Re Roberts SM; Ex parte Burge
[2003] WASCA 2
•17 JANUARY 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: RE ROBERTS SM; EX PARTE BURGE & ANOR [2003] WASCA 2
CORAM: ANDERSON J
PARKER J
OLSSON AUJ
HEARD: 9 DECEMBER 2002
DELIVERED : 17 JANUARY 2003
FILE NO/S: CIV 1493 of 2002
MATTER :Application for a Writ of Certiorari against His Worship NORMAN LEONARD ROBERTS SM of Warden's Court, Mt Magnet
EX PARTE
DAVID JOHN BURGE
JOAN BURGE
Applicants
Catchwords:
Mining - Administrative law - Certiorari - Application for forfeiture of prospecting licence - Application to convert prospecting licence to a mining lease - Status and role of Warden - Nature of proceedings - Denial of procedural fairness - No adequate reasons - Whether reasons part of record - Whether error on face of record - Whether jurisdictional error - Availability of prerogative relief - Both applications heard together - Forfeiture application upheld - Application to convert refused - Nature of proceedings - Availability of prerogative relief - Denial of procedural fairness - No adequate reasons - Whether error on the face of the record - Whether jurisdictional error
Legislation:
Mining Act 1978 (WA), s 49, s 75(5), s 102, s 132, s 151(b)
Mining Regulations 1981 (WA), s 15, s 52
Result:
Order nisi for certiorari made absolute
Applications remitted to different Warden for rehearing de novo
Category: A
Representation:
Counsel:
Applicants: Ms C A McKenzie
Objector: Mr A J Goldfinch
Solicitors:
Applicants: McKenzie Lalor
Objector: A J Goldfinch & Associates
Case(s) referred to in judgment(s):
Charleston v Smith [1999] WASCA 261
Craig v State of South Australia (1995) 184 CLR 163
Danagher v Racing Penalties Appeal Tribunal (1995) 13 WAR 531
Denver Chemical Manufacturing Company v The Commissioner of Taxation (New South Wales) (1949) 79 CLR 296
Donges v Ratcliffe [1975] 1 NSWLR 501
Dornan v Riordan (1990) 95 ALR 451
Hazlett &Soklich v Rasmussen, May & Piper [1973] WAR 141
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11
Pettitt v Dunkley [1971] 1 NSWLR 376
R v Harlock; Ex parte Stanford & Atkinson Pty Ltd [1974] WAR 101
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
Re Calder; Ex parte St Barbara Mines Ltd [1999] WASCA 25
Re Minister for Mines, Fuel & Energy; Ex parte Trythall (1991) 7 WAR 375
Re Western Australian Trotting Association; Ex parte Chambers (1992) 9 WAR 178
Repatriation Commission v O'Brien (1984‑1985) 155 CLR 422
Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247
T v Medical Board of South Australia (1992) 58 SASR 382
Tortola Pty Ltd v Saladar Pty Ltd [1985] WAR 195
Wade v Burns (1966) 115 CLR 537
Case(s) also cited:
Nil
ANDERSON J: I agree with the judgment of Olsson AUJ and with the orders which he proposes. I also agree that the defendants should be at liberty to apply to vary the order nisi in the manner indicated by Olsson AUJ.
PARKER J: I agree with the reasons published by Olsson AUJ and the orders proposed by his Honour.
OLSSON AUJ: This matter comes before the Full Court pursuant to an order nisi for a writ of certiorari made by White AUJ on 14 June 2002. That order identifies a series of issues which have arisen in relation to proceedings which were heard by the Mt Magnet Mining Warden on 21 August 2001.
Unfortunately neither of the two disputants before the Warden were legally represented, with the result that the proceedings went forward before him in what can only be described as a very untidy fashion.
The matters before the Warden
The Warden had before him two separate, but related, matters.
