Re Malley; Ex parte Gardner

[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 Honourable Court why a Writ of Certiorari should not be issued against His Worship to remove into this Court for the purpose of being quashed the decision made by His Worship on 6 January 2000 to discharge a subpoena on the ground that the Learned Magistrate erred in the purported exercise of his jurisdiction under the Mining Act 1978 by finding that he did not have power to issue a subpoena because he was exercising the powers of a Warden in the Warden's Court and that he did not have the power to discharge the subpoena.

   2.A copy of this order be served on the Learned Magistrate and WMC Resources Ltd within 7 days of this order.

   3.If either the Learned Magistrate or WMC Resources Ltd wish to be heard before the Full Court, the Learned Magistrate and WMC Resources Ltd have liberty to file and serve any affidavit in relation to these proceedings within 14 days.

   4.The applicant have leave to file any answering affidavits within 14 days of service thereof.

   …

   6.Warden's Court proceedings pursuant to Objection Number 56/967 to Exemption Application 524/967 and Plaint Numbers 31/967 to 33/967 not be listed for trial until this matter be determined."

2. The applicant is the Objector in the matter of application for exemption from expenditure condition 524/967 in respect of mining leases 24/35, 24/36 and 24/37 and objection 56/967.  These applications have been made by WMC Resources Ltd ("WMC").

3. In an earlier application for a writ of certiorari, Re Calder; Ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525, which I will refer to as "Re Calder; Ex parte Gardner (No 1)", the Full Court (Pidgeon, Ipp and Wallwork JJ) discharged an order nisi for a writ of certiorari directed to his Worship Mr Calder SM holding that the learned Warden did not have power to make an order for discovery in proceedings by WMC Resources Ltd pursuant to s 102 of the Mining Act 1978 (WA) ("the Act") for exemption from certain expenditure conditions in connection with the three mining leases to which I have referred. It was submitted in that case that the learned Warden had power under s 136(1) of the Act to make such an order. Section 136(1) 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."

4. Mr Gardner submitted that the learned Warden was sitting as a Warden's Court, the Local Court Rules applied, and those rules empowered his Worship to order discovery. The learned Warden held that, in hearing the application for exemption under s 102, he was not sitting as a Warden's Court; that the Local Court Rules did not apply; and he had no power to order discovery.  It was this decision that was challenged by way of an application for a writ of certiorari in Re Calder; Ex parte Gardner (No 1).

5. Ipp J (with whom Pidgeon J agreed) held in Re Calder; Ex parte Gardner (No 1) that "the Warden" was used in the Act in a number of different contexts. For example, his Honour said at 528:

   "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 part of the Act are blurred in others."

   Ipp J also said at 528 - 529:

   "Before going to the particular sections of the Act, it is helpful to have regard to 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 Gold Mines Pty Ltd (unreported; SCt, 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."

6. The conclusion expressed by Ipp J was that the general intention of the Act was that the Warden, in those instances when required to sit "in open court", was acting in an administrative capacity. His Honour went on to say at 529:

   "Whether, in so sitting, the warden is required to act judicially depends on the nature of the power to be exercised.  See Ridge v Baldwin ([1964] AC 40 at 76), per Lord Reid."

7. Ipp J also referred to the provisions of the Act which referred to the Warden sitting "in open court" and demonstrated by reference to the nature of the particular duties the Warden was required to carry out that, in virtually all instances, an administrative and not a judicial function was being performed, while recognising that in most, if not all, instances the Warden was required to act judicially. It was concluded that in dealing with prospecting licences under s 40 - s 42 of the Act, the Warden was discharging an administrative function, although he or she was required to act judicially in doing so: Re Minister for Mines, Fuel and Energy; Ex parte Trythll (1991) 7 WAR 375; and Westside Mines Pty Ltd v Tortola Pty Ltd [1985] WAR 343.

8. The various 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 have been said to require an entirely ministerial or administrative act and not a judicial act, with the consequence that such a recommendation does not come within "civil proceedings" as referred to in the Act: Smith v Leibig (1925) 26 WALR 10 at 11 per Northmore J; and see Westside Mines Pty Ltd v Tortola Pty Ltd, supra, at 350 per Rowland J.

9. Ipp J concluded at 530 - 531 that the power to recommend conferred on the Warden in s 59(4) was an administrative function, albeit it was required to be performed judicially. The provisions relating to mining leases in s 75 were of the same nature as were all the recommendatory powers of the Warden concerning the grant of mining tenements. Ipp J at 531 went on to consider the provision in s 98 of the Act for applications for the forfeiture of exploration licences and mining leases, where expenditure conditions had not been complied with. Section 98 provides that such proceedings 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. The decision as to whether forfeiture should take place is made by the Minister pursuant to s 99.

10. In Re Calder; Ex parte Gardner (No 1) at par 19, p 531, Ipp J said:

    "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 s 98 … 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 has not been 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."

    Ipp J went on to say at 531:

    "Section 98(4) empowers the warden when 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 than $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 cost powers are ancillary to the power to make recommendations."

