Re Nicholls SM
[2002] WASCA 232
•28 AUGUST 2002
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: RE NICHOLLS SM; EX PARTE PLUTONIC OPERATIONS LTD [2002] WASCA 232
CORAM: MURRAY J
WHEELER J
MILLER J
HEARD: 12 JUNE 2002
DELIVERED : 28 AUGUST 2002
FILE NO/S: CIV 1780 of 2001
MATTER :Objection KR14/001 by DAVID GUEST to Application for Exemption from Expenditure Conditions KR73/001 by PLUTONIC OPERATIONS LTD affecting Mining Lease M47/223
Application for a Writ of Certiorari against the Warden sitting at Karratha, PAUL NICHOLLS SM
EX PARTE
PLUTONIC OPERATIONS LTD
Applicant
Catchwords:
Prerogative writs - Warden's Court - Mining lease - Application for exemption from expenditure conditions - Form 18 requirements - Application of principles of natural justice to Warden's Court sitting administratively - Power of Warden to direct particulars or statement of material facts
Legislation:
Mining Act 1978, s 98, s 100, s 102
Mining Regulations 1981, reg 54, reg 56, reg 90
Result:
Application allowed
Category: A
Representation:
Counsel:
Applicant: Mr M T McKenna
Amicus Curiae : Ms C J Thatcher
Solicitors:
Applicant: Hunt & Humphry
Amicus Curiae : State Crown Solicitor
Case(s) referred to in judgment(s):
Ex Parte Peko Exploration Ltd, unreported; FCt SCt of WA; Library No 970613; 14 November 1997
Re Calder; Ex parte Gardner (1999) 20 WAR 525
Re Malley; Ex parte Gardner [2001] WASCA 29
Case(s) also cited:
Bennison; ex parte Fisher SM (1995) 14 WAR 318
Daniel v Western Australia [1999] FCA 686
Eora People - Brown v Minister for Land & Water Conservation [2000] FCA 1238
Grassby v R (1989) 168 CLR 1
Mummery v Irvings Pty Ltd (1956) 96 CLR 99
Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490
Re Minister for Mines; ex parte Roberts (1997) 18 WAR 408
Reynolds v Panten [No 1] (1999) 23 WAR 215
Savage v Teck Explorations Ltd, unreported; FCt SCt of WA; Library No 7285; 16 September 1988
Western Australia v Native Title Registrar [1999] FCA 1594
MURRAY J: I agree with Wheeler J that, for the reasons her Honour gives, the order nisi for certiorari should be made absolute to the extent necessary to quash the order made by the Warden on 1 May 2001 insofar as it required the provision of particulars other than those sought in the request for particulars dated 10 April 2001, pars 1A1‑4, 1B1‑7, 1C1‑10, 1D1‑11, 1D1‑14, 2‑2, 2‑3, 2‑6, 2‑7 and 3.
WHEELER J: It is my view that this order nisi for a writ of certiorari should be absolute, and that the orders of the Warden be quashed, but in part only. It is also my view that an order very similar to the order which is to be quashed, was open to be made by the Warden.
History of the application
The history which follows is taken very substantially from the useful summary of facts to be found in the decision of Roberts‑Smith J granting the order nisi on 20 June 2001. The application arises out of an order, made by Mining Warden Mr Nicholls SM, sitting at Karratha on 1 May 2001, that the applicant provide further and better particulars of its application for exemption from expenditure conditions in respect of a mining lease held by the applicant.
The applicant ("Plutonic") is the registered holder of Mining Lease 47/223. It is a related company of Homestake Gold of Australia Ltd ("Homestake") which has the responsibility for managing mining tenements held by companies within Australia related to it, including Plutonic.
