Re Warden GN Calder M; [No 2]
[2012] WASC 214
•20 JUNE 2012
RE WARDEN GN CALDER M; EX PARTE BROSNAN [No 2] [2012] WASC 214
Pending Appeal
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 214 | |
| Case No: | CIV:2566/2010 | 7 FEBRUARY 2012 & ON THE PAPERS | |
| Coram: | EM HEENAN J | 20/06/12 | |
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi discharged | ||
| B | |||
| PDF Version |
| Parties: | ALAN NEVILLE BROSNAN PHYLLIS MARIE BROSNAN MERIDIAN MINING LTD |
Catchwords: | Mining law Mining leases and exploration licence Application for forfeiture Alleged non-compliance with expenditure conditions Combined reporting status Dismissal of claims for forfeiture notwithstanding minor shortfalls in expenditure Certiorari Alleged error of law Application to amend to allege jurisdictional error Allowable expenditure Administration expenses Aerial surveys Prepayments |
Legislation: | Mining Act 1978 (WA) |
Case References: | Brosnan v Meridian Mining Ltd [2010] WAMW 6 Brosnan v Meridian Mining Ltd [2011] WASC 43 Green v Sommerville (1979) 141 CLR 594 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Re Heaney; Ex Parte Flint v Nexus Minerals NL (Unreported, WASC, Library No 970065, 26 February 1997) Re His Honour Warden Calder SM; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 Re Roberts SM; Ex Parte Burge [2003] WASCA 2 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
ALAN NEVILLE BROSNAN
PHYLLIS MARIE BROSNAN
Applicants
AND
MERIDIAN MINING LTD
Respondent
Catchwords:
Mining law - Mining leases and exploration licence - Application for forfeiture - Alleged non-compliance with expenditure conditions - Combined reporting status - Dismissal of claims for forfeiture notwithstanding minor shortfalls in expenditure - Certiorari - Alleged error of law - Application to amend to allege jurisdictional error - Allowable expenditure - Administration expenses - Aerial surveys - Prepayments
(Page 2)
Legislation:
Mining Act 1978 (WA)
Result:
Order nisi discharged
Category: B
Representation:
Counsel:
Applicants : Mr G H Lawton
Respondent : Mr C L Zelestis QC & Mr A Mizen
Solicitors:
Applicants : Lawton Lawyers
Respondent : Mizen & Mizen
Case(s) referred to in judgment(s):
Brosnan v Meridian Mining Ltd [2010] WAMW 6
Brosnan v Meridian Mining Ltd [2011] WASC 43
Green v Sommerville (1979) 141 CLR 594
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Heaney; Ex Parte Flint v Nexus Minerals NL (Unreported, WASC, Library No 970065, 26 February 1997)
Re His Honour Warden Calder SM; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289
Re Roberts SM; Ex Parte Burge [2003] WASCA 2
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
(Page 3)
1 EM HEENAN J: On 24 February 2011 Allanson J granted the applicants an order nisi for certiorari on two of three grounds sought to quash the decision of his Honour, Warden G N Calder M to dismiss their plaint for the forfeiture of a certain mining lease held by the respondent. His Honour held that the other ground (ground 1) upon which the applicants sought the order nisi was not reasonably arguable. The applicants have sought leave to add a third ground for review of the decision by amendment to the order nisi. This application is opposed by the respondent.
2 The terms of the order nisi for certiorari as granted are:
(1) The Warden sitting as Warden of the South-East Mineral Field do show cause before a single Judge of this court why a writ of certiorari should not be issued against him to remove into that court for the purpose of being quashed the decision made by Warden G M Calder [S]M on 20 May 2010 with respect to the application for forfeiture 279986 affecting Mining Lease 70/815 (the tenement) whereby the warden dismissed the application for forfeiture, on the following grounds:
GROUND ONE
The warden failed to give any or any proper consideration the terms of reg 96C(3e)(a) of the Mining Regulations when allowing the respondent's claim for expenditure in respect of a pre-payment for an aerial survey relating to the tenement.
- (i) The warden allowed the cost of an aerial survey to be claimed as expenditure in an expenditure report filed prior to the expenditure year in which the aerial survey was undertaken, contrary to the terms of Regulation 96(3e)(a);
(ii) Regulation 96C(3e)(a) provides:
For the purposes of subregulations (3b) and (3d) the cost of an aerial survey comprises -
(a) the cost of acquiring data, in the air and on the ground, during the period in which the aerial survey is conducted.
(iii) Had the learned warden given proper effect to the terms of reg 96C(3e)(a), he would not have allowed expenditure in respect of the prepayment for aerial survey to be included as claimable expenditure when calculating expenditure for the tenement. In turn, the learned Warden should have
- found that the shortfall of expenditure on the tenements was far greater than he did and was of sufficient gravity to justify forfeiture of the tenement.
- GROUND TWO
The Warden erred at law in allowing the costs of wages and superannuation for Morellini and Denn to be claimed as expenditure in its own right.
- (i) The warden allowed an amount to be claimed as being wages and superannuation for Morellini and Denn, when there was no evidence that such expenditure was in respect to mining or mining operations as defined by the Mining Act.
(ii) The Warden should have characterised the wages of Morellini and Denn as administration expenditure.
(iii) Had the learned Warden properly characterised this expenditure as administration expenses, keeping in mind that administration expenses had already been claimed to the full extent possible, the learned warden should have found that shortfall of expenditure on the tenement was far greater than he did was of sufficient gravity to justify forfeiture of the tenement.
3 The order nisi also directed service of a copy of the order, together with other papers, upon the learned Warden and upon the respondent and gave directions for its entry for hearing. His Honour also ordered that the costs of the order nisi be costs in the cause. Since then the order nisi and other papers have been served as directed. A notice has been filed by a Warden's Court officer on behalf of the learned Warden dated 8 April 2011 notifying that his Honour has been served with the order nisi of 24 February 2011 but does not intend to appear or be heard save as to any application for an order for costs against him.
4 As already indicated, shortly before the hearing on the 7th day of February 2012, the applicants sought to have the order nisi amended by adding an additional ground three as follows:
GROUND THREE
The warden erred in law when he found that aggregate expenditure in respect to M70/815, MO/816 and E70/2132 exceeded the minimum required expenditure for those tenements and hence qualified each individual tenement for an exemption from expenditure in view of the
(Page 5)
- existence of combined reporting status in that he failed to take into account the terms of s 102(2)(h)(ii) Mining Act which provides that only exploration expenditure can be aggregated for this purpose.