11. Ipp J held that, on the hearing of an application for exemption from expenditure under s 102 of the Mining Act 1978 (WA), the Mining Warden was not exercising the jurisdiction of the Warden's Court, but exercising an administrative function as Warden. Further, it was held that references in the Act to the Warden "sitting in open court" were references to the Warden so sitting for the purposes of exercising administrative functions under the Act. Wallwork J reached the same conclusion at 535 - 539. It followed that certiorari would not lie to quash a decision of the Warden refusing to order discovery in relation to the application for exemption for the purpose of making a recommendation to the Minister pursuant to s 102(6) of the Act. In particular, it was held that the power of the Warden to make a recommendation pursuant to s 102(6) of the Act concerning an expenditure exemption was administrative. The same conclusion was reached with respect to the power of the Warden to deal with prospecting licences under s 40, s 41 and s 42 of the Act; sitting in open court and making recommendations to the Minister, for example, in relation to the grant of exploration licences under s 59(4) and mining leases under s 75(4), or the forfeiture of mining leases under s 98. The view was also expressed that while the Warden's power to forfeit prospecting licences in s 96 did not require the Warden to sit in open court, it also involved an administrative function.

12. The Warden, when not exercising the jurisdiction of 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. For example, Ipp J at 533 considered that s 135, s 143(1) and s 146(7) involved the exercise of judicial functions concerning the resolution of disputes, granting injunctions, appointing a receiver and the making of orders for money to be paid into court. By way of contrast, the issue of a Miner's Right and the authorising of prospecting licences under s 20, granting permission to enter private land under s 30(1), and ordering a survey to settle boundary disputes under s 47(1) were administrative functions performed by a Warden, in effect, in private. It followed that, as the Warden was not sitting as a Warden's Court in hearing WMC's application, s 136(1) of the Mining Act did not confer any power on the Warden to order discovery.

13. For the purposes of the return of the order nisi in this case, a request was made by the solicitors for the parties that a bench of five Judges of the Court be constituted for the hearing on the ground that the Court may be called upon to consider the correctness of the earlier decision of the Full Court in Re Calder; Ex parte Gardner (No 1).

14. The first submission made on behalf of the applicant was that:

    "The Full Court's decision in Re Calder; Ex parte Gardner [1999] WASCA 28 was, with respect, incorrect. The terms 'the warden's court' and 'the warden sitting in open court' are used synonymously in the Act. It was not intended by the legislature to differentiate between them, so that in the first case the warden would be performing a judicial function, and in the second a purely administrative function, so conferring no power on the warden to order discovery."

15. As I have indicated previously, the applicant is the objector in the matter of an application for exemption from expenditure conditions 524/967 in respect of mining leases 24/35, 24/36 and 24/37 and objection 56/967.  On or about 18 November 1997 the applicant instructed his solicitors to issue a subpoena to one Michael Elias of WMC Resources Ltd ("WMC").  By a notice of motion dated 17 November 1997 WMC successfully applied for the subpoena to be set aside.  As a result of the decision of this Court on 4 December 1997, in Re Burton; Ex parte Roberts (1997) 18 WAR 379, an application for discovery was then made to Warden Calder on 20 February 1998, who made an order for discovery by consent. WMC provided discovery by affidavit sworn 2 April 1998. An application for further and better discovery was made by the applicant to the Warden, which was unsuccessful.

16. The applicant challenged the decision refusing discovery by way of an application for a writ of certiorari.  That challenge resulted in the decision in Re Calder; Ex parte Gardner (No 1). In that case, the single question determined was whether or not a plaintiff in forfeiture proceedings brought under s 98 of the Act is entitled to obtain an order for discovery of documents under s 136 of the Act, when read with s 66 of the Local Courts Act 1904 (WA), against the holder of a mining lease, when that holder is a company. No issue was raised in that case regarding the power of the Warden to order discovery on the basis that he was exercising an administrative rather than a judicial function. The Warden had said he was bound by the decision of Rowland J in Coumbe v Sanidine NL, unreported; SCt of WA; Library No 6053; 21 October 1985, which also involved a plaint of forfeiture of a mining lease under s 98 of the Act. In that case, the plaintiff sought an order for discovery of documents. On a case stated by the Warden under s 146 of the Act, it was held that it was not open to the Warden to make such an order in respect of a plaint for forfeiture of a mining lease.

17. In Coumbe v Sanidine NL, supra, Rowland J applied the rule of law which prevented the application of any of the procedures with regard to discovery in an action for a penalty by a common informer: Earl of Mexborough v Whitwood Urban District Council [1897] 2 QB 111 at 115, 117 per Lord Esher MR. Rowland J at 4 held that the rule still applied in relation to forfeiture of an interest in land. In Re Burton; Ex parte Roberts (1997) 18 WAR 379, however, Steytler J, with whom Malcolm CJ and Kennedy J agreed, pointed out at 381 - 382 that, since the decision in Coumbe v Sanidine NL, supra, the law has taken a different course commencing with the decision of the High Court in Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96; Bridal Fashions Pty Ltd v Controller‑General of Customs (1996) 17 WAR 499 at 515 per Malcolm CJ, Ipp and Owen JJ.

