Re Warden Calder; Ex parte Lee

Case [2007] WASCA 161


RE HIS HONOUR WARDEN CALDER SM & ANOR; EX PARTE LEE & ANOR [2007] WASCA 161



(2007) 34 WAR 289
SUPREME COURT OF WESTERN AUSTRALIACitation No:[2007] WASCA 161
THE COURT OF APPEAL (WA)
Case No:CIV:1691/200615 MARCH 2007
Coram:McLURE JA
PULLIN JA
BUSS JA
1/08/07
18Judgment 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
HEARD : 15 MARCH 2007 DELIVERED : 1 AUGUST 2007 FILE NO/S : CIV 1691 of 2006 MATTER : An application for writs of mandamus and certiorari against His Honour WARDEN CALDER SM exercising jurisdiction pursuant to the Mining Act 1978 in respect of plaint for forfeiture 10/45 affecting Mining Lease 52/743 held by HORSESHOE GOLD MINE PTY LTD EX PARTE

    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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Details
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.

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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