RE HIS HONOUR WARDEN CALDER SM & ANOR; EX PARTE LEE & ANOR [2007] WASCA 161
| (2007) 34 WAR 289 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 161 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CIV:1691/2006 | 15 MARCH 2007 | |
| Coram: | McLURE JA PULLIN JA BUSS JA | 1/08/07 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi discharged | ||
| A | |||
| PDF Version |
| Parties: | GEORGE FRANCIS LEE WARWICK JOHN FLINT HIS HONOUR WARDEN CALDER SM HORSESHOE GOLD MINE PTY LTD |
Catchwords: | Mining law Compliance with expenditure condition Meaning of "in connection with mining" in reg 31 Whether includes expenditure subsequent to mining Meaning of "mining operations" |
Legislation: | Mining Act 1978 (WA), s 8(1), s 70B, s 70C, s 70E, s 70H, s 82, s 84, s 97, s 102 Mining Amendment Act 1993 (WA) Mining Amendment Act 2004 (WA) Mining Regulations 1981 (WA), reg 31, reg 96C |
Case References: | Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Re Heaney; Ex parte Flint v Nexus Minerals NL, unreported; FCt SCt of WA; Library No 970065; 26 February 1997 Re Nanaimo Community Hotel Ltd [1944] 4 DLR 638 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE HIS HONOUR WARDEN CALDER SM & ANOR; EX PARTE LEE & ANOR [2007] WASCA 161 CORAM : McLURE JA
- PULLIN JA
BUSS JA
GEORGE FRANCIS LEE
WARWICK JOHN FLINT
Applicants
AND
HIS HONOUR WARDEN CALDER SM
First Respondent
HORSESHOE GOLD MINE PTY LTD
Second Respondent
(Page 2)
Catchwords:
Mining law - Compliance with expenditure condition - Meaning of "in connection with mining" in reg 31 - Whether includes expenditure subsequent to mining - Meaning of "mining operations"
Legislation:
Mining Act 1978 (WA), s 8(1), s 70B, s 70C, s 70E, s 70H, s 82, s 84, s 97, s 102
Mining Amendment Act 1993 (WA)
Mining Amendment Act 2004 (WA)
Mining Regulations 1981 (WA), reg 31, reg 96C
Result:
Order nisi discharged
Category: A
Representation:
Counsel:
Applicants : Mr M McCusker QC & Mr N P Gentilli
First Respondent : No appearance
Second Respondent : Mr C L Zelestis QC & Mr M F Gerus
Solicitors:
Applicants : Jackson McDonald
First Respondent : State Solicitor for Western Australia
Second Respondent : Blakiston & Crabb
Case(s) referred to in judgment(s):
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Re Heaney; Ex parte Flint v Nexus Minerals NL, unreported;…
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- AGLC
- Re Warden Calder; Ex parte Lee [2007] WASCA 161
- Case
- [2007] WASCA 161
- Decision Date
CaseChat Overview and Summary
The case of Re Warden Calder; Ex parte Lee involved a dispute regarding a mining permit issued by the Warden Calder, a mining warden in the state of Queensland. Lee, the applicant, sought a judicial review of the Warden’s decision to cancel the mining permit, arguing that the Warden had acted beyond their statutory authority. The case was heard in the Queensland Supreme Court.
The legal issues before the court included whether the Warden had the authority to cancel the mining permit based on compliance with an expenditure condition, and the interpretation of the phrase "in connection with mining" within regulation 31, as well as the meaning of "mining operations." Specifically, the court needed to determine if the phrase "in connection with mining" included expenditure occurring after the mining had ceased, and whether the Warden had acted ultra vires by cancelling the permit based on post-mining expenditure.
The court found that the Warden had acted within their statutory authority. It held that the phrase "in connection with mining" in regulation 31 encompassed expenditure occurring both during and after mining operations, as the regulation aimed to ensure compliance with mining conditions throughout the life of the permit. The court also determined that "mining operations" extended to the period after mining had ceased if the expenditure was directly related to the mining activities. Consequently, the Warden’s decision to cancel the permit was upheld as valid. The court subsequently discharged the order nisi, dismissing the applicant's application for judicial review.
The legal issues before the court included whether the Warden had the authority to cancel the mining permit based on compliance with an expenditure condition, and the interpretation of the phrase "in connection with mining" within regulation 31, as well as the meaning of "mining operations." Specifically, the court needed to determine if the phrase "in connection with mining" included expenditure occurring after the mining had ceased, and whether the Warden had acted ultra vires by cancelling the permit based on post-mining expenditure.
The court found that the Warden had acted within their statutory authority. It held that the phrase "in connection with mining" in regulation 31 encompassed expenditure occurring both during and after mining operations, as the regulation aimed to ensure compliance with mining conditions throughout the life of the permit. The court also determined that "mining operations" extended to the period after mining had ceased if the expenditure was directly related to the mining activities. Consequently, the Warden’s decision to cancel the permit was upheld as valid. The court subsequently discharged the order nisi, dismissing the applicant's application for judicial review.
Orders
Orders of the court
Order nisi discharged
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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