Particulars
(i) The warden considered the total expenditure as found by him on all three tenements for the purpose of determining the expenditure for combined reporting purposes.
(ii) Section 102(2)(h)(ii) reads:
(ii) 'The aggregate exploration expenditure for the combined reporting tenements would have been such as to satisfy the expenditure requirements for the mining tenement concerned had that aggregate exploration expenditure been apportioned between the combined reporting tenements.'
(iii) Had the warden given proper effect to the terms of s 102(2)(h) he would have not taken into account expenditure that was not in the nature of exploration expenditure and would accordingly have found a substantial shortfall in expenditure insofar as combined reporting was concerned.
5 Furthermore, at the end of the hearing on the return of this order nisi on 7 February 2012 a question arose as to whether any of the alleged errors of law in the existing grounds contained in the order nisi or in the proposed amended third ground amounted to a jurisdictional error by the learned Warden so that, even if such alleged error was not apparent on the face of the record, it might nevertheless constitute a ground for granting certiorari to quash the learned Warden's decision. Against opposition by counsel for the respondent I, therefore, allowed the applicants to apply for leave to vary the grounds of the existing order nisi to invoke a ground of jurisdictional error but only in relation to one or more of the grounds already advanced. Directions were given that any such application for leave to amend should be filed and served together with written submissions in accordance with the timetable then prescribed. I also directed that the court would decide the matter of whether or not leave should be granted to add an additional ground alleging jurisdictional error upon the papers unless either parties pressed for a further oral hearing again within a specified period. The applicants did, within the timetable, apply for leave to add an additional ground alleging jurisdictional error and filed written submissions in support of that application and the proposed ground. The respondent has filed and served written submissions in opposition to the application for leave to amend to introduce such a ground and in relation to the ground if leave were to be
(Page 6)
- granted. None of the parties sought a further oral hearing on that application or in relation to the new proposed ground. It remains for me to consider whether or not leave to add this additional ground should be granted and, if so, to determine that ground.
6 At this stage, I shall simply record the details of the proposed additional ground. They are as follows:
GROUND FOUR
2.4 In purporting (in an administrative capacity) to dismiss applications 279986, 282102, 282103, 282104 and 281397 the Warden acted in excess of his jurisdiction, alternatively wrongly failed to exercise jurisdiction under s 98(4)(a) of the Mining Act to recommend forfeiture, in that in calculating the allowable expenditure he identified a wrong issue, asked himself the wrong question, took into account irrelevant material and/or made an error of law affecting the power he exercised.
Particulars
- (i) He included in the calculation of expenditure a pre-payment for aerial surveys, which reg 96C(3)(e) of the Mining Regulations prohibited him from taking into account, and thereby exceeded or failed to exercise his jurisdiction;
(ii) He included in the calculation of expenditure the wages and superannuation of Morellini and Denn, which reg 96C(3) of the Mining Regulations prohibited him from taking into account in the circumstances. Alternatively, which had not nexus to mining and/or mining operations on each relevant tenement. He thereby exceeded or failed to exercise his jurisdiction;
(iii) He applied the combined reporting exemption in s 102(2)(f) of the Mining Act to expenditure not limited to exploration expenditure, and thereby exceeded or failed to exercise his jurisdiction.
7 No better account of the background leading to this application could be given than that set out by Allanson J when granting the order nisi in Brosnan v Meridian Mining Ltd [2011] WASC 43. What follows is largely taken from his Honour's account of the relevant events and, in many instances, reproduces his Honour findings verbatim.
(Page 7)
8 The events concern the activities of Meridian Mining Ltd (Meridian) for the expenditure year ending in August 2007 and involve a determination by the learned Warden of whether or not Meridian met its required expenditure obligations on certain leases and an exploration licence during that year and, if not, whether all four of those tenements should be forfeited. At the material time Meridian held three mining leases (M70/815, M70/816 and M15/621) and one exploration licence (E70/2132). Two of those mining leases (M70/815 and M70/816) are contiguous and are entirely contained within the boundaries of the exploration licence. These three are sometimes referred to as the 'Tampia' tenements. The third mining lease (M15/621) is geographically separate.
9 In December 2007 the two applicants applied under s 98 of the Mining Act 1978 (WA) for forfeiture of one only of the tenements (mining lease M70/816) on the ground that Meridian had failed to comply with expenditure conditions for the lease for the expenditure year ending August 2007. Another applicant Mr Bronte Stewart, not a party to these proceedings, applied for forfeiture of all four of the tenements held by Meridian, again on the basis of alleged non-compliance with the expenditure conditions relating to those four tenements. The alleged non-compliance for two of those tenements was for the year ended 12 August 2007 and for the third and fourth tenements for the years ending 22 August 2007 and 19 October 2007. Those latter two tenements were, respectively, E70/2132 and M15/621.
10 Although they were separate applications by different parties, one by the applicants in respect of M70/816 and the other by Mr Stewart in respect of all four tenements, both applications were heard together before the learned Warden. There was a joint hearing at which all the evidence presented was taken as relevant and applicable to all applications and in respect of which one report comprising the learned Warden's reasons for decision was prepared and submitted to the Minister.
11 The findings of the learned Warden in relation to expenditure on the several tenements for the relevant periods (no distinction turning on the different termination dates for the expenditure year for two of the tenements) was as follows:
Mining lease M70/815
Minimum required expenditure $18,241
Total actual expenditure $16,081
(Page 8)
- Shortfall$ 2,341
Mining lease M70/816
Mining required expenditure $46,016
Total actual expenditure $29,414
Shortfall$16,602
Exploration licence E70/2132
Mining required expenditure $24,000
Total actual expenditure $78,681
No shortfall - excess expenditure $54,681
Mining lease M15/621
Mining required expenditure $66,667
Total actual expenditure $73,595
No shortfall - excess expenditure $ 6,928
12 The learned Warden then concluded:
[79] The shortfall in allowable expenditure for M70/815 for the expenditure year ended August 2007 is not substantial and, of itself, does not justify forfeiture. Given that the three tenements M70/815, M70/816 and E70/2132 were attributed with combined reporting status from 12 April 2007 and given that the total allowable expenditure in respect of those three tenements, namely, $124,176, exceeds the aggregate of the required minimum expenditure on those three tenements, namely $88,257 by approximately $36,000 and given that the necessary geological and explorational connection between those three tenements, the failure to comply with the expenditure condition in respect of M70/815 by a relatively small amount and despite the relatively large non-compliance in respect of M70/816, I am of the opinion that the shortfall in the expenditure of those two tenements is not sufficient in all the circumstances to justify forfeiture.