18. In Environmental Protection Authority v Caltex Refining Co Pty Ltd, a majority of the High Court, Mason CJ, Brennan, Toohey and McHugh JJ, held that the privilege against self‑incrimination was not an answer to a notice to produce documents relating to the discharge by it of pollutants into specified waters.  Mason CJ, Toohey and McHugh JJ also held that the privilege against self‑exposure to a penalty was likewise not available to a corporation, but Brennan J disagreed.  Deane, Dawson and Gaudron JJ considered that the privilege against self‑incrimination was available to a corporation, but said nothing regarding the privilege against self‑exposure to a penalty.  In Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 the Full Court of the Federal Court held that a corporation was unable to claim a privilege against self‑exposure to a penalty. That decision was applied by this Court in Bridal Fashions Pty Ltd v Comptroller General of Customs (1996) 17 WAR 499 at 515 per Malcolm CJ, Ipp and Owen JJ.

19. In the present context, Steytler J pointed out in Re Burton; Ex parte Roberts, supra, at 382 that proceedings for forfeiture stood on the same footing as an action for a civil penalty: Earl of Mexborough v Whitwood Urban District Council, supra, at 117 per Lord Esher MR.  See also Trade Practices Commission v Abbco, supra, at 125 and 127 - 128 per Burchett J.

1. As was the case in Re Calder; Ex parte Gardner (No 1), the present proceeding is also brought by the applicant in his capacity as objector to WMC's same applications for exemption, in an attempt to raise anew the question whether the Warden sitting in open court is acting in an administrative or judicial role.  The question arises between the same parties and out of the same proceedings before the Warden, as were involved in the previous decision.  It is objected on behalf of WMC that any such attempt is foreclosed by virtue of issue estoppel.  As Dixon J said in Blair v Curran (1939) 62 CLR 464 at 531:

   "A judicial determination directly involving an issue of fact or law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies."

2. It was submitted on behalf of WMC that the question in the present case is not whether the court may decline to follow a previous decision of the Court, which was the question in Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343, the question is whether the Court may re‑open a decision, as between the parties to that decision, or permit the question to be re‑litigated between the same parties. In Jackson v Goldsmith (1950) 81 CLR 446 at 466 Fullagar J described estoppel by res judicata as follows:

   "The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action.  This rule is not, to my mind, correctly classified under the heading of estoppel at all.  It is a broad rule of public policy based on the principles expressed in the maxims 'interest reipublicae ut sit finis litium' and 'nemo debet bis vexari pro eadem causa.' "

3. The rationale of the public policy is that it is in the public interest that there should be finality in litigation.  Once it appears that the same cause of action has been determined by a final judgment by a competent court or tribunal between the same parties or their privies, litigating in the same capacity, the matter cannot be re‑opened or re‑litigated between them. As Dixon J said in Blair v Curran, supra, at 532, this is because:

   "… the very right or cause of action claimed … has passed into judgment, so that it has merged and has no longer an independent existence."

4. In Port of Melbourne Authority v Anshun (1981) 147 CLR 589 at 611, Brennan J referred to this passage and, relevantly in the present context, as follows:

   "If cause of action is taken to mean a right, the rule is stated in terms of the passing of the right into judgment and the rule precludes a party bound by the judgment from maintaining against another party bound by it any subsequent proceeding to recover a judgment giving a remedy to enforce or compensate for an infringement of that right …

   If cause of action is taken to mean the facts which support a right to judgment, the rule of res judicata bars an action for relief founded upon the same facts as those upon which an earlier judgment was recovered …"

5. This is not a case in which there is some new ground for re‑opening the earlier decision between the same parties.  It is a case in which the applicant seeks to re‑open and re‑litigate the very issues which this Court determined in Re Calder; Ex parte Gardner (No 1).  There is no suggestion that the decision should be set aside on the ground of fraud as in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 539 per Kirby P, or on any other relevant ground.

6. The concept of issue estoppel is not confined to the final conclusion of a case, but extends to any matter which it was necessary to decide to reach a conclusion: Blair v Curran at 510 per Starke J; and see Murphy v Abi‑Saab (1995) 37 NSWLR 280 at 288 per Gleeson CJ. As has been seen, for relevant purposes Re Calder; Ex parte Gardner (No 1) held that the Warden sitting as a Warden "in open court" under s 98 and s 102 of the Mining Act, not as the "Warden's Court", is acting in an administrative capacity, not a judicial capacity. The Full Court also held that discovery was not available in such proceedings. The subject matter of those proceedings concerned applications by WMC under s 102 of the Act for exemption from certain expenditure conditions in respect of the same mining leases. The applicant was an objector to the exemption applications by WMC. The present proceedings are brought by the same applicant as an objector to the same applications for exemption.

7. This Court has not been specifically invited to re‑open the decision in Re Calder; Ex parte Gardner (No 1) in the technical sense, but it has been specifically invited to revisit and review the decision. The applicant's outline of submissions commences:

   "The Full Court's decision in Re Calder; Ex parte Gardner [1999] WASCA 28 was incorrect."

