
"The authorities make it clear that it is necessary for the applicant who seeks an order nisi for prohibition to demonstrate that there is an arguable case: Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 per Diplock LJ at 643-644; Talbot v Lane (1994) 14 WAR 120 per Malcolm CJ, Kennedy and Ipp JJ agreeing, (at 152). As was made clear in that decision, at the order nisi stage:
'The court should not go into the matter in depth but should consider on a perusal of the material then available
- whether it discloses an arguable case for the relief claimed'.
- At 152 of the report of that decision there was express acceptance of passages from the decision of Lord Diplock that the purpose of the order nisi or threshold stage, is to 'prevent the time of the court being wasted by busy-bodies with misguided or trivial complaints of administrative error ... ' and that an order nisi ought ordinarily to be granted if 'on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief claimed .... '. As was made clear at 153 of the report, it remains open to refuse an order nisi where there is no merit in the application.
It will be apparent from this brief reference to settled authority that the threshold test which the applicant must satisfy is quite low. It is sufficient that the case is merely capable of being argued and it is not necessary for the applicant to show that the case have some reasonable or real prospect of success;"
Whether there is an arguable case
29 The first substantial issue on which PMA needs to show an arguable case concerns the Mining Registrars' role in fixing the periods for lodgement of objections to WMC's applications for exemption. As reg 172 required the Warden to fix that period, the only question is whether reg 242 enabled the Mining Registrars to exercise that power in the absence of the Warden.
30 When one looks at the range of delegated functions in reg 242 a power to fix time for lodgement of objections would very sensibly fit amongst them. This would also be consistent with the apparent object of reg 172 that other miners with a potential interest in the proposed exemption should have notice of the applications and of the time for lodgement of objections. Because of the usual absence of the Warden from particular registries a delegated power to the Mining Registrars would greatly facilitate the required procedures as to notice.
31 However, a construction of reg 242 which enables a Mining Registrar to exercise the Warden's power, will only be open if the fixing of time to lodge objections can be said to "grant and register ... any transaction affecting" the mineral claim. Without deciding the issue, this construction would seem to be a strained one, and in my view PMA does
(Page 11)
- have an arguable case that the Mining Registrars did not have the power that they purportedly exercised.
32 A consequence of the Mining Registrars lacking such power would be that no period for lodgement of objections would ever have been validly fixed. In those circumstances, reg 172 could only be complied with if the Warden fixed a time and then adjourned the hearing so that proper notice to other miners could be validly given. Self-evidently, this would enable PMA to have its objections heard.
33 If on the other hand, the Mining Registrars did validly fix the time for lodgement of objections, the next substantial issue is whether the Warden had power to extend that time. This issue turns (primarily) upon whether or not the Warden was sitting as a "Warden's Court" when hearing the applications and objections.
34 I have referred earlier to the decision in Hazlett (supra) where the Full Court considered the nature of a Warden's functions when hearing an application for, and objection to, registration of a mineral claim. Subregulation 55(7) required that the application and objection be heard in "open Court" and that the Warden submit a recommendation to the Minister who then had a total discretion to grant or refuse the application. Wickham J (with whom Virtue J agreed) held at 146:
"The part played by the warden in this process is that of an official functionary, and is separate from his powers when sitting as a Warden's Court under s 230 of the Act. The Warden's Court under s 232 has an extensive civil jurisdiction in mining matters, including a wide jurisdiction in equity, and its remedial powers within the ambit of its jurisdiction are as extensive as those of the Supreme Court: s 249. The difference between these heads of jurisdiction and these powers of the warden as a Warden's Court on the one hand and the functions required to be performed by him under reg 55 on the other speaks for itself, but are further highlighted by the appellate provisions of the Act: ss 257 et seq."
35 As can be seen from reg 173, the procedure on applications for exemption is similar to that on applications for registration in that the hearing is to be in "open Court". However, there is also a significant difference, because the Warden's function on applications for exemptions (in respect of mineral claims) is not to make a recommendation to the Minister, but to decide the application. Accordingly, the Warden's role is
(Page 12)
- determinative rather than recommendatory, and this is an important point of distinction from the proceedings dealt with in Hazlett (supra). Similarly, Smith v Liebig (supra) does not provide any useful guidance in the present matter because the Warden in that case was considering whether or not to recommend the granting of a lease (which was a role analogous to that in Hazlett).
36 The decision in Re Calder (supra) although concerned with the 1978 Act, is an authoritative summary of the general principles that have equal application to the relatively similar provisions of the 1904 Act. In particular, much of what Ipp J had to say about s 132(1) of the 1978 Act can be repeated with equal force in respect of s 232(12) of the 1904 Act.)
37 It seems to me that the reasoned analysis by Ipp J in Re Calder at [7] - [11], and [25] - [26] also applies to the equivalent provisions of the 1904 Act. In my view, it is also significant that s 266 of the 1904 Act provided that there shall be no appeal:
"(3) from any decision, order, or recommendation of the warden upon any application for a mining tenement, the forfeiture thereof, or exemption from labour or other conditions."
