Re Nicholls SM

Case [2002] WASCA 232


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

  1. 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.

  2. 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

  1. The history which follows is taken very substantially from the useful summary of facts to be found in…

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Re Nicholls SM [2002] WASCA 232
Case
[2002] WASCA 232
Decision Date

CaseChat Overview and Summary

In the matter of Re Nicholls SM, the parties involved were engaged in a dispute concerning a mining lease and an application for exemption from expenditure conditions. The case was heard by the Warden's Court of Western Australia, which operates in both a judicial and administrative capacity. The central issue before the court was whether the application for exemption met the requirements set out in Form 18 and whether the principles of natural justice were appropriately applied during the proceedings.

The legal issues that needed to be resolved included the interpretation of Form 18 and the statutory declaration in the context of the mining regulations, the application of the principles of natural justice to administrative proceedings before the Warden's Court, and the Warden's power to direct particulars or a statement of material facts. The court had to determine whether the application for exemption sufficiently detailed the reasons for exemption, and if not, whether the Warden took appropriate measures to ensure that the objector was afforded natural justice.

In delivering the decision, the court considered the principles set out in the reasons for decision of Ipp J in Ex Parte Peko Exploration Ltd. It was noted that the forms required under the mining regulations served a purpose similar to pleadings in judicial proceedings, crystallising issues and providing notice to the parties. The court emphasised the importance of particularising claims and defences and the need for the Warden to ensure that objectors were not prejudiced due to the generality of the reasons stated in the Form 18. The court held that where an application was filled out with great generality, the Warden had a duty to take steps to ensure that the objector was not unfairly disadvantaged, which could include allowing the applicant to outline the grounds for exemption and granting an adjournment if necessary.

The court concluded that while the statutory declaration could be attached to the application, the separation of documents might be appropriate in cases involving confidential material. However, when the application was filled out generally and the statutory declaration was not made available to the objector, it was the Warden's responsibility to ensure that natural justice was observed. This could involve directing particulars or a statement of material facts to clarify the grounds for exemption.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHEELER J

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Ratio Decidendi

Legal Principle Established

Established by: WHEELER J

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. 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.