8. The submissions then seek to demonstrate why this is so.  In effect, there is an attempt to re‑open the issues decided against the applicant in the previous decision.  This would involve, at least in substantial effect, a re‑opening of the judgment in Re Calder; Ex parte Gardner (No 1), the reasons for judgment in which were delivered on 21 May 1999, when final orders were made, and from which there has been no appeal.  The present proceedings were commenced by Notice of Originating Motion undated, but returnable on 2 March 2000.  The order nisi was made by Scott J on 14 March 2000.  In his reasons in Gardner v WMC Resources Ltd [2000] WASC 59 at par [13] at p 5 Scott J said:

   "While I consider that it is arguable that the approach to the case adopted by the applicant is an abuse of process of the Warden's Court and it is also arguable that the applicant is seeking to challenge the earlier decision of the Full Court, nevertheless I am unable to conclude that the applicant does not have an arguable case …"

9. In my opinion, for the reasons I have mentioned, no basis has been shown for re‑opening the previous decision of this Court in Re Calder; Ex parte Gardner (No 1).  The circumstances under which the Full Court would entertain an application to set aside and re‑open a previous decision of the Full Court must be rare.  In State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 an application was made to the High Court to vacate certain orders made by the Court in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337. Mason and Wilson JJ at 38 had no doubt about the existence of the power to vacate, but considered that where the orders had been perfected it was necessary to weigh "what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation". See also Brennan J at 45 - 46 who acknowledged the possibility of an "indulgence" to allow re‑opening. The question of re‑opening was also canvassed in Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 in respect of which the High Court had pronounced judgment on 3 August 1982. On 15 October 1982 the appellant applied for an order vacating the order dismissing her appeal or, alternatively, an order remitting to the Supreme Court of New South Wales questions relating to equitable relief that might be available to her. Mason CJ, Wilson and Brennan JJ said that:

   "… as we had occasion to point out recently in State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 28, the circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard."

10. While the High Court as a final court of appeal may be expected to be more restrictive in relation to an application to re‑open than an intermediate appellate court such as this, the occasions on which such a re‑opening would be permitted would be relatively rare.  In the present case, nothing has been put before this Court which would justify the decision in Re Calder; Ex parte Gardner (No 1) being re‑opened and, in particular, being re‑opened on the sole basis that the applicant wishes to argue that the previous decision of this Court between the same parties on the same question was incorrect.  In my view, it is apparent that this is a blatant attempt to re‑argue the case basically on the same grounds as were rejected by this Court in the earlier decision.  In my view that is an abuse of process of the Court.

11. For these reasons, I am of the opinion that these proceedings constitute an abuse of process of the Court and that the order nisi should be discharged.

1. OWEN J:  I have read, in draft form, the reasons for decision that Malcolm CJ proposes to publish.  I agree with those reasons and with his Honour's conclusion that the order nisi should be discharged.  I wish only to add a few brief comments.

2. The Court was asked to assemble a bench of five, presumably to overturn the decision of the Full Court in Re Calder; ex parte Gardner (1999) 20 WAR 525 (which I will call "Gardner No 1").  It has to be borne in mind that Gardner No 1 was a case between the same parties in relation to the same disputed mining leases in the Broad Arrow mineral field. The respondent had applied to the warden under s 102 of the Mining Act 1978 for exemption from expenditure conditions in relation to the leases. The applicant objected to exemptions and sought discovery of documents from the respondent. The warden declined to do so. The Full Court agreed and held that the warden had no power to order discovery in proceedings under s 102.

3. The applicant then issued a subpoena directed to the respondent seeking (in substance) the same documents that he would have obtained had the order for discovery been made.  The warden set aside the subpoena.  It is that decision which is the subject of the present application.

4. In its written outline of submissions dated 12 September 2000 the applicant said: "The Full Court's decision in [Gardner No 1] was, with respect, incorrect. … ".  In a document entitled "Further Outline of Submissions of Applicant" dated 18 September 2000 the applicant said: "If the decision in [Gardner No 1] is correct then there is no framework and no machinery by which an application for forfeiture under s 98 or an exemption under s 102 can be effectively heard. …".

5. This heralded a subtle change of approach that was explored at the outset of the hearing.  Counsel for the applicant conceded that the applicant had taken, and maintained, the position that Gardner No 1 was wrongly decided.  But he said that it was not necessary for this Court to overturn the decision.  What the Full Court decided in Gardner No 1 was that discovery was not available. What this Court was being asked to decide was whether the process of obtaining documents by subpoena was open to a party in a s 102 application. This was a different matter and no issue estoppel arose from Gardner No 1 and there was no abuse of process in seeking the documents by way of subpoena.

6. It is fundamental to the decision in Gardner No 1 that the warden's power to make a recommendation concerning the expenditure exemption is administrative, not judicial. When exercising these recommendatory functions, the warden is not sitting as the Warden's Court. Accordingly, s 136(1) of the Mining Act did not confer power to order discovery.

7. In the circumstances of this case I can see no relevant distinction between obtaining documents by discovery on the one hand and by issuing a subpoena on the other. Counsel for the applicant called in aid reg 127 of the Mining Regulations 1981, which provides: "Each party may procure the attendance of witnesses by means of a subpoena in the form No 37 in the First Schedule". The form in the schedule is entitled "Subpoena for Witness" but it clearly contemplates the production of documents as well as the attendance of a person to give oral testimony. However, the form also contains the words "in the Warden's Court". It is not necessary to decide on this occasion whether the ability to issue a subpoena is limited solely to legal proceedings heard in the Warden's Court, properly so called, or whether it might extend to proceedings heard by a warden acting judicially but not acting either as the Warden's Court or as a warden sitting in open court. This is a matter for another day.