On 29 January 2001 the Tenement Manager of Homestake prepared and signed a document entitled "Application for Exemption from Expenditure Conditions" in relation to the mining lease and sent that application to the Mining Registrar at Karratha. The application was made on the form prescribed pursuant to the Regulations. In the space which on the form is headed "Reasons for Exemption", the applicant had inserted:
"Sections 102(2)(b), 102(2)(e) and 102(7) of the Mining Act 1978
That time is required to evaluate work done on the mining tenement, to plan future exploration or mining or raise capital therefor. That the ground the subject of the mining tenement contains a mineral deposit which is uneconomic but which may
reasonably be expected to become economic in the future or that at the relevant time economic or marketing problems are such as not to make the mining operations viable."
On 13 March 2002, Homestake received a letter from the Registrar dated 9 March 2001 which enclosed an objection by David Guests. On 19 March 2001, Homestake received a letter from Statewide Tenement and Advisory Services Pty Ltd ("Statewide") enclosing a copy of the objection and advising that Statewide had been instructed to act on behalf of the objector. On the same date, Homestake received a letter from Statewide enclosing a summons to Plutonic in respect of a plaint filed by the objector. The plaint complained that Plutonic had failed to comply with the expenditure conditions applicable to the tenement for the year ending December 2000 and sought as relief the forfeiture of the mining lease and the grant to the objector of a right of priority to mark out the ground the subject of it.
By letter dated 5 April 2001, the Registrar advised Homestake that these matters had been adjourned to 1 May 2001 for mention, that there was no requirement for any party to attend on that day, but that to assist with the settling of a hearing date the Warden required the filing of notification of the number of witnesses Plutonic intended to call, the expected duration of the defence, and unavailable dates.
On 11 April Homestake received a letter enclosing a request for further and better particulars of the exemption application. On 4 May 2001, Homestake received a letter from the Registrar advising that on 1 May 2001 in the Karratha Warden's Court, in accordance with a request from counsel for the objector, the Warden ordered Plutonic to file and serve further and better particulars of the reasons for exemption in answer to the objector's request for further and better particulars of application for exemption dated 10 April 2001, and to do so within 14 days. It appears that neither Homestake nor Plutonic had notice prior to 1 May 2001 that the question of particulars would be raised with the Warden or that any order of the kind made would be sought. Ms Webster, who acts as counsel for and is company secretary of Homestake, spoke with the Registrar by telephone on 7 May 2001 about the order which had been made, and sent two facsimile transmissions to him on the same date. Those facsimiles contained submissions on behalf of Plutonic noting that the objector did not notify Plutonic of its intention to seek an order for particulars, and citing a number of authorities which Plutonic contended supported its argument that the Mining Warden had no power to make the order which had been made. Plutonic sought to have the matter revisited by the Warden in a hearing on 8 May 2001. By letter dated 22 May 2001, the Registrar advised that the Warden had instructed him that Plutonic's submissions had been considered but that he had made no amendment and that the orders were to stand.
Clearly, there has been a breach of the rules of natural justice in the way in which the order for particulars came to be made. Plutonic should have been given notice of the application, and an opportunity to be heard on it. As well as arguing the jurisdictional question, it may have wished to put before the Warden matters relevant to the content of the order to be made, if the Warden found against them on the question of jurisdiction. However, the applicant does not seek certiorari on that basis. Rather, it is sought to quash the decision on the ground that the Warden erred in making the order, because he lacked jurisdiction to do so.
The statutory framework
Before turning to the substance of the applicant's argument, and the consequences which may flow from it, it is convenient to refer to the statutory framework surrounding the applications of which the Warden is seized. Where the requirements of the Mining Act are not complied with in respect of the expenditure conditions applicable to a mining lease, "any person" may apply to the Warden for forfeiture of the lease: s 98. The application for forfeiture is to be heard in open court by the Warden. Where the Warden finds that the holder has failed to comply with the expenditure requirements, the Warden may recommend forfeiture of the lease or may impose a penalty not exceeding $5,000 as an alternative to forfeiture, or may dismiss the application. Where a penalty is imposed, the Warden may award the whole amount of the penalty or any part thereof to the applicant: s 98. Where a mining lease is forfeited pursuant to these provisions, the applicant for forfeiture has, for a period of 14 days after publication of the notice of forfeiture, a right in priority to any other person to mark out or apply for a mining tenement upon the whole or part of the land the subject of the forfeited lease: s 100.
