Re Minister for Energy, Resources, Industry & Enterprise - [2007] WASC 280

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE MINISTER FOR ENERGY, RESOURCES, INDUSTRY & ENTERPRISE; EX PARTE ST BARBARA LTD [2007] WASC 280

CORAM: TEMPLEMAN J

HEARD: 8 NOVEMBER 2007

DELIVERED : 21 NOVEMBER 2007

FILE NO/S: CIV 1792 of 2007

MATTER :An application for a Writ of Prohibition and a Writ of Mandamus against the Honourable Francis M Logan MLA, Minister for Energy, Resources, Industry & Enterprise, in his capacity as the Minister responsible for administering the Mining Act 1978 (WA).

EX PARTE
ST BARBARA LTD (ACN 009 165 066)
Applicant
AND
MINISTER FOR ENERGY, RESOURCES, INDUSTRY & ENTERPRISE
First Respondent
MURRIN MURRIN HOLDINGS PTY LTD & GLENMURRIN PTY LTD
Second Respondents

Catchwords:

Prerogative writs - Prohibition - Warden dismisses licence application - Unsuccessful party seeks appeal to Minister - Objectors to licence seek writ against Minister - Jurisdiction of Minister explained by grant of interest in property owned by State

Prerogative writs - Mandamus against Minister conducting appeal - Allegation Minister would not consider all available evidence - Appeal yet to begin - Expectation Minister proceed in proper manner

Legislation:

Interpretation Act 1984 (WA), s 50
Mining Act 1978 (WA), s 13, s 40, s 41, s 42, s 91, s 94, s 111A

Result:

Order nisi discharged

Category: A

Representation:

Counsel:

Applicant:     Mr S K Dharmananda
First Respondent           :     No appearance
Second Respondents     :     Mr C L Zelestis QC & Mr M T McKenna

Solicitors:

Applicant:     DLA Phillips Fox
First Respondent           :     No appearance
Second Respondents     :     Hunt & Humphry

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

Murrin Murrin Holdings Pty Ltd v St Barbara Mines Ltd [2007] WAMW 4
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Re Calder; Ex parte Gardner (1999) 20 WAR 525
Re Minister for Mines, Fuel & Energy; Ex parte Trythall (1992) 7 WAR 375
Walton v Gardiner (1993) 177 CLR 378

TEMPLEMAN J: By an amended originating motion dated 19 September 2007, the applicant, St Barbara Ltd, seeks either a writ of prohibition or a writ of mandamus against the Hon Francis M Logan MLA, the Minister for Energy, Resources, Industry & Enterprise, in his capacity as the Minister responsible for administering the Mining Act 1978 (WA). An order nisi was granted by Newnes J on 19 September.
On the return of the order nisi, the application was opposed by a joint venture comprising Murrin Murrin Holdings Pty Ltd and Glenmurrin Pty Ltd (the MMJV). The Minister had filed a notice of intention to abide by the court's decision. For the purpose of complying with the court's internal procedures, the Minister will be named in the formal parts of these reasons as the first respondent and the MMJV as the second respondent.