[80] That conclusion is to be taken also in the context that there is a potential for results obtained in respect of the aerial survey over E70/2132 to be of considerable value in the future exploration and possible developed of M70/815 and M70/816 which are contiguous with each other and which are located in the centre of E70/2132. In this case that is a significant factor in my concluding that forfeiture is not justified. Is respect of [M15/621] allowable established
- expenditure of $73,595 exceeds the minimum prescribed expenditure of $66,667.
13 In the result the Warden therefore dismissed the claim for forfeiture of E70/2132 by Mr Stewart and the claim for forfeiture of M15/621 being the two tenements in respect of which there was an excess of expenditure found. No express provision is contained in his Honour's reasons for the determination of the claims for the forfeiture of M70/815 and M70/816, the two tenements in respect of which relatively minor shortfalls were found to have occurred but his Honour's report and recommendation to the Minister was that the Warden was of the opinion that the shortfall in the expenditure of those two tenements was not sufficient in all the circumstances to justify forfeiture although the summary of the result contained in his Honour's reasons includes a clause 'Forfeiture applications all dismissed' (see page 2). The parties accepted that all applications for forfeiture were formally dismissed by the Warden. A Warden hearing an application for forfeiture of a mining lease or exploration licence under s 98(1) of the Mining Act may not order forfeiture but may dismiss an application for forfeiture. As Allanson J explained, if the Warden finds that the lessee of the mining lease or licensee of an exploration licence has failed to comply with expenditure requirements, 'the Warden may recommend the forfeiture of such licence or lease, or impose a penalty not exceeding $10,000 as an alternative to the forfeiture or dismiss the application': s 98(4A). The Warden is not to recommend forfeiture unless the Warden is satisfied that the non-compliance is, in the circumstances of this case, of sufficient gravity to justify the forfeiture: s 98(5).
14 By s 98(6):
As soon as practicable after the hearing of the application the warden shall forward to the Minister the notes of evidence, with a report and the warden's recommendation, if any, on the application and the Minister may, before acting on the recommendation, require the warden to take such further evidence or rehear the application as the Minister directs.
15 Under s 99(1):
The Minister, after receiving the recommendation of the warden as provided in section 98, may, as the Minister thinks fit -
(a) declare the exploration licence or the lease to which the recommendation relates, forfeited;
(b) impose a penalty not exceeding $10 000 as an alternative to forfeiture;
(Page 10)
- (c) award the whole amount of the penalty or any part thereof to the applicant who applied for forfeiture; or
(d) determine not to forfeit such licence or lease or impose any penalty.
16 The documents in evidence before the learned Warden and before this court established that mining lease M70/816 has been marked out in July 1993 and granted for a term of 21 years and that the area current at the material date was 501.90 hectares. The evidence also shows that mining lease M70/815 was originally marked out in July 1993 and granted for a term of 21 years and that on the material date the area of the lease was 198.64 hectares.
17 The learned Warden found (Brosnan v Meridian Mining Ltd [2010] WAMW 6 [2]) that:
[2] Mining leases 70/815 and 816 are contiguous with each other. They are entirely contained within the boundaries of E70/2132. Together they occupy approximately 11.2% of the total area of E70/2132. The relevance of that is in regard to the issue of apportionment of claimed expenditure by Meridian for the cost of an aerial survey which it has claimed as expenditure during the relevant year/
[2] Mining lease 15/621 is not in any way geographically connected to the other three tenements.
18 Accordingly, from this finding, it can be inferred that the total area of exploration licence E70/2132, including those two mining leases, is approximately 6,250 hectares, but it was referred to [48] as being about 2,400 hectares. Nothing now turns on its true size.
19 This present application, as already explained, is brought by the present applicants only in respect of the learned Warden's findings and recommendations in respect of mining lease M70/816 which was dismissed by the learned Warden.
20 This singular concentration by the applicants upon the fate of their application for forfeiture of M70/816 (the larger of the two adjacent leases) could pose a number of procedural problems not only for the applicants but generally. In the first place not all of the evidence adduced before the learned Warden and relied upon by him for his decision has been put before this court.
21 Care has been taken by the applicants in framing the grounds of review including the amended grounds for which leave is being sought, to
(Page 11)
- concentrate on discrete topics which can be examined and dissected in a manner which may allow the underlying legal questions said to constitute the alleged errors of law to be determined. For example, in relation to the cost of the aerial survey, the question which is raised is whether or not the costs of the aerial survey which had been prepaid in one year but where the survey has not been actual flown until the following year can be included in allowable expenditure for the first year. If not, so the applicants submit, the allowable expenditure for M70/816 would result in an even greater shortfall then was found ($5,105 less) for this reason alone.
22 Similarly, the contention that the expenditure allocated for wages and superannuation for Messrs Morellini and Denn was included in error (for two reasons - want of evidence and because it is said to amount to excess additional administration expenses which could not be claimed) would result, for this reason alone, in a shortfall of expenditure for M70/816 being $7,206 more than the shortfall found.
23 Further, the contention that the learned Warden was in error in treating the three tenements M70/815, M70/816 and E70/2132 as having combined reporting status and also having a potential for the results obtained in respect of the aerial survey over E70/2132 to be of considerable value in the future exploration and possible development of the two contiguous leases leading to the learned Warden viewing the aggregate effect of expenditure on those three tenements as disinclining him to recommend forfeiture are also said to raise a discrete question of law.
24 While it is possible for those three issues to be considered and determined separately, as I shall do in the analysis which follows, a conclusion that one or more of those alleged errors has been established would not lead directly to a conclusion that the learned Warden's decision not to recommend forfeiture was wrong in law and should be quashed. That is because that ultimate conclusion is a result of the application of s 98(5) which commands that the Warden shall not recommend forfeiture unless satisfied that the non-compliance is, in the circumstances of that case, of sufficient gravity to justify the forfeiture. The circumstances of this case obviously involved the Warden considering the effect of all the expenditure on all three of those tenements which he was satisfied exceeded the necessary/required expenditure by some $36,000 so leaving him unsatisfied that the non-compliance in respect of two of them was of sufficient gravity to justify forfeiture. That is obviously a broad overall view taken by the learned Warden.