So far as exemption from expenditure conditions is concerned, an application may be made by the holder of a mining tenement within a prescribed period for a certificate of exemption totally or partially exempting the tenement from the prescribed expenditure conditions relating thereto: s 102. Section 102(2), (3) and (5) read as follows:
"102. Exemption from expenditure conditions
...
(2)A certificate of exemption may be granted for any of the following reasons –
(a)that the title to the mining tenement is in dispute;
(b)that time is required to evaluate work done on the mining tenement, to plan future exploration or mining or raise capital therefor;
(c)that time is required to purchase and erect plant and machinery;
(d)that the ground the subject of the mining tenement is for any sufficient reason unworkable;
(e)that the ground the subject of the mining tenement contains a mineral deposit which is uneconomic but which may reasonably be expected to become economic in the future or that at the relevant time economic or marketing problems are such as not to make the mining operations viable;
(f)that the ground the subject of the mining tenement contains mineral ore which is required to sustain the future operations of an existing or proposed mining operation;
(g)that political, environmental or other difficulties in obtaining requisite approvals prevent mining or restrict it in a manner that is, or subject to conditions that are, for the time being impracticable; or
(h)that the mining tenement is comprised within a project involving more than one tenement, and that expenditure on a tenement or tenements comprised in that project would have been such as to satisfy the expenditure requirements in relation to the tenement concerned had that aggregate expenditure been apportioned in respect of the various tenements comprised in the project.
(3)Notwithstanding that the reasons given for the application for exemption are not amongst those set out in subsection (2), a certificate of exemption may also be granted for any other reason which may be prescribed or which in the opinion of the Minister is sufficient to justify such exemption.
...
(5)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.
... "
The Mining Regulations 1981 set out the manner in which the application should be made. Regulation 54 relevantly provides:
"54. Application for certificate of exemption
(1)An application for a certificate of exemption under section 102 shall be made in the form No. 18 in the First Schedule and lodged at the office of the mining registrar with the prescribed fee.
...
(3)An applicant for a certificate of exemption under section 102 or 102A shall also lodge at the office of the mining registrar, reasons in the form of a statutory declaration supporting the application for the certificate of exemption:
(a)within 28 days of the lodgement of the application; or
(b)within such further period as the Director General of Mines may approve prior to the expiry of the period referred to in paragraph (a)."
Regulation 90 prescribes that all forms must be filled out in accordance with the directions set out in the forms. The form from which I have quoted earlier, Form 18, as I have noted, has a space which is to be filled out which is entitled "Reasons for Exemption" and was in this case filled out in the manner in which I have described.
We were advised by counsel that the practice in the Warden's Court is that if there is no objection the statutory declaration forms the basis of consideration of the application. If there is an objection, however, the statutory declaration is not made available to the objectors, nor does it form any part of the proceedings heard by the Warden in open court pursuant to s 102. It appears that it is, in effect, superseded by those proceedings.
Issues in the application.
The application for the order nisi in this matter was not made ex parte, and before Roberts‑Smith J counsel for the objector appeared and made submissions. The objector did not appear before us, but leave was granted to counsel representing the Attorney General to appear as amicus curiae. The thrust of submissions both by the objector and by the amicus curiae appeared to be broadly similar.
As I understand it, it is conceded on all sides that when hearing an application for exemption from expenditure conditions, or an objection to such an application, or a plaint for forfeiture of a mining lease, the Mining Warden sits in an administrative and not a judicial capacity. This follows from the decisions of this Court in Re Calder; Ex parte Gardner (1999) 20 WAR 525 and Re Malley; Ex parte Gardner [2001] WASCA 29. As a result, Pt VIII of the Mining Act does not apply to such proceedings, and there is no importation of the Local Court Rules pursuant to s 136 of the Act to govern practice and procedure in relation to those hearings. Nor can the Mining Warden sitting administratively exercise any inherent jurisdiction which might flow from the exercise of judicial power.