The application for the writ of prohibition

In that part of the originating motion relating to a writ of prohibition, the applicant seeks to prohibit the Minister from hearing 'a purported appeal pursuant to section 94(3) of the Mining Act … in respect of a decision of Warden Calder SM delivered on 13 April 2007'.
The decision to which the originating motion refers, was given by the learned warden on the MMJV's applications L37/129 and L37/130 for miscellaneous licences, which, by s 91 and s 42 of the Mining Act, were to be determined under the latter provision as if they were prospecting licences.
The applicant objected to the grant of the licences. That being so, the relevant part of s 42 is sub‑section (3), which, at the material time, provided:
(3)Where a notice of objection -
(a) is lodged within the prescribed time; or
(b)is not lodged within the prescribed time but is lodged before the mining registrar has granted or refused the prospecting licence under subsection (2) and the warden is satisfied that there are reasonable grounds for late lodgment,
the warden shall hear and determine the application for the prospecting licence in open court on a day appointed by the warden and may give any person who has lodged such a notice of objection an opportunity to be heard.
The warden upheld the objection. In pars 226 ‑ 228 of his Honour's reasons (Murrin Murrin Holdings Pty Ltd v St Barbara Mines Ltd [2007] WAMW 4), the warden held:
In all of the circumstances I am of the opinion that application L37/129, insofar as it is an application over the land which was the subject of the decision of Warden Thobaven in respect of application L37/94, is estopped on the basis of the Anshun principles and, further, constitutes an abuse of process. Application L37/129, insofar as it is an application for the grant of a miscellaneous licence over ground that was the subject of application L37/94, should be dismissed.
In respect of application L37/130, being an application over ground identical to the ground applied for in application L37/93, the latter being the application that was refused by Warden Thobaven, is an application which the applicant is estopped from commencing and proceeding with upon the basis of the Anshun principles and, further, the application is an abuse of process and, accordingly, should be dismissed.
For the above reasons application L37/129 is dismissed to the extent that it is an application for the grant of a miscellaneous licence over land that was the subject of application 37/94 that was refused by Warden Thobaven. Application L37/130 is dismissed.
The Anshun principle to which the warden referred, is that stated in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. It is to the effect that a party may be estopped from raising in later proceedings an issue which could and should have been (but was not) raised in earlier proceedings involving the same, or closely related, subject matter. Apart from that explanation, it is not necessary to consider the warden's reasons.
It is common ground between the parties that the warden was concerned only to rule on the objections. That is to say, he was not required to have regard to what might be described as the merits of the application. For that reason, no evidence relating to such matters was adduced at the hearing.
Following the dismissal of their application, the MMJV initiated an appeal to the Minister pursuant to s 94(3) of the Mining Act. It provides:
(3)Where the mining registrar or the warden refuses an application for a miscellaneous licence or grants the application on conditions the applicant considers unreasonable, the applicant may within the time and in the manner prescribed appeal to the Minister against such refusal or conditions as the case may be.
(4)The Minister may dismiss the appeal or uphold the appeal and grant the application on such conditions as he considers reasonable. (my emphasis)
The question raised by this part of the originating motion is whether the Minister has jurisdiction to entertain an appeal from the dismissal of an application. The applicant contends that he does not. It submits that a dismissal is not the same as a refusal: and that only the latter will provide a basis for an appeal. That argument has not been accepted by the Minister, who proposes to proceed with the appeal.
The applicant submits that there is a significant difference between the refusal of an application and its dismissal. The applicant points to Butterworths Concise Australian Legal Dictionary (2^nd ed) where 'dismissal of proceedings' is defined in the following way:
An order for the termination of the plaintiff's action in favour of the defendant. The order is generally made in the exercise of a court's inherent jurisdiction to prevent abuse of process.
Similarly, the Shorter Oxford Dictionary defines 'dismiss' as to
send out of court, deny further hearing to (a legal action or claim).
Conversely, the Shorter Oxford Dictionary defines 'refuse' as
decline to grant.
The applicant therefore submits that an application cannot be 'refused', unless and until it has been considered on its merits, unlike the application in the present case.
The applicant derives further support for this proposition from some English decisions of respectable antiquity in which, it is submitted, appellate courts recognised the distinction between the dismissal and the refusal of an application:
R v Pilkington (1853) 2 El & Bl 546; R v Paynter (1857) 7 El & Bl 328 and R v Dayman (1857) 7 El & Bl 672.
I have considered these decisions, but they do not assist in the construction of the Mining Act.
As appears from s 42(3) of the Mining Act, the statutory power vested in the mining warden is to 'hear and determine' the application for a relevant licence. However, the applicant submits that the warden has an implied or incidental power to control the proceedings before him. This, it is submitted, would include a power to dismiss applications as an abuse of process, as in this case.
The applicant submits that the source of the implied or incidental power is s 50 of the Interpretation Act 1984 (WA). Section 50(1) provides:
Where a written law confers upon a person power to do or enforce the doing of any act or thing, all such powers shall also be deemed to be conferred on the person as are reasonably necessary to enable him to do or to enforce the doing of the act or thing.
There is no doubt that when sitting in open court to consider whether to grant or refuse a prospecting licence (including a miscellaneous licence), the warden is acting in an administrative capacity, albeit judicially: Re Calder; Ex parte Gardner (1999) 20 WAR 525, 529, Re Minister for Mines, Fuel & Energy; Ex parte Trythall (1992) 7 WAR 375, 389.
It follows, if the applicant's submissions are correct, that an administrative decision made by the warden to refuse a licence on its merits would be amenable to an appeal to the Minister, whereas an administrative decision to dismiss the application on some legal ground would not be appealable. The applicant does not regard that distinction as unreasonable. It submits that questions of law should be for the courts, rather than the Minister. However, as the MMJV point out, questions of law might well arise in decisions made on the merits: questions of construction, for example.
The MMJV submits that the applicant's construction would be contrary to the scheme of the Mining Act which makes the grant or refusal of prospecting licences ultimately a matter for the executive government, rather than the courts.
Clearly, the decision whether or not to grant a prospecting licence does not involve the determination of rights in a dispute between private individuals. Rather, it involves the grant of an interest in property which is owned by the State and for which the executive government is responsible. That being so, the MMJV submits, it is to be expected that the ultimate repository of the power to grant or refuse licences would be the responsible Minister, acting on behalf of the government. The MMJV relies on a number of provisions of the Mining Act which support this view.
Section 13(1) of the Mining Act provides for the Governor to appoint magistrates as wardens of mines. However, s 13(2) provides for the appointment by the Governor of other fit and proper persons to hold that office. Then by s 13(4), a person who holds office under pt 3 of the Public Sector Management Act 1994 (WA) may be appointed as a mining registrar.
By s 40, the mining registrar or the warden may grant prospecting licences. But the mining warden may do so only when no notice of objection has been lodged. Where there has been a notice of objection, a warden must 'hear and determine the application'. Thus, the grants may be made and objections determined by persons who are not legally qualified.
The MMJV submits that by these provisions, the legislature has set out the precise ambit of the power vested in the mining warden and mining registrar to grant interests in State‑owned property.
The right of appeal to the Minister in s 94 emphasises the administrative nature of the powers. This is emphasised further by s 111A of the Mining Act which provides:
(1)The Minister may -
(a)by notice served on the mining registrar or the warden, as the case requires, terminate an application for a mining tenement before the mining registrar or the warden has determined, or made a recommendation in respect of, the application; or
(b)refuse an application for a mining tenement,
if in respect of the whole or any part of the land to which the application relates -
(c)the Minister is satisfied on reasonable grounds in the public interest that -
(i)the land should not be disturbed; or
(ii)the application should not be granted;
or
(d)a person who in relation to the land was formerly the lessee of a mining lease the term of which has expired, or is a person deriving title through such a former lessee, has subsequently made a late renewal application and the Minister, being satisfied that the requirements of that expired mining lease and of this Act in relation to that lease had been substantially observed (other than as to the timing of an application for renewal) and that the person has continued to observe those requirements as if the term of the lease had not expired, determines that the renewal application should be approved and grants that renewal.
If the applicant's submissions are correct, the Minister could exercise his power under s 111A to remove from the warden an application which was subject to (for example) an abuse of process objection, whereas, if the warden had upheld the objection and dismissed the application, the Minister could no longer be involved in the matter.
In my view, these considerations lead to the conclusion that the MMJV's construction of the Mining Act is to be preferred. I accept the MMJV's submission that the principle applicable in this case is that to which Brennan J referred in Walton v Gardiner (1993) 177 CLR 378, citing R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 398:
Where a jurisdiction is conferred on a court, 'and where such a jurisdiction is created for the public benefit or for the purpose of conferring rights or benefits upon persons the court upon an application properly made is under a duty to exercise its jurisdiction and is not at liberty to refuse to deal with the matter …' (414)
It follows, that in dismissing an application, the warden is not exercising an implied or incidental power of the kind for which the applicant contends. That is because such a power is not 'reasonably necessary' to enable the warden to perform the only function available to him under s 42 of the Mining Act: to 'hear and determine' the application for the licence. An application which is dismissed must therefore be taken to have been refused, with the result that the unsuccessful applicant is entitled to appeal to the Minister pursuant to s 94.
The application for a writ of prohibition must therefore fail.