- Section 266 also differentiated the above decisions, etc, "of the warden" from certain other judgments or orders "of the Warden's Court" in respect of which leave to appeal was required by subs (2). This distinction lends validity to a differentiation of the Warden's various functions in accordance with the analysis to be found in Re Calder (supra).
38 In my opinion, a Warden determining an application for exemption in respect of a mineral claim under the 1904 Act is making an administrative decision while at the same time acting judicially and sitting "in open Court". There is nothing unusual about a court functioning in this way and it is similar to the role traditionally played by Magistrates when conducting committal hearings in indictable matters. I can see no basis for the argument that while acting in this capacity, the Warden is sitting in a "Warden's Court" and exercising jurisdiction under s 232.
39 PMA nevertheless contends that s 48 of the Interpretation Act enables the Warden hearing an application for exemption to extend the time for lodgement of objections. Section 48 provides that:
(Page 13)
- "Where a written law confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires."
- This provision is designed to overcome the functus officio rule, namely that a person exercising a statutory power exhausts that power once it is exercised for the first time. In this regard, Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 211, noted that:
"There was 'an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise': Halsbury's Laws of England (1st ed), Vol 27, p 131. However, s 33(1) of the Acts Interpretation Act 1901 (Cth) (which was modelled upon s 32(1) of the Interpretation Act 1889 (UK)) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed 'from time to time as occasion requires'. But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue."
(Page 14)
- posting would not affect publicity". The regulation does not limit the time at which such power of dispensation may be exercised.
41 This raises the question of what is to happen if the Warden at the hearing refuses to grant such dispensation. Presumably, the hearing would need to be adjourned so that this particular requirement could be complied with. However, reg 172 also requires that the copy of the application posted on the mining tenement be "kept legible and intact for a period of 14 clear days before the hearing", to ensure that there is adequate notice.
42 It is certainly arguable that in these circumstances the Warden necessarily has the power to fix a new time for lodgement of objections as otherwise the necessary publicity could not be effected. It follows that PMA has an arguable case that s 48 of the Interpretation Act enables the Warden to fix the period for lodgement of objections "from time to time as occasion requires".
43 The final issue of substance concerns subreg 55(12) and the separate power of the Minister to grant a dispensation from labour conditions by the issue of a licence. In my view nothing turns upon the fact that WMC appears to have grounded its applications for exemption upon the provisions of this subregulation. The Warden has a very wide discretion, and there is no reason why satisfaction as to the prospective economic unviability of mining would not amount to sufficient "cause" for exemption to be granted.
44 However, PMA contends that on a proper construction of reg 55, the presence of a particular process of dispensation from labour conditions under subs (12) indicates that the general procedures for exemption are not available to holders of mineral claims. In other words, the availability of a specific procedure for dispensation by the Minister is incompatible with there also being an entitlement to apply for an exemption to be granted by the Warden.
45 This is obviously an issue of construction turning on the question whether subreg 55(12) provides a separate and distinct code for exemption/dispensation from labour conditions in respect of mineral claims.
46 In my view such a construction is not reasonably open because it would contradict the opening words of reg 171 (viz: "The holder of any mining tenement ... may obtain exemption ... "). I also cannot see any reason why the power of the Minister to grant dispensation cannot
(Page 15)
- co-exist with the power of the Warden to grant exemption. It is simply an alternative and parallel procedure whereby the holder of a mineral claim may obtain what is essentially the same relief from potential forfeiture.
47 From the point of view of prospective plaintiffs seeking forfeiture the availability of dispensation under subreg 55(12) is unsatisfactory, because the application is not made publicly and there is no requirement for notice as in reg 172. However this is a disadvantage that is present regardless of whether or not subreg 55(12) constitutes a code, and cannot assist in the present question of construction.
48 In my view PMA does not have an arguable case in respect of subreg 55(12).
Conclusions
49 For the above reasons there will be orders as follows:
1. Her Honour S P Richardson SM show cause before the Court of Appeal on a date and time to be set as to why a writ of Mandamus should not issue directing her Honour to accept as validly lodged the objections to the applications submitted by the applicant and both dated 15 November 2005 (Objections) on the ground that her Honour erred in holding that time had properly been set for the lodgement of objections when it had not.
PARTICULARS
- The Warden held the Mining Registrar had the power under reg 242 to set the time for the lodgement of objections under reg 172 whereas only the Warden has the power to set the time for the lodgement of objections.
2. Her Honour S P Richardson SM show cause before the Court of Appeal on a date and time to be set as to why a writ of Certiorari should not issue to remove into this Court for the purpose of being quashed an order made on the 12th day of April 2006 by her Honour sitting as the Warden of Mines in Meekatharra dismissing an application for an extension of time to lodge the Objections on the ground that her Honour erred in holding that she had no power to extend time.
(Page 16)
- The Warden held she did not have the power to set the time for the lodgement of objections in circumstances where the time for the lodgement of objections had previously been set whereas she should have held that, by reason of s 48 of the Interpretation Act (WA), the Warden had the power to again set the time for the lodgement of objections so as to extend the time previously set.
0
14
0