The first of these was a plaint (24/001) by Warwick John Flint ("the plaintiff") filed on 19 March 2001. This asserted that the present applicants, David John Burge and John Burge ("the defendants"), had failed to comply with the prescribed expenditure conditions "in respect to Prospecting Licence 59/1443 for the year ended 02/04/01". It sought orders that such Licence be forfeited in accordance with s 98 of the Mining Act 1978 and that Flint be given preferential right to apply for the ground presently covered by the Licence. The defendants filed a defence to that claim on 4 April 2001. They contended that they had, in fact, complied with the relevant statutory requirements. I will refer to this matter as "the forfeiture application".
The second was an application (59/546) filed by the defendants on 21 March 2001 in which they sought, in effect, to convert the above Licence to a mining lease pursuant to the provisions of s 49 of the Mining Act 1978. The plaintiff filed an objection (12/012) to that application on 11 December 2001. In it he alleged that the applicants had not marked out the relevant prospecting licence in accordance with the Mining Act and regulations made pursuant to it. I will refer to the s 49 application as "the conversion application".
Both matters were called on and heard together at Mt Magnet, with the result that the evidence and argument with relation to them became inextricably intermingled.
Although the relevant transcript simply terminates with some brief discussion at the conclusion of the evidence of the final witness, it is to be inferred that the Warden reserved his decision at the conclusion of the hearing.
A further segment of transcript in the copy documents before this Court indicates that the proceedings were again called on before the Warden at Leonora on 22 November 2001. A bare reading of it does not clearly indicate who, other than the plaintiff, appeared in relation to this matter, or in what capacities. The transcript merely reads as follows:
"THE WARDEN: Mr Flint?
FLINT, MR: Good morning, sir.
THE WARDEN: Good morning, Mr Flint. Have I cause [sic] you some - I should perhaps have apologised to Mr Lawton before as well. I think the matter was set down for some time in June and I failed to appear and so I have caused you inconvenience. I apologise to you and Mr Lawton.
FLINT, MR: No difficulty, sir, thank you.
THE WARDEN: Take a seat, please, Mr Flint. In relation to this matter against Mount Magnet plaint number 24/001 - and I am aware that Mr Calder is about to come in. I shall give detailed reasons at 4 o'clock, and Mr Flint need not be here, so that they're read into the transcript. In relation to this matter, the first question is whether Mr Burge was on the wrong land, but in my view it doesn't have to be decided on that. It appears it may be an expenditure claim which is also extraordinary in its amount and, in my view, false. I shall refer briefly to it.
He claims travel 12 days at $300 amounting to $3600. Days for travelling aren't available to him. He can certainly have the reasonable cost of travelling to and from the tenement but he can't have what is called travelling time. He can't pay himself, his son or his wife any money for that so that amount of $3600 should be struck out completely. Then he says the three of them worked 27 days again at $300 a day. So that is three of them at $100.
In relation to Mr Burge, he also has claimed, as I was indicating, 27 days at $300 a day. He has claimed for himself which, of course, is appropriate, but also for his wife and son. In relation to the son there is just no evidence that Mr Burge paid him anything so in my view also the claim is false. Does that failure justify forfeiture? In my view it does. In my view a penalty in relation to the matter should not be imposed because of the gravity of the amounts. They're certainly highly [sic]. It's not a slip of the pen or a minor amount. The first one of travel is some $3600. So in my view there should be forfeiture of the tenement. Yes, Mr Flint?
FLINT, MR: Thank you very much, sir. I ask that you recommend forfeiture. Sir, I have a competing application over this ground. I would ask that the competing application be heard, but I would still like to wear the belt and have the braces as well. I would also like the section 100 which gives me the right to 14 days' preferential to be invoked as well in case, in the words of the Scottish bard, there's many a slip twixt the cup and lip.
THE WARDEN: 14 days?
FLINT, MR: Preferential pegging right.
THE WARDEN: So you want me to make an order that I recommend that the tenement be forfeited.
FLINT, MR: The tenement be forfeited and 14 days' preferential pegging right be given to the plaintiff.
THE WARDEN: Yes, I will order that, and the competing application to be heard by whom?
FLINT, MR: To be heard in Mount Magnet.