However, the point of departure between the applicant on the one hand and the objector and the Attorney General on the other, is that the applicant appears to proceed on the assumption that if the Warden is not exercising a judicial power then he or she can have no capacity to direct the form which the proceedings should take or to ensure that particulars are made available to an objector. The objector and the Attorney General on the other hand, submit that even if sitting administratively, the Warden has an inherent power to ensure that principles of natural justice are observed. A further limb of this submission, which was developed before Roberts‑Smith J, involved the submission that the Form 18 which had been submitted by the applicant was defective, in that it did not adequately describe the reasons upon which the application was based, and that the Warden must have inherent power to require that defect to be remedied.
The relevant issues then are: what is required of an applicant in filling out Form 18; the extent to which principles of natural justice apply to hearings of the kind under consideration here; and what powers, if any, a Warden has to ensure that those principles are observed.
Form 18 Requirements
In my view, it is not necessary, in filling out the Form 18, for the applicant to set out the material facts and circumstances upon it which it relies in order to justify the request for exemption. Rather, it is sufficient for what might in other contexts be called the grounds of the application to be identified broadly, by reference to the statute and the reasons listed in s 102(2) or by reference to some other reason which is either prescribed pursuant to s 102(3) or which the applicant considers the Minister may consider sufficient.
There are two principal reasons for reaching this view. First, Form 18, in using the word "reasons", duplicates the expression to be found in s 102(2); one may infer that the reasons which are sought are matters which are able to be identified, by reference to the statute, as appropriate reasons. Second, reg 54 requires "reasons in the form of a statutory declaration" to be lodged in addition to the application. It is reasonable to assume that the intention is not that the statutory declaration will simply duplicate material in the application, but that it will be a more detailed statement of the matters relied upon as justifying the exemption. Because those two documents are required to be lodged, it appears to me that the application is required only to contain "reasons" sufficient to enable the Warden to form a view as to whether or not the application falls within the scope of s 102, while the statutory declaration would contain the material facts and circumstances relied upon to demonstrate the existence of the reason or reasons identified.
Natural Justice
However, whatever the content which is required in the application, it is my view that the principles of natural justice apply in respect of both an applicant for exemption and an objector to such an application, as well as to an applicant for forfeiture and the respondent to such an application. So far as the objector/applicant for forfeiture is concerned, the scheme of the Act is such that expenditure conditions are imposed in order to ensure that those who have exclusive access, for a time, to what would otherwise be a public resource, use their best endeavours to exploit it. Such a requirement is in the interests of the community generally. This broad public interest is advanced by, among other things, enabling any person to make an application for forfeiture and by permitting objections to applications for exemption from expenditure conditions. A person who makes such an application or objection expends his or her own time and resources in doing so; that is, the person to that extent incurs a detriment. If the applicant for forfeiture is successful, he or she may obtain a benefit either by way of award of a sum imposed as penalty, or by way of the statutory priority accorded on forfeiture.
The relationship between the applications is such that, if the application for exemption is successful, then the application for forfeiture must fail, while if the application for exemption is unsuccessful, the likelihood of the application for forfeiture being successful is enhanced; for this reason such applications are generally heard together. In those circumstances, the objector/applicant for forfeiture, has an interest sufficient to require that he or she be given an opportunity to be heard. In order for such an opportunity to be more than merely an illusory one, the objector requires to know the factual basis upon which the application for exemption comes to be made, so that the objector can properly put forward materials in opposition to the application.
The observations which I have made are, it appears to me, in accordance with the principles set out in the reasons for decision of Ipp J (with whom Malcolm CJ and Kennedy J agreed) in Ex Parte Peko Exploration Ltd, unreported; FCt SCt of WA; Library No 970613; 14 November 1997. His Honour in that case observed that there was an analogy between the forms required under the mining regulations and the pleadings in judicial proceedings. His Honour took the view that the various forms prescribed under the Act fulfilled a purpose similar to that of pleading, since proper compliance with them resulted in the issues being crystallised and the parties involved being given reasonable notice of the case which they have to meet. His Honour went on to make certain observations about the importance of the need properly to particularise the basis of claims and defences in proceedings before the Warden. Those observations as to the importance of the particularisation of claims and defences clearly proceed from an assumption that the principles of natural justice are applicable.