(Page 12)
25 Demonstration in the present case that permissible expenditure on M70/816 was either a further $5,105 less or even an additional $7,306 less then the shortfall of $16,602 found by his Honour (against a minimum requirement of $46,016) would not lead directly to a conclusion that the non-compliance in respect of that tenement was of sufficient gravity to justify forfeiture. The applicants are attempting to show that similar errors were made in calculating the expenditures allowed for the other mining lease and for the exploration licence so that if allowances for those impermissible expenditures were eliminated from the learned magistrate's findings in respect of M70/815 and E70/2132 the shortfall in respect of each of those two mining leases would be so great that no other reasonable decision could have been reached by the learned Warden but to recommend forfeiture of all three tenements.
26 The difficulty with this approach is that the present applicants do not directly challenge the findings and recommendations of the Warden in respect of M70/815 or E70/2132. Indeed they have no direct interest in doing so because their original application for forfeiture was, as already noted, only in respect of M70/816. Nevertheless, the propositions and submissions advanced by the applicants involved a collateral attack upon the learned Warden's findings in respect of M70/815 and E70/2132 as a basis for the submission that the learned Warden's decision and recommendations were so affected by error that the conclusion and recommendations made in respect of M70/816 cannot be allowed to stand.
27 One of the problems which this presents to the court, which was little addressed at the hearing, is whether such a conclusion, if made out, should lead to the quashing of the whole of the Warden's decision and recommendation, including his Honour's findings and recommendations in relation to the three tenements whose fate is not now subject to challenge (M70/815, E70/2132 and M15/621). How could there be a consequence that the decision would be quashed only in respect M70/816? It would be necessary to give further consideration to that possibility later if error of law were demonstrated.
28 Assuming, however, if only for the moment that quashing the decision only in respect of the finding and recommendation in respect of M70/816 is possible, that would still leave significant discretionary factors to be addressed which, without necessarily so limiting them, would include a consideration whether, at any rehearing of the forfeiture application in respect of M70/816 which would follow from an order to quash the learned Warden's decision, it would be possible in any sensible or realistic way for the Warden to consider the matter afresh without
(Page 13)
- canvassing the extent of associated expenditure outlaid by the respondent on the contiguous tenements M70/815 and E70/2132 when the findings and recommendations in respect of those already reached by this decision remain undisturbed. Again this is not a matter which was addressed directly in any way at the hearing but I cannot see how any decision such as is required of the Warden by s 98(5) of the Mining Act could be reached without taking into account the expenditure which had been accepted as proper, for the contiguous tenements - the findings in respect of which would not be disturbed by a quashing only of the Warden's decision in respect of M70/816.
29 The submissions for the applicants include propositions that if an ultimate discretionary decision made under s 98(5) was to any material degree the product of erroneous findings of law then it cannot be permitted to stand and should be quashed.
Legislative scheme
30 Allanson J described the legislative scheme applicable as follows:
[12] The Mining Act in s 82 provides, relevantly:
'(1) Every mining lease shall contain and be subject to the prescribed covenants by the lessee and in particular shall be deemed to be granted subject to the conditions that the lessee shall -
…
(c) comply with the prescribed expenditure conditions applicable to such land unless partial or total exemption therefrom is granted in such manner as is prescribed.'
'expenditure conditions in relation to a mining tenement means the prescribed conditions applicable to a mining tenement that require the expenditure of money on or in connection with the mining tenement or the mining operations carried out thereon or proposed to be so carried out.'
[14] Mining operations is also defined. The definition refers to various operations and processes for the purpose of obtaining minerals, and includes 'the doing of all lawful acts incident or conducive to any such operation or purposes'.
(Page 14)
- [15] Regulation 31(1) of the Mining Regulations 1981 (WA) prescribes the following expenditure conditions:
'The holder of a mining lease shall expend or cause to be expended in mining on or in connection with mining on the lease not less than $100 for each hectare or part thereof of the area of the lease with a minimum of $10 000 during each year of the term of the lease; but if the holder is directly engaged part-time or full-time in mining on the lease itself then an amount equivalent to the remuneration that the holder would be entitled to if engaged, under a contractual arrangement, in similar mining activity elsewhere in the district shall be deemed to have been expended.'
[16] Regulation 31(1b) further provides that the specific provisions in reg 96C, relating to allowable expenditure and non-allowable expenditure for the purposes of calculating expenditure under a lease, apply when calculating expenditure under the regulations.
31 In the present case the applicants rely on reg 96C for their submissions that the allowances recognised by the learned Warden in respect of aerial survey and the wages and superannuation claimed and allowed for Messrs Morellini and Denn, involved errors of law. So far as is presently material, reg 96C provides:
…
(3b) The cost of an aerial survey may be used in the calculation of expenditure expended on, or in connection with, mining on any mining tenement that is located wholly or partly within the boundaries of the survey when those boundaries are projected onto the surface of the Earth.
…
(3d) Where the cost of an aerial survey is used in the calculation of expenditure for more than one mining tenement, the cost is to be
apportioned between the mining tenements in such a way that the total expenditure claimed does not exceed the cost.
(3e) For the purposes of sub-regulations (3b) and (3d) the cost of an aerial survey comprises -
(a) the cost of acquiring data, in the air and on the ground, during the period in which the aerial survey is conducted; and
(b) the cost of processing that data to produce fully corrected, point-located digital data stored on an appropriate computer-compatible medium.
(Page 15)
32 Furthermore, reg 96C(3) provides:
Administration and land access costs relating to land which is the subject of a mining tenement may be used in the calculation of expenditure expended on, or in connection with, mining on the mining tenement, but only up to 20% of the minimum commitment, or 20% of the total expenditure on the mining tenement, whichever is the greater amount.
33 In relation to M70/816 the respondent claimed for 'overheads' an amount of $9,203 (20% of the required minimum expenditure of $46,016) as 'administration'. That was the maximum allowable for expenditure under that heading. This claim did not include any component for wages and superannuation for Messrs Morellini and Denn so if the amounts claimed for their wages and superannuation should in law have been classified as administration expenditure, they were not claimable by the respondent because the maximum allowable under that heading had already been claimed and allowed.