THE WARDEN: The competing application be heard in Mount Magnet.
FLINT, MR: Thank you very much, sir.
THE WARDEN: Thank you, Mr Flint."
No other reasons were ever published by the Warden, so that what is set out above represents the sole reasons expressed by him.
It was said from the Bar table that no notice of the proceedings on 22 November 2001 was given to the defendants. They certainly did not appear and did not have any opportunity of being heard as to orders to be made. It is not clear why the proceedings were called on at Leonora.
According to an affidavit sworn by the male defendant, the next development, from his perspective, appears to have been some form of intimation, on or about 7 December 2001, by the Department of Minerals and Energy to the defendants to the effect that the Warden had upheld the forfeiture application. The defendants had heard nothing since the Warden reserved his decision.
The defendants sought immediate legal advice. Their solicitors made written application to the Department for a copy of the reasons for decision of the Warden. On or about 13 December 2001 they received a copy of the last‑mentioned segment of transcript related to 22 November 2001 from the Department, which was said to constitute the relevant reasons for decision. A copy of the transcript of the original proceedings before the Warden was also sought, but this was not forthcoming until on or about 14 February 2002.
The order nisi for certiorari was thereafter sought.
Relevant narrative history
These proceedings relate to an area of land on the Dalgaranga station near Mt Farmer in the Shire of Yalgoo, which had originally been mined by a company called "Pilgrim Mining" for tantalite. That company was said to have abandoned the site in about August 1981, because the tantalite market collapsed.
According to the male defendant, who had been the mine manager for Pilgrim Mining, the site was an already surveyed lease when, in 1996, he and his wife placed a datum peg on it and applied for conversion to a prospecting licence. As will appear, there is some support for his assertion as to that survey in the official registration records.
An extract from the records of the Mining Registrar at Mt Magnet (Copy documents P96) reveals that the two defendants were granted a Prospecting Licence 59/1443 on 22 October 1996 in respect of an area of 200 hectares delineated from a "datum post situated 800 metres bearing 180 degrees from the south west corner of late surveyed MC59/7117", in the manner described in the official record.
The licence was granted from 3 April 1997 to 2 April 2001, and attracted payment of an annual rental. The Registrar's record reveals that a fine of $50, payable by 16 December 1999, was imposed in respect of the Licence for late payment of the annual licence rental, presumably in respect of the current year. It is common ground that the Registrar incorrectly revoked the Licence for alleged non‑payment of that fine. He was mistaken as to the non‑payment, as his own records reveal that the fine had been paid on 1 December 1999. An application for restoration was lodged and ultimately granted on 23 August 2000.
Pursuant to provisions of reg 15 of the Mining Act Regulations, the defendants were obligated to expend a minimum sum of $40 per hectare per annum in working the site as a statutory condition of the Licence, although due allowance had to be made for any work done by the two licence holders themselves, as provided by reg 15. The rent amount payable is shown in the Registrar's record at $5333 for the year ended 2 April 2001, although it had previously stood at $8000. It was said from the Bar table that the difference was accounted for by an allowance for the period during which the Licence had improperly been revoked. There was no direct evidence as to that, nor any finding as to whether the Registrar's record was correct, or whether the plaintiff's argument that the figure should have remained at $8000 correctly reflected the relevant statutory provisions.
It is to be noted that the reg 15 expenditure requirement runs from year to year, from the anniversary of the original grant of the Licence, although the expenditure can be made at any time up to the end of the year in question. At the hearing before the learned Warden a dispute arose as to what had in fact been expended by the defendants in relation to the relevant tenement for the year ended 2 April 2001. However, as the defendants pointed out, the plaintiff's application for forfeiture was filed on 19 March 2001, ie, prior to the expiration of the then current year. Whatever may be the correct interpretation of reg 52 of the Mining Act Regulations, the application for forfeiture was, on any view, premature.