The application for a writ of mandamus

In this part of its application, the applicant seeks to compel the Minister, on the hearing of the appeal, to
receive and consider any evidence tendered by [the applicant] in opposition to the appeal; and
limit consideration of the appeal to tenements referred to in the Warden's decision other than application L37/129.
The applicant is concerned that the Minister will not consider evidence the applicant considers to be relevant. This concern arises from correspondence between the applicant's solicitors and officers of the Department of Industry and Resources acting on behalf of the Minister.
On 11 July 2007, the Director, Mineral and Title Services Division of the Department, wrote to the applicant's solicitors after considering the rival contentions as to the MMJV's entitlement to appeal from the warden's decision.
The Director said:
[I]t is intended the Minister will consider the appeal pursuant to s 94(3) of the Mining Act 1978 based on submissions received as well as subsequent responses to each primary submission. There is no requirement in the Act, nor is it practical or necessary, for the Minister to entertain oral or other evidence following a decision of a Warden.
Then on 2 August 2007, the Director said:
1.I confirm it is intended to proceed with the appeal;
2.It is not conceded that the Minister will breach the principles of procedural fairness by not receiving direct evidence.
On 3 August 2007, following a request to clarify the term 'direct evidence', the Director wrote:
As per my 11 July letter, the intention is that the Minister would determine the appeal based on submissions and counter submissions from the parties. We are at a point where each party has lodged its primary submission and, depending on the outcome of your Writ action of course, each party would be given an opportunity to comment on the respective primary submission.
So in this context not receiving 'direct evidence' means that the only 'evidence' the Minister will take into account would be the affidavit evidence put before the Warden in respect to the dismissal application.
As noted above, the warden did not deal with the merits of the MMJV's licence application. That being so, there was no evidence relating to those matters before the warden. The applicant submits that it will be denied natural justice if it has no opportunity to present evidence relating to the merits.
Leading counsel for the MMJV submitted that the Minister's stated intention to proceed on the basis of the material before the warden arose from a misunderstanding of the circumstances. That may well be so: although it is not necessary to dwell on the matter. That is because, as counsel for the MMJV acknowledged, it is obviously necessary, in order to afford the parties procedural fairness, that both the MMJV and the applicant be permitted to put before the Minister such evidence as they consider fit in relation to any issue in controversy between them.
In these circumstances, I accept the MMJV's submission that it would be inappropriate to issue a writ of mandamus against the Minister. It is to be expected that once the Minister becomes aware of the full circumstances, he will deal with the appeal in a proper manner.
In relation to the second limb of the mandamus application, the applicant contends that the warden's decision in relation to application L37/129 cannot be challenged until the warden has disposed finally of that application.
I do not accept that submission. In my view, although the warden's decision to dismiss the application L37/129 was made only in relation to part of the ground, it was nevertheless a refusal of a licence in the sense referred to above, such that the appeal provisions of s 94(3) of the Mining Act are applicable.
For all these reasons, I consider that the application for a writ of mandamus must fail also.