34 At [47] of his reasons, Allanson J identified the issue raised by this proposed ground. His Honour said the term 'administration expenditure' is not defined, although the prescribed form for returning expenditure on a mining tenement refers to 'administration and overheads' as 'all non-field activities such as head office costs, accounting, mining tenement management, administration, research, literary studies, training, etc'. The applicants contend that properly construed administration costs include wages and superannuation of the two directors. This is particularly so for Mr Morellini who did not have expertise relevant to the field activities. His Honour considered that this contention was reasonably arguable and gave leave in respect of that ground.
The grounds of appeal
35 The amended application for an order to review put by the applicants to Allanson J contained three proposed grounds of appeal. Proposed ground 1 contended that the learned Warden erred in law in dismissing the applications for forfeiture in respect to the tenement by including a prepayment as claimable expenditure. The applicants sought to assert that prepayment for any purpose cannot come within reg 31(1) which requires the expenditure to be for 'expenses in mining on or in connection with the mining lease' so that, according to the submission, a prepayment could not be in mining or in connection with mining. His Honour rejected that submission and refused leave to advance that proposed ground of review on the basis that the construction of reg 31 put forward by the applicants was inconsistent with authority: Re His Honour Warden Calder SM; Ex
(Page 16)
- parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [36] - [46]; see also Re Heaney; Ex Parte Flint v Nexus Minerals NL (Unreported, WASC, Library No 970065, 26 February 1997). His Honour referred to a passage in the judgment of McLure JA in Ex parte Lee [45] where her Honour concluded that it was apparent from the authorities to which he had earlier referred that 'the expression "in connection with" can readily extend to expenditure on matters subsequent to and consequential upon the specified thing (in this case, mining operations)'.
36 Nevertheless Allanson J granted leave to include in the order nisi the second proposed ground (now ground 1) which, stripped of the particulars, reads:
The Warden failed to give any or any proper consideration to the terms of regulation 96C(3e) of the Mining Regulations when allowing the respondent's claim for expenditure in respect of a pre-payment for an aerial survey relating to the tenement.
37 His Honour recognised that by this ground the applicants claimed that the Warden failed properly to construe and apply reg 96C(3e) as that regulation, so it was submitted, does not permit a lessee to claim prepayment for the cost of an aerial survey as allowable expenditure when the survey is not conducted during the expenditure year in which the expenditure is claimed.
38 As Allanson J recounted, the learned Warden found that Meridian entered into a contract with Fugro Airborne Surveys Pty Ltd (Fugro) during the relevant expenditure year and paid pursuant to that contract, an amount of $64,559 inclusive of GST. The contract was for Fugro to undertake aerial surveys of the three Tampia tenements. Payment of the contract fee was made in full during the 2007 expenditure year, but the work was not done until the following year.
39 Before Allanson J and again at this hearing the applicants have submitted that upon its proper construction reg 96C(3e) permits only expenses in relation to an aerial survey in the year the survey was conducted, that is, the aerial survey must be flown during the relevant expenditure year. The applicants submit that the words in reg 96C(3e)(a) 'during the period in which the aerial survey is conducted' are words of limitation. According to this submission, where prepayment is made for an aerial survey that prepayment is not part of the cost of acquiring data during the period in which the aerial survey was conducted. His Honour considered that that question was seriously arguable and required resolution after a full hearing and hence granted leave to include that
(Page 17)
- ground. It follows, from the established authority, that if there is a limitation in relation to claims for expenditure for an aerial survey the source of the limitation must be found in sub-reg 96C(3e)(a) and not elsewhere.
40 Despite reaching this conclusion, Allanson J [54] observed that reg 96C(3b) is not required to make the cost of an aerial survey allowable expenditure. His Honour said:
A survey would be allowable as an expense in connection with mining without reference to that regulation. Mining includes 'mining operations': s 8. Mining operations are:
'[A]ny mode or method of working whereby the earth or any rock structure stone fluid or mineral bearing substance may be disturbed removed washed sifted crushed leached roasted distilled evaporated smelted or refined or dealt with for the purpose of obtaining any mineral therefrom whether it has been previously disturbed or not and includes … the doing of all lawful acts incident or conducive to any such operation or purposes.'
42 With respect I agree with the observations of Allanson J about the scope of mining operations and his Honour's conclusion that the deductibility of an aerial survey expenditure does not depend on sub-reg 96C(3b) but rather comes within the general concept of expenditure of mining operations permitted under reg 31.
43 The question raised by ground 1 of the present order to review is whether or not there is a temporal limitation upon such a claim imposed
(Page 18)
- by the application of sub-reg 96C(3e)(a) and it is to that specific issue that I now turn.
44 The parties did not cite the authority directly on the point as to the meaning of any limitations contained in reg 96C(3d) or (3e). In my own researches I have not been able to discover any reported case bearing on the point advanced by the applicants, namely whether sub-reg 96C(3e)(a) requires that to constitute eligible expenditure the cost of an aerial survey must be incurred or met during the expenditure period in which the aerial survey is actually conducted. However, in Ex parte Lee the Court of Appeal took a broad view of whether or not expenditure subsequent to mining constituted eligible expenditure within the meaning of mining operations or in connection with the mining and held that in the particular circumstances of that case it did. Several passages in the reasons of McLure JA confirm this. At [30] her Honour quoted, with evident approval and subsequent affirmation, a passage in the reasons for decision of Warden Calder which ran as follows:
'Regulation 31 does not require that there be a present and on-going mining operation for there to be allowable expenditure. The legislation creates obligations on tenement holders that continue beyond the cessation of extractive and processing operations on tenements and include, in particular, environmental obligations. Mr Nutter said that it was inappropriate to simply close down the mine in 1994 and immediately proceed to comply with environmental obligations to the extent that there was completed closure of the mine. That was so because of the presence on the tenement of the remaining resource that it was then thought may later be assessed as being mineable. In my opinion that was a reasonable position to adopt at the time ...'.
45 And in [36] McLure JA observed:
The applicants did not contend that reg 31 required that there be actual mining, or expenditure on mining, on the tenement during the expenditure year. Such a proposition is inconsistent with the language of reg 31 and with unchallenged authority in this jurisdiction: Re Heaney; Ex parte Flint v Nexus Minerals NL, unreported; FCt SCt of WA; Library No 970065; 26 February 1997. Kennedy J said in that case (at 4):
'It is important for the present purposes to note that the expenditure does not have to be on mining, as such, to satisfy the terms of [reg 31]. It may be "in connection with" mining. The words "in connection with" are words of wide import and, as with the words "connected with", and, subject to the context in which the words are used, are capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote -
- see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR, at 10-11 ...' (further authorities omitted).