It seems that, on or about 5 April 2001, the defendants filed a return indicating that they had expended $16,524.75 in activities on the relevant claim during the period 3 April 2000 to 2 April 2001, details of which were:
Loaming, panning, sampling, dollying, dry blowing:
No of days worked - 27 at $300 $ 8100.00
Travel:
No of days worked - 12 at $300 $ 3600.00
Plant and equipment hire $ 3060.73
Fuel, oils, etc $ 481.25
Field supplies (food, consumables, etc) $ 550.00
$15791.98
Annual Tenement Rent and Rates $ 606.93
Administration, etc $ 125.85
$16524.76
A large amount of time at the hearing before the Warden was spent on probing the validity of the various items claimed. It was, for example, contended that no claim could properly be made for labour provided by the defendants' son, because there was no evidence that he had been paid for his work. It was also argued that the travelling time from Kalgoorlie to the site was not properly claimable as a labour cost and that some other items contributing to the totals claimed as expenditure were suspect as to their validity. Another major issue concerning the conversion application focused on whether or not the claim had properly been delineated on the ground, as required by the relevant regulations - an aspect as to which no definitive finding was made by the Warden.
There is no need, for present purposes, to go into these aspects in detail.
The reasons expressed by the Warden
I have already made the point that the only record of the decision and reasons expressed by the learned Warden is what is encapsulated in the transcript of the proceedings on 22 November 2001, conducted in the absence and without the knowledge of the defendants.
There are several comments to be made concerning them.
The first is that they are remarkable for what they do not contain, than for their positive content.
It is trite to say that the onus lay on the plaintiff, as applicant for an order recommending forfeiture, to prove the existence of facts which justified the order sought. In the instant case this meant that, in practical terms, he had to satisfy the learned Warden as to the proper quantum of expenditure required in relation to the relevant tenement in respect of the year ended 2 April 2001, the fact that such sum had not in fact been expended and that the circumstances justified an order of forfeiture - rather than some other penalty such as a fine. It was equally necessary for the learned Warden to arrive at specific factual findings as to these fundamental matters. Quite apart from his clear common law duty to do so, he was also under a specific statutory duty, by virtue of s 75(5)(c) of the Mining Act, to forward to the Minister a report recommending grant or refusal of the mining lease sought in the conversion application and setting out the reasons for that recommendation.
The plaintiff, as objector to the conversion application, plainly bore the onus of making good the factual assertion raised by his objection; and it was necessary for the learned Magistrate to make a positive finding on that score.
A perusal of the relevant transcript of proceedings in the present case reveals that, as I will later demonstrate, what was said by the Warden fell short of constituting proper and adequate reasons for decision as to either application before him. Quite apart from the fact that the content of the transcript did not satisfy the specific requirement imposed by s 75(5)(c) of the Mining Act in relation to the conversion application and made no finding as to the ground of objection, it is impossible to extract from it any definitive findings as to the factual issues which had to be determined in relation to the forfeiture application. Additionally, there is no evidence that any separate formal Report was ever transmitted to the Minister.
The status and role of the Warden
As emerges from the judgment of the Full Court in Re Calder; Ex parte St Barbara Mines Ltd [1999] WASCA 25 ("St Barbara Mines"), a Mining Warden discharges a range of functions pursuant to the provisions of the Mining Act.
A Warden may either be a legally qualified stipendiary Magistrate or some other fit and proper person. However, only a stipendiary Magistrate holding office as a Warden may preside in a Warden's Court.