8. The fact is that, whether the applicant is applying for an order for discovery or whether he seeks to issue a subpoena, the nature of the proceeding remains the same. The proceeding is the application under s 102 for an exemption from expenditure conditions. Gardner No 1 stands firmly in the way of the applicant succeeding in this application. So long as s 102 proceedings are characterised as administrative, the applicant cannot (to adopt the phrase used by counsel for the respondent) "by the back door of subpoena do what [he could not] do by the front door of discovery".

9. There is nothing I can usefully add to what Malcolm CJ has said as to why this Court should not intervene to reconsider Gardner No 1 and as to why, in the circumstances, this application is an abuse of process.

10. Counsel for the applicant made a submission the effect of which was that the warden who heard the application to set aside the subpoena (if not the wardens generally) considered that Gardner No 1 rendered:

    "… wardens sitting in such an application as a toothless tiger unsupported by any mechanism of practice and procedure, not knowing whether he has the powers of contempt, not knowing whether there are powers of execution …"

1. Counsel went on to say that in a case where the Parliament has provided for a contested hearing where evidence is to be received, the Warden's Court in that sense is now in a state of disarray, in relation to Pt IV contested applications.

2. I would not wish to be taken as agreeing that the consequences of Gardner No 1 are as draconian (in terms of the proper administration of the Mining Act) as the submission would suggest.  Much will depend on the power being exercised and the nature of the proceedings.  If the consequences to which counsel alluded do follow, then it is as a result of the language that Parliament has chosen to employ.  If there is a mischief, the remedy lies with the legislature.

3. PARKER J: In his reasons the Chief Justice has set out the relevant history of ongoing disputation between the applicant and the respondent before a Mining Warden who is considering applications by the respondent for exemptions, under s 102 of the Mining Act 1978, from expenditure conditions in respect of mining leases it holds in the Broad Arrow mineral field.  The applicant is the objector before the Warden to those applications.

4. In Re Calder; Ex parte Gardner (1999) 20 WAR 525 ("Gardner No 1") this Court upheld a decision of the learned Warden who had refused the applicant an order for discovery against the respondent. The basis for the decision of this Court was that there was no power in the Warden to order discovery in proceedings under s 102 as the Warden was performing an administrative function and was not sitting as a Warden's Court. Hence, s 136(1) had no application to confer power to order discovery.

5. Since then, the learned Warden has set aside a subpoena which issued at the instance of the applicant. The subpoena sought the production of documents by the respondent in the same s 102 applications. It may be accepted, albeit with limited imprecision, that the documents which were the objective of the unsuccessful discovery application are those sought by the subpoena.

6. The applicant submits to this Court, on the one hand, that as the present issue is the availability to the applicant of a subpoena it raises a different issue from Gardner No 1 which was concerned with the availability of discovery.  The applicant further invites the Court, on the other hand, to reconsider the reasoning on which the decision in Gardner No 1 is based.  In my respectful view, however, the reality is that there is no relevant distinction between the issues that determine the availability

of discovery and of a subpoena to the parties before the Warden.  It appears to me that the reasoning of this Court in Gardner No 1 is determinative of the non-availability of a subpoena to the applicant.  As the Warden is performing an administrative function the powers and procedure of a Warden's Court including those relating to subpoenas, are not available to the parties or the Warden for the purposes of the present applications.

1. The applicant in truth seeks by these proceedings to have a differently constituted bench consider again the same issues that were fully explored in Gardner No 1 in the hope of securing an outcome contrary to that which the reasoning in the decision in Gardner No 1 would require, and so to have resort to one of the powers and procedures of a Warden's Court for the purpose of presenting its case to the Warden on these applications.

2. I agree with the Chief Justice, for the reasons he has given, that in these particular circumstances this present attempt of the applicant is properly viewed as an abuse of process.

3. Particular mention should be made of some submissions which sought to impress upon us the practical problems perceived by some to flow from Gardner No 1.  Of course, what one interest might perceive as a practical problem other interests may well view differently.  As the reasoning in Gardner No 1 and earlier decisions clearly demonstrates, there is a lack of clarity of perception and consistency of policy and language in the provisions of the Act which bear on the powers available to a Warden when performing the variety of functions which a Warden is to perform under the Act. Hence, there has been difficulty determining what powers are available to a Warden, and what practice and procedure is to be followed by a Warden, who is exercising the administrative function of making a recommendation to the Minister where there is an objection to an application. Whatever way these difficulties in the legislation are reconciled, the result is likely not to suit some interests.

4. In the particular case of a Warden considering an objection to an application under s 102, and under similar provisions, if the result arrived at in Gardner No 1 is thought not to strike the most appropriate balance between the competing interests and considerations, a suitable way of correcting the position for such cases may prove to be readily available by appropriate use of the regulation making powers, in particular s 162(1) and s 162(2)(a). In this respect it is to be noted that s 102 (and the other similar provisions) expressly contemplates a hearing of an objection by the Warden in open court at which hearing evidence is to be received.

That, of course, is a matter for those concerned with the policy and administration of the Act. For the present, this Court can do no more than attempt to reconcile the difficulties which the Act presents, as best as the words and policy of the Act allow.