The only point of difference between the observations of his Honour and the views which I have expressed, appears to be that in his Honour's reasons there is an assumption that the statutory declaration fulfils the function of setting out the "reasons for exemption" which are required to be stated by Form 18, whereas I have reached the view that the reasons to be stated on the Form 18 are somewhat briefer and more general than those required by the statutory declaration. In the particular case before his Honour, it appears that the application (that is, the Form 18) itself specified that the particulars of the exemption sought were set out in the statutory declaration, which was attached to the application. There would, I think, be no objection to a statutory declaration being attached to the application, and this would be a convenient way of ensuring that any potential objector had notice of the relevant facts and circumstances relied upon. However, it may on occasion be that an applicant for exemption wishes to rely upon confidential material, or material which it would not wish to be generally known to potential objectors (who may well be competitors). In those cases, one can see the appropriateness of the separation of the two documents, and of the practice which has apparently developed of not making the statutory declaration available to objectors. However, in those circumstances the procedure set out by the Regulations will not adequately ensure that the requirements of natural justice are fulfilled.
The Warden's Powers
Where an applicant for exemption fills in its reasons for exemption on the Form 18 with great generality, as has occurred here, and where a statutory declaration is not made available to an objector, it is the duty of the Warden to ensure that the objector is afforded natural justice. This can be done in a number of ways.
One way would be, as the applicant in this case suggested, to proceed to hearing, to allow the applicant for exemption to outline the grounds upon which the exemption is sought, and to grant the objector an adjournment if there were matters which took the objector by surprise or required further investigation. The difficulty with this course in many cases is that it is likely to maximise inconvenience and expense. Where the application is filled out with great generality, it is likely that the objector will be taken by surprise. The inconvenience and expense of an adjournment is obvious in most proceedings, and particularly where, as in this case, proceedings may be conducted a considerable distance from the place in which witnesses for the parties, and those representing the parties, may be located. There is no incentive for the applicant for exemption to ensure that proceedings are conducted expeditiously, since the holder of the tenement is relieved of the expenditure obligation whilst the application for forfeiture is on foot.
Alternatively, it is I think open to the Warden to set a program with which the parties must comply in order to ensure that each is afforded natural justice. The Warden could direct the applicant for exemption to furnish the objector with a statement of the material facts and circumstances upon which the applicant proposes to rely at the hearing of the application for exemption (making, where necessary, provision for the applicant to seek some variation of the direction where the material to be relied upon might be of a sensitive nature). Where a direction for a statement of facts and circumstances was given, it would be up to the applicant to comply or not, since there appears to me to be no way in which the Warden could be seen to have jurisdiction to enforce such a direction.
However, if the applicant either failed to comply with such a direction at all, or complied in a way which was inadequate and which had the result that the objector was taken by surprise at the hearing, it would in my view be open to the Warden to refuse to permit the applicant to adduce evidence or to rely upon material which had not been made available to the objector in accordance with the Warden's direction. This is the course which was taken by the Warden in Ex parte Peko Exploration Ltd. In that case, the Warden refused to accept evidence which did not relate to any issue referred to in the statutory declaration (which in that case formed part of the application). The Full Court took the view that the Warden was correct in refusing to admit that evidence. Of course, the Warden would not be required to refuse to accept such evidence; it would be a matter for the exercise of the Warden's discretion in all the circumstances of the case, and on occasion it might be appropriate either to grant an adjournment or, depending upon the nature of the material and the reason for not making it available at an earlier time, to permit the objector some form of written or other reply subsequent to the hearing.