Part VIII of the statute authorises the establishment of District Warden's Courts, which are constituted inferior courts of record. Such courts are, by s 132, invested with jurisdiction to hear all proceedings "cognizable by any court of civil jurisdiction as arise in respect of:
(a)the area, dimensions, or boundaries of mining tenements;
(b)the title to, and ownership or possession of, mining tenements or mining products;
(c)water to be used for mining and any questions or disputes relating thereto;
(d)trespass or encroachment upon, or injuries to, mining tenements;
(e)specific performance of contracts relating to mining tenements or mining;
(f)transfers and other dispositions of, and charges upon, mining tenements;
(g)trusts relating to mining tenements or mining;
(h)partnerships relating to mining tenements or mining, the existence, formation, and dissolution thereof, the taking of accounts connected therewith, the contribution of the partners as between themselves and the determination of all questions arising between the partners;
(i)contribution by or between persons holding joint or several interests in mining tenements towards rent or other expenses in relation thereto;
(j)encroachment or trespass upon, or injury to, land by reason of mining, whether the land is held under this Act or otherwise;
(k)encroachments upon, injuries to, and matters affecting roads, tramways, railroads or other property of whatever kind constructed, held or occupied under this Act;
(l)the partition, sale, disposal, or division of any mining property, or the proceeds thereof, held by 2 or more persons having conflicting interests therein,
and generally all rights claimed in, under or in relation to any mining tenement or purported mining tenement, or relating to any matter in respect of which jurisdiction is under any provision of this Act conferred upon either the warden’s court or the warden."
It is at once to be noted that, in essence, the jurisdiction of the Court is related to the final resolution of inter partes claims of right, of a nature of those cognisable by any court of civil jurisdiction and which are specifically set out in s 132(1) of the Mining Act. The jurisdiction of the court does not extend to all functions of a Warden pursuant to the Act.
So it is that, in St Barbara Mines, Malcolm CJ expressed the view that proceedings under s 102 relating to a disputed application for exemption for expenditure conditions which ultimately required the Warden to make a report and recommendation to the Minister was that of an administrative tribunal, rather than the exercise of jurisdiction of the Warden's Court. In such a case the final decision is that of the Minister and not the Warden. (See also the reasoning in Hazlett &Soklich v Rasmussen, May & Piper [1973] WAR 141 at 143 ‑ 144 and 146). The same principle is clearly applicable to the conversion application. The Warden plainly acts as an administrative functionary, albeit that, in so doing, he is bound to act judicially. His ultimate function is to report to the Minister, who subsequently makes an independent, final determination of the issue (see s 75(5) and s 75(6)).
On the return of the order nisi, some submissions were advanced as to whether or not, in hearing the forfeiture application in particular, the Warden was sitting as a Warden's Court.
As to this, the first point to be made is that, in terms, such an application is plainly not caught by the express terms of s 132, as recited above. It does not fall within any of the descriptions contained in pars (a) to (l) inclusive.
In the course of his judgment in Re Minister for Mines, Fuel & Energy; Ex parte Trythall (1991) 7 WAR 375 ("Trythall"), Murray J (at 389, 390) reviewed the reasoning in authorities such as Wade v Burns (1966) 115 CLR 537, R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 and Tortola Pty Ltd v Saladar Pty Ltd [1985] WAR 195. He pointed out that the function of a Warden in making a decision on an objection to the grant of a Prospecting Licence, whilst not an entirely ministerial act (albeit one to be performed judicially and in "open Court"), was not a civil proceeding of a class contemplated by s 132. It was thus not a matter falling within the jurisdiction of the Warden's Court, as such.
Whilst, in the old case of R v Harlock; Ex parte Stanford & Atkinson Pty Ltd [1974] WAR 101, Hale J accepted, in absence of contrary argument, that an application for forfeiture under the provisions of reg 179 of the regulations made pursuant to the Mining Act 1904, as it then stood, was a proceeding within the jurisdiction of the Warden's Court, it seems to me that the conclusion in that case is inconsistent with the later reasoning in Trythall.
Applying the reasoning of Murray J in Trythall, I consider that, under the present legislation, a disputed forfeiture plaint is not a civil proceeding of the nature recognised by s 132 of the Mining Act and that the Warden sits as an administrative tribunal, notwithstanding that there is not, as under s 56, an appeal to the Minister. In so concluding, I do not ignore the reference in s 151(b) to forfeiture. That section also refers to recommendations such as those under consideration in Trythall and is, in my opinion, mainly intended as a general privative provision, spanning all relevant aspects referred to.
Does prerogative relief lie?
The decision of the High Court in Craig v State of South Australia (1995) 184 CLR 163, inter alia, stands as authority as to the circumstances in which certiorari will run, to correct error of an inferior court or tribunal.