1. Be that as it may, for the reasons indicated I agree with the Chief Justice that the order nisi should be discharged.

2. WHEELER J:  I have had the advantage of reading in draft the reasons for decision of other members of the court.  I agree with the reasons which Malcolm CJ proposes to publish, and with the further comments of Owen J.  For those reasons, I would discharge the order nisi.

   McKECHNIE J: 

Introduction

1. This application for a writ of certiorari against a Mining Warden was heard by a Full Court of five Judges.  It is the latest in a series of actions by Mr Gardner to gain access to certain documents held by Western Mining Corporation.

Background to the application

1. WMC Resources Ltd has sought exemption from certain expenditure conditions in connection with three mining leases.  By the Mining Act s 102(5), where there is an objection to an application for a certificate of exemption in respect of the particular leases, the application shall be heard by the Warden in open court who, as soon as practicable after the hearing of the application, shall transmit to the Minister for his consideration, the notes of evidence and any maps or other documents referred to therein, and his report recommending the grant or refusal of the application and setting out his reasons for that recommendation.

1. Mr Gardner lodged an objection in the Warden's Court to the application for exemption.

2. He then sought discovery of certain WMC Resources Ltd documents, relying on the Mining Act s 136(1), arguing that the practice and procedure of the Local Court applied.

1. His application was refused and he sought prerogative relief which was also refused:  Re His Worship Calder SM; Ex parte Gardner [1999] WASCA 28 (1999) 20 WAR 525.

2. Undeterred, he then instructed his solicitors to issue a subpoena to an employee of WMC Resources Ltd, seeking a wide range of documents to which access by way of discovery had been refused.  By notice of motion before the Warden, WMC Resources Ltd applied to set aside the subpoena.

3. On 6 January 2000, the Warden heard the motion.  The Warden relied on the decision of the Full Court in Re His Worship Calder SM; Ex parte Gardner (supra) to the effect that a Warden in open court is acting administratively.

4. He reached the view that there was simply no power to issue the subpoena.

5. On 14 March 2000, Scott J granted an order nisi as follows:

   "The Learned Magistrate do show cause before the Full Court of this Honourable Court why a Writ of Certiorari should not be issued against His Worship quashing the decision made by His Worship on 6 January 2000 to discharge a subpoena on the ground that the Learned Magistrate erred in the purported exercise of jurisdiction under the Mining Act 1978 by finding that he did not have the power to issue a subpoena because he was not exercising the powers of a Warden in the Warden's Court and that he did not have the power to discharge the subpoena."

   The Warden has signified an intention to abide the decision of this Court.  WMC Resources Ltd appears in opposition to the order nisi.

6. Mr Gardner's desire to press his objection to the claimed exemptions from expenditure by reference to his opponent's documents has therefore generated a number of hearings before successive wardens and two hearings before the Full Court.  In the process he has raised interesting and difficult questions of construction of the Mining Act and the extent to which a Full Court should interfere with an earlier decision of the Full Court in respect of the same action and the same subject matter.

The decision in Re Calder SM; Ex parte Gardner (1999) 20 WAR 525

1. The principal submission of the applicant is that the Full Court was wrong in discharging the previous order nisi.  The applicant would read the terms "Warden's Court" and "the Warden sitting in open court" in the Mining Act as  being used synonymously.  This would lead to the conclusion that, pursuant to the practice and procedure of the Warden's Court, a subpoena should issue.  I am unable to accept this submission.

2. With great respect I consider the reasoning of Justice Ipp in Re Calder is correct.  In particular I agree with his conclusion expressed at 529 that:

   "… 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 …."

3. Although invited by the applicant to refer to extrinsic material by way of the Second Reading Speech, I have not found it necessary to do so because in my opinion the Mining Act is quite clear.  The term "Warden's Court" is defined as follows:

   " 'Warden's Court' means 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."

4. The Mining Act s 13 defines wardens of mines who are of two categories. The first category is any person holding office as a Stipendiary Magistrate who, when appointed by the government to be a warden of mines is thereby authorised and empowered to preside in a Warden's Court.

5. The second category is other fit and proper persons appointed by the government to be wardens of mines, but they are not empowered to preside in a Warden's Court.

6. The distinction is carried throughout the Mining Act.  Where there is a determination of final rights, the jurisdiction to so determine is given to the Warden's Court.

7. Where, as here, there is the power to receive evidence, record findings and transmit to the Minister for his consideration notes of the evidence, the power to hear the application is given to the Warden in open court.  The concepts of the Warden's Court and a Warden sitting in open court are distinct and were deliberately made so by Parliament to differentiate between the judicial and administrative capacities of a Warden.

8. The applicant having sought certiorari on the single ground that as the Warden was not exercising the powers of a Warden in Warden's Court, the application must therefore fail.

Power of Warden sitting in open court

1. When making his ruling on the lack of power to issue a subpoena, the Warden said:

   "…  The ramifications of the decision in my view are widespread in many respects, makes the Warden in open court in some degrees a toothless tiger (sic).  That is a problem with the legislation, not of the determination."

2. Because of the Warden's view about lack of power, I should set out my opinion that a Warden in open court does have power to issue a subpoena and to take evidence on oath.