For the sake of completeness, I should note the applicant's argument that it would not be open to the Warden to refuse to admit evidence in circumstances of the kind postulated above. That submission appeared to flow from the statutory requirement that the application for a certificate of exemption "shall be heard by the Warden ... " (s 102(5)), and from reg 56, which provides that where an objection is lodged, "the Warden shall receive evidence in open court in support of the application and in support of any objection ... ". In my view, this misconceives the statutory command. A requirement that the Warden hear evidence is not a requirement that the Warden receive all material which the applicant chooses to put before him. Rather, it is a requirement to hear evidence which is relevant and to hear in accordance with the requirements of natural justice; those requirements may on occasion lead the Warden to the conclusion that it is not appropriate to receive certain portions of material which it is sought to put forward as evidence.
Applying the principles set out above to the order for particulars made by the Mining Warden, there appear to be two difficulties with the order. The first is that it is expressed as an "order" – which term appears to suggest an exercise of judicial power – rather than as a "direction" made in the course of an administrative proceeding. That inappropriate terminology has no practical effect, and I would not quash the order on that ground.
The second problem is that the order made may, in its detail, stray beyond what is required to ensure that the objector is afforded natural justice. The order for particulars requires Plutonic to provide all of the following information:
"1.Mining Act s 102(2)(b) Ground
A.Time to Evaluate Work Done
1.1The work done on each tenement requiring evaluation;
1.2The evaluation required upon all such work;
1.3The reasons why such work could not be evaluated during the relevant periods for which exemption is sought;
1.4The reasons time was required to evaluate such work.
B.Time to Plan Future Exploration
1.5The proposed plans for future exploration;
1.6The reasons why such exploration could not be planned during the relevant periods for which exemption is sought;
1.7The reasons time was required to plan such future exploration.
C.Time to Plan Future Mining
1.8The proposed plans for future mining;
1.9The reasons why such mining could not be planned during the relevant periods for which exemption is sought;
1.10The reasons time was required to plan such future mining.
D.Time to Raise Capital
1.11The reasons capital is required in each case to:
(a)evaluate work done; and
(b)plan future exploration; and
(c)carry out such exploration; and
(d)plan future mining; and
(e)carry out such mining;
1.12The amount of capital required in each case to:
(a)evaluate work done; and
(b)plan future exploration; and
(c)carry out such exploration; and
(d)plan future mining; and
(e)carry out such mining;
1.13How it is proposed to raise such capital (in each case);
1.14The reasons why such capital (in each case) could not be raised in the relevant expenditure years for which exemption is sought.
2.Mining Act s 102(2)(f) Ground
2.1For the affected tenement (M47/223):
(a)the type; and
(b)the quantity
of the mineral deposit.
2.2The reasons by which the mineral deposit is uneconomic.
2.3The reasons by which the mineral deposit may reasonably be expected to become economic.
2.4The time and reason by which the minerals deposit may reasonably be expected to become economic.
2.5The mining operations referred to.
2.6The economic problems referred to.
2.7The marketing problems referred to.
2.8The reasons by which the mining operations will not be viable during the relevant time.
3.Mining Act s 102(7) Ground
The reasons exemption is sought for each of the expenditure years ending:
(a)27 December 2000;
(b)27 December 2001;
(c)27 December 2002."
It can be seen that much of the information provided may or may not be of relevance to the application. For example, in par 1(B), it is conceivable that some serious problem affecting Plutonic in the relevant years was such that resources could not be spared to plan future exploration, or it may be that economic uncertainty affecting the cost or possible manner of such exploration made detailed planning at the relevant time an impossibility. In such a case, "proposed plans for future exploration", if they existed, would not appear likely to affect the Warden's decision at all.