The prerogative remedy is available in relation to determinations of inferior courts and tribunals in cases of jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud, and error on the face of the record. Where the remedy is sought on any of the first three grounds, this Court may take account of any relevant material before it (Craig at par 176). However, where the last is relied on, this Court may only consider an error which is apparent on the face of what may properly be said to be the relevant record.
The order nisi in this matter indicates that the defendants seek to found the claim to relief as to the forfeiture order, on error on the face of the record; and, as to the refusal to recommend conversion, on non‑observance of procedural fairness. It is convenient to examine the complaints made separately as to the forfeiture application, on the one hand, and the recommendation for refusal on the other.
The forfeiture application
On the return of the order nisi counsel for the defendants not only sought to argue error on the face of the record and an initial reliance on one matter said to constitute procedural unfairness, but also presented arguments which, in reality, raised questions of jurisdictional error.
In addressing this aspect of the proceedings, it must be said that it is somewhat surprising that the defendants have, in applying for the order nisi, sought to characterise the situation on the narrow basis pleaded. It seems to me that, on any view, the defendants have been denied procedural fairness in this matter. Not having received notice of the sitting of the Warden at Leonora on 22 November 2001, they were not afforded any opportunity of addressing the Warden as to the orders proper to be made.
A two‑stage process was clearly envisaged by the statute. First, the Warden was called upon to make express findings of fact as to whether a ground had been made out under s 96(2), so as to found a basis for the making of an order under the section. Second, he then had to decide, in light of the findings made, which of the various orders open under s (2)(a) and s (3) were appropriate, having regard to these findings. Little was said as to the latter aspect on 21 August 2001 and only the plaintiff was heard as to it on 21 November 2001. Moreover, the Warden seems, principally, to have based his decision as to whether imposition of a penalty was appropriate on what might well be argued to have been a largely irrelevant basis - namely the gravity of making what he thought were baseless and inflated expenditure claims, as opposed to the nature and extent of actual expenditure, by way of contrast with that required by the Regulations.
The question of what precise order was appropriate was a matter concerning which it was plainly inappropriate to hear one party in the absence of the other. It, prima facie, gave rise to a denial of procedural fairness amounting to non‑fulfilment of the warden's function and thus, also jurisdictional error. (Cf the reasoning in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, albeit in relation to a quite different legislative setting.)
It is also to be noted that, although the ground of error of law on the face of the record is essentially based on a failure to express proper findings, the alleged ground of denial of procedural fairness on the basis of a failure to give proper reasons expressed in the order nisi appears, in terms, to be limited to the conversion application.
It has repeatedly been held that a failure by a court or tribunal to give adequate reasons for decision constitutes a clear error of law, particularly where the effect of that failure is such that an appellate or review Court cannot discern the basis upon which an ultimate conclusion has been come to. (See the authorities adverted to by Malcolm CJ in Charleston v Smith [1999] WASCA 261 and those referred to in my own judgment in T v Medical Board of South Australia (1992) 58 SASR 382 at 408). Those authorities establish the proposition that, if reasons given are so inadequate that it is impossible, on appeal, to perceive how critical factual issues or the application of key legal principles have been resolved, then the court or tribunal in question has not properly fulfilled the function which the law calls upon it, as a judicial entity, to exercise.
At the very least this constitutes an error of law. In the course of his judgment in Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 273 Mahoney JA expressed the view that, in the case of an inferior court, a failure to make critical findings of fact may well "constitute defects of jurisdiction to which prerogative relief will go". With respect, this must logically be so, bearing in mind what fell from Moffitt JA in Pettitt v Dunkley [1971] 1 NSWLR 376 at 389. As he there demonstrated, such a failure is a failure to grant due process and, adequately, to discharge the judicial function. Viewed in that light it is, in reality, a failure properly to exercise the jurisdiction vested in the relevant judicial officer. (See also Donges v Ratcliffe [1975] 1 NSWLR 501 and the type of reasoning expressed by Brennan J (as he then was) in Repatriation Commission v O'Brien (1984‑1985) 155 CLR 422 at 446 and Dixon J (as he then was) in Denver Chemical Manufacturing Company v The Commissioner of Taxation (New South Wales) (1949) 79 CLR 296 at 313.)