The relevant statutory provisions

(a)Mining Act, s 102

1. It is common cause that in this case WMC Resources Limited applied for a certificate of exemption and the applicant objected to the certificate being granted.

2. The Mining Act, s 102(5) provides:

   "An application for a certificate of exemption -

   (a)where an objection to the application is lodged, shall be heard by the Warden in open court; but

   (b)otherwise, shall be forwarded to the Minister for determination by the Minister."

   "(6)The warden shall as soon as practicable after the hearing of the application transmit to the Minister for his consideration the notes of evidence and any maps or other documents referred to therein and his report recommending the granting or refusal of the application and setting out his reasons for that recommendation."

3. The role of the Warden therefore is to hear the objection in open court and take notes of the evidence, thereafter forwarding the material to the Minister for consideration and decision.

4. The procedure governing applications for exemption is dealt with under the Mining Regulations 1981, reg 54, which provides for the application to be made in accordance with Form 18 of the First Schedule and supported by reasons in the form of a statutory declaration, which means a statutory declaration under the Evidence Act 1906, s 106.

5. Regulation 55 permits the lodging of an objection in the Form No 16.

6. Regulation 56 provides for evidence in support of application and objection -

   "(1)Where any objection against an application for a certificate of exemption under section 102 is lodged within the time allowed, the warden shall receive evidence in open court in support of the application and in support of any objection so lodged."

7. 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

8. 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;"

9. 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.

10. 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).

11. 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.

12. 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.

13. 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.

14. 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.

A writ of subpoena

1. 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.

2. The answer is the ancient writ of subpoena, a Latin phrase in general use which means literally "under penalty".

3. A history of the writ of subpoena is set out in the judgment of Malcolm CJ in Carter v Malleson Stephen Jaques (1994) 11 WAR 159, from 167. In that case, the court was concerned with tracing the power of the Supreme Court to issue a writ of subpoena in proceedings on the Crown side of the court. As Malcolm CJ noted by reference to Blackstone, the writ of subpoena was first developed by the Courts of Chancery.

4. In fact, Coke would suggest that the writ was in fact adapted by the Court of Chancery from an earlier common law process.  In the first part of the Institute of the Laws of England, otherwise known as "Coke on Littleton", the learned authors of the 1823 edition described the introduction of the writ of subpoena as "a new judicial power into the jurisprudence of England by the invention or rather by a new application of the writ of subpoena, s 290.b.n.1.I.3.  The writ was adopted by the Court of Chancery from the common law courts, 191.a.sec VI.11.  This suggests that the writ of subpoena forms part of the common law, perhaps from time immemorial.  At all events, it was an established procedure under the common law when the Evidence Act was enacted.  For example, the Evidence Act, s 16, assumes the availability of subpoenas, albeit that the particular provisions of s 16 and s 17 are limited to the trial of any case, civil or criminal.

Issue of a subpoena an incidental power

1. The Evidence Act is not a code of evidence.  It is a remedial Act in addition to the common law rules.  When the Evidence Act defines persons acting judicially, it is extending to that class of person such common law procedures as may be necessary for the person to properly fulfil their functions.  The common law power to issue a subpoena is such a procedure.

2. There is another basis on which the conclusion may be supported.  The Warden, when sitting in open court, as an incident of the power to receive evidence, has the power to compel witnesses to attend and give evidence at the hearing of the application.  This is a necessary incident of the grant of power to hold a hearing in an open court.  It is also a necessary incident of that power to have witnesses attend to produce relevant "maps or other documents" (Mining Act, s 102(6)), which might be referred to within the testimony of the witnesses. In other words, the Warden's power encompasses both the power to issue a subpoena ad testficandum and the power to issue a witness subpoena duces tecum.

3. The fact that the Warden sitting in open court is not sitting as the Warden's Court or in a court of justice is, in my view, immaterial to the present question.

4. In Dawkins v Lord Rokeby (1872-3) 8 LRQB 255, the Court of Exchequer Chamber was concerned with the question whether statements made to a court of inquiry instituted by the Commander in Chief of the Army under the Articles of War to inquire into a complaint made by an officer attracted absolute privilege.

5. In the judgment of Kelly CB (for the court), the documents were held to be so privileged.

6. In the court of the judgment, Kelly CB discussed the nature of the inquiry.  It is in some ways analogous to the inquiry by a Warden in open court because the inquiry had the power to hear evidence but not to make decisions.  At 266, Kelly CB said:

   "A court of inquiry, though not a court of record, nor a court of law, nor coming within the ordinary definition of a court of justice, is, nevertheless, a court duly and legally constituted, and recognised in the articles of war and many Acts of Parliament …  The mode in which the commander-in-chief examines into any such complaint is by instituting a court of inquiry.  A court, therefore, so called into existence has all the qualities and incidents of a court of justice.  It is convened, in pursuance of this provision, and so under the express authority of Parliament, and of the Queen's Regulations, which, as set forth upon this record, provide as follows:

   'A court of inquiry may be assembled by any officer in command to assist him in arriving at a correct conclusion on any subject on which it may be expedient for him to be thoroughly informed.  With this object in view such court may be directed to investigate and report on any matter that may be brought before it; but it has no power to administer an oath nor to compel the attendance of witnesses not military.'