However, some of the particulars required are expressed with generality, and would leave it open to Plutonic to provide only that information which was necessary to give notice of the facts and circumstances upon which it actually proposed to rely. It appears to me that it would have been open to the Warden to make a direction that Plutonic provide information in terms of pars 1A 1.4; 1B 1.7, 1C 1.10; 1D 1.11 and 1.14; 2.2, 2.3, 2.6, 2.7 and 3(a),(b) and (c). As I have noted, such a direction would not be enforceable, in the sense that Plutonic could be compelled to obey it; however, if Plutonic's failure to comply appeared likely to result in unfairness to the objector, the Warden could take steps of the kind which I have earlier discussed in order to avoid unfairness.
Conclusion
It follows from these reasons that the order nisi should be made absolute on the basis that the Warden lacked power to direct that the applicant furnish particulars in the precise manner set out in the Warden's order. However, the decision made by his Worship was to grant an order which appears to me to be severable. The only portions of the decision which should be quashed are those paragraphs ordering particulars other than the paragraphs which I have set out at par [33] above.
MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Wheeler J and I agree with those reasons and with the conclusion reached by her Honour that the order nisi should be made absolute on the limited basis that her Honour has determined.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: RE NICHOLLS SM; EX PARTE PLUTONIC OPERATIONS LTD [2002] WASCA 232 (S)
CORAM: WHEELER J
HEARD: 12 JUNE & 28 AUGUST 2002
DELIVERED : 28 AUGUST 2002
SUPPLEMENTARY
DECISION :4 DECEMBER 2002
FILE NO/S: CIV 1780 of 2001
MATTER :Objection KR14/001 by DAVID GUEST to Application for Exemption from Expenditure Conditions KR73/001 by PLUTONIC OPERATIONS LTD affecting Mining Lease M47/223
Application for a Writ of Certiorari against the Warden sitting at Karratha, PAUL NICHOLLS SM
EX PARTE
PLUTONIC OPERATIONS LTD
Applicant
Catchwords:
Costs - Order nisi for certiorari hearing - Order absolute hearing - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r1(1)
Supreme Court Act 1935 (WA), s 37
Result:
Application allowed in part
Category: B
Representation:
Counsel:
Applicant: Mr M T McKenna
Amicus Curiae : Mr C C Lomma
Solicitors:
Applicant: Hunt & Humphry
Amicus Curiae : State Crown Solicitor
Case(s) referred to in judgment(s):
Re Nicholls SM; Ex Parte Plutonic Operations Ltd [2002] WASCA 232
Case(s) also cited:
Re Malley SM; ex parte Gardner [2001] WASCA 29
Re Malley SM; ex parte Gardner [2001] WASCA 83
WHEELER J:
1.On 28 August 2002 the Court delivered judgment in Re Nicholls SM; Ex Parte Plutonic Operations Ltd [2002] WASCA 232, making absolute an order nisi for certiorari granted by Robert‑Smith J on 20 June 2001. The applicant now seeks its costs from the objector for both the order nisi stage and the order absolute hearing.
2.The general rule, found in O 66 r1(1) of the Rules of the Supreme Court 1971 (WA), is that the successful party to an action recovers costs. This is subject to the wide discretion given to the court in respect of costs in s 37 of the Supreme Court Act 1935 (WA).
3.The applicant correctly submits that it was wholly successful in obtaining the order nisi, which the objector unsuccessfully opposed. I see no reason not to award it its costs of that hearing. While it might often be appropriate for the costs of the order nisi to follow the result of the order absolute, on this occasion somewhat different arguments were presented at this stage, and the objector participated only in the order nisi hearing, appearing by counsel and opposing the grant of the order nisi.
4.However with respect to the order absolute hearing I am not persuaded that an order requiring the objector to pay the costs of the applicant is appropriate. The objector did not participate in the order absolute hearing. He filed a notice of intention to abide the decision of the Court on 15 May 2002, stating that save as to the question of costs he did not intend to be heard and would make no submissions. Further, in the end the applicant was only partly successful. The Court held that the order nisi for a writ of certiorari should be absolute, and that the orders of the Warden be quashed, but in part only.
5.The orders will be that objector pays the applicant's costs of the order nisi hearing to be taxed and there will be no order as to costs of the order absolute hearing.
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