46 At [38] McLure JA went on to say that, as stated by Kennedy J in Flint, what is a sufficient connection depends on the context in which the words are used and, her Honour added, the scope and purpose of the Act. At [46] McLure JA accepted the correctness of a submission on behalf of the second respondent in that case, namely that it was not necessary that there be current active mining or an intention to carry out mining in the relevant expenditure year for there to be claimable expenditure under reg 31.
47 Immediately I acknowledge that none of the cases or the judicial observations which I have cited deals directly with the point raised by the applicants in this case concerning the question of whether the expenditure for this aerial survey was allowable in the year claimed. Nevertheless, the principles underlying those decisions and the dicta cited show that wide effect is given to the concept of allowable expenditure under reg 31 generally. Accordingly, that informs the scope and purpose of this Act as a whole and so constitutes a guide to the proper interpretation of sub-reg 96C(3e)(a).
48 The construction of that particular sub-regulation advanced by the applicants would involve a temporal limitation on the allowability of expenditure for aerial surveys not evident in reg 31 itself or in the authorities which have considered reg 31. It is of course possible that that may be the intention of the sub-regulation intended and if it is effect must, of course, be given to it. However, the introduction of such a temporal limitation in a subordinate regulation, inconsistent with the general provision, should not be readily regarded as the intention of that regulation.
49 The primary entitlement to allowable expenditure is, of course, reg 31 which, by its terms, provides that the specific provisions of reg 96C apply when calculating expenditure. By reg 96C(3b) the cost of an aerial survey may be used in the calculation of expenditure expended on or in connection with mining on any mining tenement located wholly or partly within the boundaries of the survey. Furthermore, it is evident from the terms of sub-reg 96C(3e) that the cost of an aerial survey does not only consist of the cost of acquiring data in the air during the period in which the aerial survey is conducted. The sub-regulation expressly extends to the cost of acquiring data in the air and on the ground during the period in which the survey is conducted and further the costs of processing that data
(Page 20)
- into some readily useable form or medium. This plainly contemplates that the cost of an aerial survey includes, to a degree, preparation for the survey and subsequent processing of data from the area in the course of the survey.
50 It is, of course, necessary to give meaning and effect to all words in the regulation which is the subject of attention and not to assume that some part of the provision is superfluous or of no effect: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 382 [71]. It follows that some significance and meaning must be given to the clause 'during the period in which the aerial survey is conducted' where that appears in sub-reg 96C(3e). In my view, the proper interpretation of this provision in the context of this Act, is that allowable expenditure should relate to the cost of acquiring data which was obtained during the period in which the survey was conducted rather than the cost of acquiring data obtained from some other source or at some other time. In other words, I consider that the clause 'during the period in which the aerial survey is conducted' qualifies the nature and identity of the data acquired during the time in which the actual aerial survey was conducted. This interpretation has a utilitarian purpose in excluding from allowable expenditure under the hearing 'Aerial Survey Costs' charges for data obtained from some other or different aerial survey or from some other source. That is not to say that the cost of acquiring such data may not be claimable under reg 31 itself under general principles without coming within the express ambit of reg 96C(3b).
51 Although his Honour did not examine the eligibility of the expenditure for the aerial survey claimed with this distinction expressly stated, it is evident that the cost of the aerial survey which was being claimed was for the cost of acquiring data in the air and on the ground during the period in which the aerial survey was to be conducted, notwithstanding that it was to be conducted in a later year. In my respectful opinion, his Honour was entirely justified in treating the claim for expenditure in that fashion. It follows that there is no error of law demonstrated with the approach taken by the learned Warden and accordingly ground 1 of the order nisi must be rejected.
Wages and superannuation claimed for directors
52 As already noted, the Warden allowed wages and superannuation paid to Messrs Denn and Morellini by Meridian as allowable expenditure and apportioned this over the several tenements. The amounts so apportioned and allowed in respect of mining lease M70/816 was $1,930
(Page 21)
- for Denn and $5,276 for Morellini, a total of $7,306. The same allowance and apportionment in respect of those two officers was made in respect of E70/2132 and for M70/815 and a somewhat greater allowance for M15/621. The findings of the learned Warden in respect of these matters are contained in [73] - [76] of his Honour's reasons, which are as follows:
73 In relation to wages and superannuation, I proceed on the basis that Mr Denn was paid at the rate of $170,000 per annum for three months from March to June inclusive of 2007. The amount paid to him was thus within the subject expenditure year of all four tenements. Three months at a rate of $170,000 per annum amounts to $42,500. I am satisfied, upon the basis of the evidence of Mr Denn, that most of his time during that three-month period was occupied in work connected with the proposed public float of Meridian. Had he not been engaged in that work, and given that the accepted allocation of work as between the subject groups of tenements, namely, Tampia, Geko and and Mt Dimer, was as to 50 per cent to Tampia, it could be said that his time spent in relation to work on Tampia tenements would otherwise amount to $21,250. Because of his primary work focus during the three-month period being upon the proposed public float, although I have not been given any specific figures, I am not prepared to accept that he spent any more than 25 per cent of his time on or in connection with mining on the tenements. 25 per cent of $21,250 is $5312 for the three Tampia tenements; allocation between each of those three tenements should therefore be $1771.
74 In his evidence Mr Denn said that he was paid a salary at a rate of $170,000 per annum together with superannuation. No details of the amount of superannuation were presented in evidence. In Meridian's payroll summary, produced in evidence of Meridian's accountant, it is noted that Mr Morellini was paid superannuation at the rate of 9 per cent. I proceed on the basis that it is most likely that Mr Denn's superannuation would also have been paid at 9 per cent of his salary. That amounts to $159 for each of the Tampia tenements. Similarly, in relation to the work done by Mr Denn that can properly be attributed to Geko and thus to M45/621, using the same formula as for the Tampia tenements, is $3188 for wages and $287 for superannuation, totalling $3474.