I make reference to these aspects at this juncture because, despite a failure to expressly raise them in the order nisi apropos the forfeiture application, they are really no less applicable to it than to the conversion application - the more so as what was said by the Warden inextricably links both proceedings which, in practical terms, went forward as a single, integrated matter.
This brings me back to the express basis of the attack on the decision of the Warden as to the forfeiture application.
As has been seen, it is fairly and squarely based on an error on the face of the record, consisting of a failure to give adequate reasons. (CfDornan v Riordan (1990) 95 ALR 451) ("Dornan").
Having regard to the authorities to which I have referred, if the reasons expressed by the Warden on 22 November 2001 can be said to constitute part of the relevant record, then there has been demonstrable patent error.
He has failed to make any express finding as to what was the expenditure requirement in the particular circumstances and it is also impossible to determine what was his ultimate conclusion as to the net actual level of expenditure which had occurred, given the disputes which arose at the hearing. There is no express finding of failure to satisfy the statutory requirement, so as to found an order of forfeiture, and there are no clear findings or conclusions as to why the appropriate sanction ought to be forfeiture, rather than the imposition of a penalty. As I have earlier pointed out, it is difficult to perceive how the disallowances of some items of expenditure as too high or impermissible can, of themselves, constitute a relevant consideration in the exercise of the relevant statutory discretion.
As a consequence of those factors, it becomes impossible to determine the basis of the Warden's decision.
In Craig the High Court recognised that there were important differences between inferior courts and administrative tribunals as to what could be said to constitute the face of the record. In the former case the "pleadings" and the actual adjudication (but not the transcript or reasons for decision) are normally considered to constitute the "record", although the relevant order may expressly incorporate some portion of the reasons. However, the situation is not necessarily so clear cut in the case of an administrative tribunal, as appears from the judgment of Murray J in Danagher v Racing Appeals Penalties Tribunal (1995) 13 WAR 531.
As emerges from Re Western Australian Trotting Association; Ex parte Chambers (1992) 9 WAR 178, what constitutes the record necessarily varies from case to case. As in that case, it may well be said the record of the formal determination of the forfeiture application is the transcript of 22 November 2001 and such reasons as exist in it which immediately precede the ultimate conclusion expressed. In practical terms both the reasons and the decision are inextricably intermingled, as are the two quite separate proceedings to which they relate.
I would therefore hold that, as to the forfeiture application, the defendants have made good their assertion of error on the face of the record which vitiates the decision come to. Lest I am incorrect as to this, I would afford the defendants an opportunity of applying to vary the order nisi to also invoke the grounds of jurisdictional error and failure to accord procedural fairness, as more appropriate bases for certiorari.
The conversion application
There can be no doubt, for reasons earlier expressed, that, in hearing and determining the issues before him on this application, the function of the Warden was of a ministerial nature and did not involve the exercise of jurisdiction of the Warden's Court. It is equally beyond question that the Warden failed to discharge his statutory mandate by preparing proper reasons for transmission to the Minister. The situation falls squarely within the reasoning accepted by the Full Court of this Court in St Barbara Mines and the Full Court of the Federal Court in Dornan. To paraphrase what was said in the latter case, because the reasons do not fairly comply with that which Parliament intended in s 75(5) of the Mining Act, then that is an error on the face of the record which may properly found certiorari to quash it.
Conclusion
For the reasons above expressed, I am of the opinion that the defendants have established a right to prerogative relief in respect of both the forfeiture application and the conversion application. I would order that a writ of certiorari go in both proceedings for the purpose of quashing the orders made in the former and the recommendation proffered to the Minister in the latter. Both applications should be remitted for rehearing de novo before another Warden. For reasons earlier expressed, I would afford the defendants an opportunity of applying to vary the order nisi prior to formally pronouncing any orders.
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