   From this it follows that a military witness is compellable to attend and to give evidence …

   'A court of inquiry is not to be considered in any light as a judicial body.  It may be employed at the discretion of the commanding officer to collect and to record information only, or it may be required to give an opinion also on any proposed question.  The proceedings are to be recorded in writing as far as practicable in the form prescribed for courts martial, signed by each member, and forwarded to the convening authority ….' "

7. The Warden sitting in open court is broadly analogous to the court of inquiry under consideration in Davies v Lord Rokeby and the same principles apply.  Parliament has affirmed that the function performed by the Warden, though administrative in nature, is nevertheless performed in a court.

8. The requirement in the Mining Act for the Warden to sit in open court, to receive evidence and to make notes of evidence all point to an inquiry by the Warden to gather the evidence of the application and the factors relating to the objection before forwarding it to the Minister for decision.

9. A Warden is an office created by statute.  It is wrong to speak of any inherent jurisdiction in a Warden, a Warden's Court or a Warden in open court.

10. Nevertheless, the Warden can regulate the procedure of the Warden's Court : Sparks v Bellotti [1981] WAR 65.

11. Moreover, the grant of power to a Warden sitting in open court to receive evidence carries with it as an incident of the grant of power such powers as may be necessary to fulfil the duty imposed by statute and exercise the power given:  Interpretation  Act, s 50.

12. It is a necessary incident of the grant of power to receive evidence that there is an incidental power to compel witnesses to attend at the time of hearing and to bring with them such maps and other documents as might be referred to in their testimony.

Discretion to make the order absolute

1. There is a discretion in the Court to grant certiorari: Re Smith; Ex parte Rundle (1991) 5 WAR 295 at 320. In this case, the applicant seeks to re‑litigate precisely the same point which was decided against him in the earlier decision. Senior counsel for the respondent argues that an issue estoppel arises preventing the re‑litigation of the point inter partes.  The respondent cites Blair v Curran (1939) 62 CLR 464 per Dixon J at 531:

   "A judicial determination directly involving an issue of fact or law disposes once and for all of the issue so that it cannot afterwards be raised between the same parties or their privies."

2. Whether the rule in Blair v Curran should be applied 60 years later with the same rigour in which it was expressed in 1939 is an issue.

3. In Nguyen v Nguyen (1989) 169 CLR 255, the High Court had occasion to visit the question of the extent which an intermediate court should regard itself as bound by its own previous decision. The majority judgment was delivered by Dawson, Toohey and McHugh JJ, with whom on this aspect Brennan J expressly agreed.

4. After summarising the position in intermediate courts, their Honours continued at 269:

   "Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong.  The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law : see Queensland v The Commonwealth (1977) 139 CLR 585, per Aickin J at 620 …. Now that appeals to the High Court are by special leave only, the appeal courts of the Supreme Courts of the States and of the Federal Court are in many instances courts of last resort for all practical purposes … In these circumstances, it would seem inappropriate that the appeal courts of the Supreme Courts and of the Federal Court should regard themselves as strictly bound by their own previous decisions. In cases where an appeal is not available or is not taken to this court, rigid adherence to precedent is likely on occasions to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty."

5. In the years since Nguyen v Nguyen was decided, the number of applications for special leave to the High Court has risen.  The High Court is required to deal with constitutional matters and the amount of time remaining for general matters is such that special leave will be granted very sparingly.

6. In Western Australia, there has been a longstanding practice for the Full Court to decide whether or not it would follow a previous decision arrived at by a Full Court comprised of a lesser number of Judges : Kavanagh v Claudius (1907) 9 WAR 55, per Parker CJ at 58.

7. In Re Warden Calder; ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343, the Full Court set out the applicable principles. At 354, Steytler J, with whom Kennedy, White and Wheeler JJ agreed, set out the extent to which the Full Court of the Supreme Court may depart from its previous decisions. After referring to Nguyen v Nguyen, Steytler J said:

   "That said, a Full Court of this Court, even if comprised of five judges, will not lightly depart from one of its previous decisions, more particularly when that decision has since been applied by another Full Court.  It should, I think, only do so in circumstances in which it is convinced that the earlier decision was wrong (see Craig v Troy (1997) 16 WAR 96 at 162 and Traegar v Pirez de Albuquerque (1997) 18 WAR 432 at 447) or when there is some other compelling reason why the previous decision should no longer be followed …."

1. To recognise the right of a party to seek to overturn a decision of a previous Full Court in an action inter partes where there has been no application for special leave to appeal to the High Court does no more than bring reality to the concept that, in most cases, the Full Court is the final court of appeal.  The occasions on which the Full Court will grant leave to reopen a decision are likely to be rare and the obstacles to success are considerable.

2. Nevertheless, I do not regard the mere fact that the applicant seeks to overturn the earlier decision as demonstrating an abuse of process.

3. There may well be occasions where the issue of a subpoena, in circumstances in which discovery is available to a party, will be oppressive and an abuse of process.  By virtue of the earlier decision of this Court in Re Gardner, however, discovery is unavailable to the applicant.

4. I would therefore not regard these proceedings as an abuse of process simply because they involve the purported issue of a subpoena in respect of the same documents for which discovery was denied.

5. I would discharge the order nisi on the simple basis that the applicant has failed to make out the ground upon which issue was joined.