75 Concerning Mr Morellini, there was no evidence as to his involvement in the proposed float of Meridian. I infer from the evidence, however, that Mr Morellini was very active in all aspects of the company's management and other activities and that, accordingly, a considerable amount of time in respect of which Mr Morellini was paid wages was devoted to the proposed float. Mr Morellini was paid wages according to the payroll summary that I have previously referred to. That shows that from the period 19 March 2007 to August 2007, a period that is within the subject
- expenditure year of all four tenements, he was paid wages of $43,231 and superannuation of $4251. For the two months of September and October, which are within the subject expenditure year for M45/621, he was paid additional wages of $10,000 and superannuation of $1260. I consider that it is appropriate to deduct, one third of his salary and superannuation payments on the basis that at least that portion of his work was directed towards the proposed public float.
- 76 For the period from March to August 2007, within the expenditure year for each of the three Tampia tenements, Mr Morellini was paid wages of $43,231 and superannuation of $4251. Of that amount, a 50 per cent allocation to Tampia results in an allocation, before any deduction for work done by Mr Morellini in connection with the float and in connection with other tenements held or applied for by Meridian, $23,741 for wages and superannuation. Two thirds of that $23,741, namely $14,827 can be attributed to expenditure on the three Tampia tenements, namely, $5276 each [means that each]
53 The second ground of the order nisi contends that the Warden erred in law in allowing the costs of wages and superannuation for Morellini and Denn to be claimed as expenditure in its own right. The particulars in support of that ground contend that there was no evidence that such expenditure was in respect to mining or mining operations; that the Warden should have characterised the wages of Morellini and Denn as administrative expenditure (the maximum amount of which had already been claimed and allowed) and that if this had been done there would have been a greater shortfall of expenditure in relation to mining lease M70/816 and that it would have been of a magnitude sufficient to require a recommendation for forfeiture.
54 Evidence at the original hearing before the Warden on these topics was given by Mr Denn and by the respondent's chartered accountant, Mr R W Warren. The applicants submit that the evidence established that Mr Denn only undertook geological work for Meridian in early 2006 and was not paid in any event. They also submit that Mr Warren said in evidence that Mr Morellini was paid on 14 January 2008 for work done between May to December 2007 and that, accordingly, there was no actual expenditure on this item for him during the expenditure year. They also contend that because Mr Morellini was not a geologist, any payment to him could not have been in respect of mining or mining operations and, at best, could only be an administrative expense which for reasons already given could not be claimed. They also contend that expenditure for Mr Denn was not incurred on mining or mining operations and that, consequently, none of this expenditure should have been allowed.
(Page 23)
55 However, from the passages in the learned Warden's reasons set out above, particularly [73] and [75], Mr Denn was paid at the rate of $170,000 per annum for three months and that the amount paid to him was within the subject expenditure year of all four tenements. At [75] his Honour found that the money paid to Mr Morellini of $43,231 for wages and $4,251 for superannuation was for the period 19 March 2007 to August 2007, within the subject expenditure year of all four tenements. His Honour, accordingly, made positive findings of fact that those moneys were paid in respect of the relevant expenditure year and, from the basis of the payroll records available and the evidence of both witnesses, there was evidence to support that finding. For present purposes, it does not matter that there may have been other contradictory or inconsistent evidence because, in the light of the evidence to which I have referred, the findings by the learned Warden as to the amounts paid for wages and superannuation to both officers and the periods for which they were payable are plainly findings of fact and, even if erroneous, would not constitute errors of law.
56 As to the characterisation of whether the services for which Mr Denn and Mr Morellini were paid were in respect of the mining operations or in connection with mining operations or were, instead, as the applicants contend, administrative expenses, it is evident that the learned Warden was alive to the distinction between the two forms of expenditure. In the first place, his Honour specifically distinguished between time spent by Messrs Denn and Morellini on the proposed float of Meridian which the Warden regarded as ineligible for inclusion among the required expenditure. Also in [72] his Honour excluded from eligible expenditure amounts paid to Stoneflower, which the Warden treated as expenditure for promotional purposes. Furthermore, his Honour said at [73]:
I am not prepared to accept that he spent any more than 25 per cent of his time on or in connection with mining on the tenements.
57 This can only be regarded as a finding that 25% of the paid time which was employed related to expenditure on or in connection with the mining of the tenements - a finding repeated at [76].
58 The fact that Mr Morellini was not a qualified geologist does not tell against those conclusions. There can obviously be work done in or in connection with mining operations by persons other than geologists. For reasons already given, it is quite obvious that the learned Warden was aware of the need to distinguish between wages and other remuneration paid in respect of mining operations or in connection with them and for
(Page 24)
- other purposes such as administration expenses. That awareness is demonstrated by his Honour's dissection of the total expenditure to these persons in order to exclude payment for work done on the Meridian float and on other tenements. Viewed in the context of the learned Warden's analysis and his particular findings, the only conclusion can be that the amounts allowed for wages and superannuation for each of Mr Morellini and Mr Denn were accepted by his Honour as payments actually made for work done by those officers during the expenditure year on mining or in connection with mining operations on mining lease M70/816. Nevertheless, the applicants still maintain that there was no evidence that, at least in Mr Morellini's case, any part of his wages or superannuation was expended in connection with mining or mining operations.
59 By contrast, the respondent submits that with respect to Mr Denn, the leaned Warden referred to evidence that he was an experienced geologist and the respondent's managing director for part of the relevant time, that he was involved in the respondent entering into a contract with Fugro Airborne Surveys for the aerial survey of the mining lease and that he reviewed geological data - see [14], [19], [20] and [73] of the learned Warden's reasons, all of which support the findings. Similarly, with respect to the payments to Mr Morellini, the respondents submit that the learned Warden noted that he was a director of Meridian [20] and stated that his assessment of the nature of Mr Morellini's role was based on the evidence [75] 'I infer from the evidence'. Such an inference of Mr Morellini's active interest in the affairs of Meridian was open to the Warden having regard to the evidence as a whole, in particular the evidence of Mr Warren and the copies of invoices and other documents concerning Mr Morellini's role in the operations of the company. Mr Morellini was referred to as a point of contact for Meridian in the Fugro Airborne Surveys contract - see AB212. The fact that Mr Morellini did not give evidence before the Warden does not prevent the Warden from reaching these conclusions based on evidence from other witnesses and from documentary exhibits.
60 Further, with respect to the sufficiency of the evidence to support the findings of the learned Warden made in respect of Mr Morellini, counsel for the respondent points out that not all of the transcript of the hearing before the Warden has been put in evidence at this hearing and that, consequently, it is not possible to say that there was no evidence capable of supporting the Warden's findings in this respect from the evidence as a whole. That submission is made without prejudice to the respondent's earlier submission that the transcript of evidence does not form part of the relevant record for the purposes of review on certiorari.
