Re Malley; Ex parte Gardner

Case [2001] WASCA 29

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   RE MALLEY SM; EX PARTE GARDNER [2001] WASCA 29

CORAM:   MALCOLM CJ

OWEN J
PARKER J
WHEELER J
McKECHNIE J

HEARD:   18 SEPTEMBER 2000

DELIVERED          :   14 FEBRUARY 2001

FILE NO/S:   CIV 1143 of 2000

MATTER                :Application for a Writ of Certiorari against S R Malley SM of the Warden's Court, Perth

EX PARTE

ROBERT CHARLES GARDNER
Applicant

AND

WMC RESOURCES LTD
Respondent

Catchwords:

Mining Act - Warden in open court - Power to issue subpoena - Issue estoppel - Whether party bound by previous Full Court decision

Legislation:

Mining Act 1978

Evidence Act 1906 WA
Interpretation Act 1984 WA

Mining Regulations 1981 WA

Result:

Order nisi discharged

Representation:

Counsel:

Applicant:     Mr J Gilmour QC & Mr M D Howard

Respondent:     Mr C L Zelestis QC & Mr M T McKenna

Solicitors:

Applicant:     Hotchkin Hanly

Respondent:     Hunt & Humphrey

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

Blair v Curran (1939) 62 CLR 464

Bridal Fashions Pty Ltd v Controller‑General of Customs (1996) 17 WAR 499

Carter v Malleson Stephen Jaques (1994) 11 WAR 159

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

Coumbe v Sanidine NL, unreported; SCt of WA; Library No 6053; 21 October 1985

Dawkins v Lord Rokeby (1872-3) 8 LRQB 255

Earl of Mexborough v Whitwood Urban District Council [1897] 2 QB 111

Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477

Gardner v WMC Resources Ltd [2000] WASC 59

Jackson v Goldsmith (1950) 81 CLR 446

Kavanagh v Claudius (1907) 9 WAR 55

Murphy v Abi‑Saab (1995) 37 NSWLR 280

Nguyen v Nguyen (1989) 169 CLR 255

Port of Melbourne Authority v Anshun (1981) 147 CLR 589

Re Burton; Ex parte Roberts (1997) 18 WAR 379

Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343

Re Calder; Ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525

Re Minister for Mines, Fuel and Energy; Ex parte Trythll (1991) 7 WAR 375

Re Smith; Ex parte Rundle (1991) 5 WAR 295

Smith v Leibig (1925) 26 WALR 10

Sparks v Bellotti [1981] WAR 65

State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29

Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96

Wentworth v Woollahra Municipal Council (1982) 149 CLR 672

Westside Mines Pty Ltd v Tortola Pty Ltd [1985] WAR 343

Case(s) also cited:

Re Warden Boothman; Ex parte Optimim Resources Pty Ltd v Kalgoorlie Consolidated Gold Mines Pty Ltd, unreported; SCt of WA; Library No 970347; 11 July 1997

Ridge v Baldwin [1964] AC 40

  1. MALCOLM CJ:  This is the return of an order nisi for a writ of certiorari made by Scott J on 14 March 2000 upon the application of the applicant by which it was relevantly ordered that:

    "1.His Worship S R Malley SM do show cause before the Full Court of this…

Continue reading Re Malley; Ex parte Gardner

Sign in free to access the full text

Details
AGLC
Re Malley; Ex parte Gardner [2001] WASCA 29
Case
[2001] WASCA 29
Decision Date

CaseChat Overview and Summary

In the matter of Re Malley; Ex parte Gardner, the parties were involved in a dispute regarding the powers of a Warden under the Mining Act. The Full Court was tasked with determining whether a Warden had the authority to issue subpoenas during proceedings held in open court. The court was also required to consider whether a party could be estopped from challenging the Warden's actions based on a previous decision of the Full Court.

The primary legal issues the court had to address were whether the Warden's authority to issue subpoenas extended to proceedings in open court and whether a party could be bound by a previous Full Court decision that did not explicitly address the issue of subpoena issuance. The court had to interpret the relevant provisions of the Mining Act and the Evidence Act 1906 to ascertain the Warden's powers and the scope of judicial proceedings in open court.

The court reasoned that the term "evidence" in the Mining Act and the Mining Regulations implied that the Warden could receive sworn testimony, aligning with the definitions in the Evidence Act 1906. The court noted that the Warden was required to sit in open court, which was deliberate and distinct from public or private settings. The inclusive definition of "proceedings" in the Evidence Act meant that the Warden's hearing of an application for an exemption was a judicial proceeding. The court concluded that the Warden had the authority to issue subpoenas in such proceedings because the Evidence Act preserved the common law rules of compellability. The court also found that the party could not be estopped by a previous Full Court decision that did not explicitly address the issuance of subpoenas.

The court's final orders affirmed that the Warden had the authority to issue subpoenas in open court proceedings and that the party was not estopped from challenging the Warden's actions based on the previous Full Court decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The use of the word "evidence" in the Mining Act and the Mining Regulations is significant. It connotes the oral testimony of witnesses sworn to give evidence under the provisions of the Evidence Act 1906. It is also significant that the Warden is required to sit in open court rather than in public or in private. Parliament's reference to court is deliberate.(b)The Evidence Act 1906 Within the Evidence Act 1906, s 3, there are a number of relevant definitions -" 'legal proceeding' or 'proceeding' includes any action, trial, inquiry, cause, or matter, whether civil or criminal, in which evidence is or may be given, and includes an arbitration;"" 'person acting judicially' means any person having, in Western Australia, by law or by consent of parties, authority to hear, receive, and examine evidence;" It is to be observed that the definition of "proceedings" is inclusive. By application of the ejusdem generis principle, I would include a hearing in support of an application for an exemption as encompassed within the word "proceedings". There is a matter in dispute at which evidence is given. It is an inquiry into the application and objection, albeit that one person receives "the evidence" while another makes a decision. The application is heard in court. By virtue of the Mining Act provisions and regulations set out above, a Warden in open court has authority to receive evidence and is a person acting judicially. So much is not in conflict with Ex parte Gardner, as Ipp J considered that when acting administratively in open court the Warden was required to act judicially (at 529). The Evidence Act, s 5, provides that the provisions are in addition and not in derogation of any powers, rights or rules of evidence existing at common law or given by any law at any time in force in the State not inconsistent with the provisions of the Evidence Act. At common law, there were a range of persons who were compellable witnesses, some witnesses who were competent but not compellable and some who were not competent. The Evidence Act, and in particular s 6, s 7 and s 8, may be seen to be remedial in nature. The provisions do not remove the general common law rules of compellability in respect of persons who might be able to give relevant testimony. Rather, such rights are preserved. By the Evidence Act, s 97, in any inquiry or examination before any person acting judicially, every witness (subject to certain immaterial exceptions) shall give evidence on oath. So the question arises, how is a person who may have relevant evidence to give in support of an application for an exemption or an objection compelled to attend? Clearly, Parliament had in mind the prospect that evidence may be given before a Warden in open court. The Mining Act, s 102(2), sets out a range of reasons for which a certificate of exemption may be given. The list is not exhaustive. Some reasons there enumerated would seem to require substantial evidence on occasion if there is an objection. The answer is the ancient writ of subpoena, a Latin phrase in general use which means literally "under penalty".

Decision

Reasons for decision

OWEN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: OWEN J

Full text does not contain this section.