(Page 25)
61 For these reasons, I conclude that there has been no error of law demonstrated in relation to the learned Warden's findings with respect to the allowance and allocation of wages and superannuation paid during the relevant periods to Messrs Denn and Morellini for mining lease M70/816. While it would be an error of law to make such findings or draw inferences material to the making of those findings, where there was no evidence to support the findings or the inference, that has not been demonstrated in this case and on the state of the materials put before the court on the present application it is not possible to make a finding that there was no such evidence.
What constitutes the record?
62 In the present case the learned Warden's reasons formed part of his report and recommendation to the Minister which he was required to make under s 98(6) of the Act and by s 99 the Minister is obviously expected to have regard to that recommendation and report in deciding what action, if any, he thinks fit to take when making an ultimate decision if he has power to do so, although the Minister is not bound to follow or implement the decision or recommendations of the Warden.
63 Similarly, the Warden is required to forward to the Minister the notes of evidence taken at the hearing - s 78 of the Mining Act.
64 Before Allanson J on the application for the order nisi and in respect of the grounds for review upon which the order nisi was granted, the applicants relied exclusively upon the doctrine of error of law upon the face of the record. Consequently, as Allanson J noted at [23] of his reasons, there was therefore no occasion to deal with the distinction between jurisdictional and non-jurisdictional errors of law. This has since prompted a series of submissions on behalf of the respondent that the 'record' in the present case does not include the learned Warden's reasons for decision or the transcript of evidence - propositions which I will now examine.
65 Allanson J concluded that the decision in Re Roberts SM; Ex Parte Burge [2003] WASCA 2 directly held that the record included the Warden's reasons, that is, the report made by the Warden to the Minister, and that that decision was binding on him. I agree, with respect, with his Honour's conclusions in that regard. Re Roberts SM; Ex Parte Burge is also binding upon me and I shall, of course, follow it.
66 Reference has already been made to s 98(6) of the Mining Act which provides that 'as soon as practicable after the hearing of the application the
(Page 26)
- Warden shall forward to the Minister the notes of evidence with the report and the Warden's recommendation, if any, on the application'. Allanson J referred to this at [25] of his reasons for decision on the application for the order nisi and went on to say:
This suggests that the notes of evidence are part of the report to the Minister. With modern technology, notes of evidence may be in the form of transcript: see Re Plutonic Operations Ltd, Sipa Resources Ltd v The Minister for Mines; Ex parte Roberts [1999] WASCA 133 [32]. Whether that makes the transcript part of the record for the purposes of an application for a prerogative writ is, on my view of the authorities, open to question, see for example, Re Heany; Ex parte Flint.
68 The principles emerge from the following passage in the joint judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ in Craig at [180] - [181]:
One finds in some recent cases in this country support for the adoption of an expansive approach to certiorari which would include both the reasons for decision and the complete transcript of proceedings in the 'modern record' of an inferior court. As Priestley JA pointed out in Commissioner forMotor Transport v Kirkpatrick (1988) 13 NSWLR 368, 389 - 390, that approach is not precluded by any direct decision of this Court. Nonetheless, it should, on balance, be rejected. For one thing, it is inconsistent with the weight of authority in this Court which supports the conclusion that, in the absence of some statutory provision to the contrary, the record of an inferior court for the purposes of certiorari does not ordinarily include the transcript, the exhibits or the reasons for decision. More importantly, the approach that the transcript of proceedings and the reasons for decision constitute part of 'the record' would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error. It is far from clear that policy considerations favour such an increase in the availability of certiorari to correct non--jurisdictional error of law …
(Page 27)
- The fact that the transcript of proceedings and the reasons for decision do not, of themselves, constitute part of 'the record' does not preclude incorporation of them by reference. That was recognised in Public Service Board (NSW) v Osmond (1986) 159 CLR 656, 667 where Gibbs CJ, in a judgment which represented the judgment of the court, referred to 'the rule, well established at common law … that reasons do not form part of the record, for the purposes of certiorari', and added the qualification 'unless the tribunal chooses to incorporate them'. As Gibbs CJ indicated, that qualification can be traced to the judgment of Denning LJ in R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338, 352. It has also been accepted in other judgments in this court.
69 Then, proceeding to discuss what degree of reference or incorporation may be necessary to achieve the result that reasons or transcript become 'incorporated' so as to constitute part of the record, the joint judgment in Craig proceeded to observe at 182:
The determination of the precise documents which constitute 'the record' of the inferior court for the purposes of a particular application for certiorari is ultimately a matter for the court hearing the application. The effect of the foregoing is that 'ordinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication'. (footnotes and citations omitted)
70 These passages were expressly recognised and considered by the Full Court in Re Heaney; Ex parte Flintv Nexus Minerals NL (Unreported, WASC, Library No 970065, 26 February 1997) but the court refrained from deciding what constituted the record and whether s 98(6) of the Mining Act produced the effect that reasons or a transcript of evidence forwarded to the Minister as part of the Warden's report rendered either part of the record because it was possible, in Re Heaney; Ex parte Flint, to determine that litigation without deciding that contentious question.
71 The topic has been the subject of extensive academic writing, an example of which is Aronson, Dyer & Groves, Judicial Review of Administrative Action (4th ed, 2009) who attempt to analyse the position after Craig at pars 4.220 - 4.235 (pages 232 - 237). Included in that writing is an attempt by the authors to advance a 'diffident' summary of the effect of Craig included within which is the following passage:
6. There were several cases before Craig in which the reviewing court received transcripts of the impugned proceedings, at least to the extent of establishing the course of those proceedings, the submissions of counsel and the decision-makers' responses, and
- even, on occasion, the evidence given and the documents received by the decision-maker. These cases were entirely at odds with the older learning on certiorari, and could not be reconciled with either the underlying assumptions or the actual rulings in the High Court's decision in Hockey v Yelland (1986) 159 CLR 656. Craig expressly overruled them. (footnotes omitted)
72 There was no real attempt by the present parties to address this issue or to subject the authorities upon it to any clear analysis or reconciliation. The simple position was that each party relied on Craig to support the antithetical propositions that the Warden's reasons for decision and transcript did form, or did not form, part of the record.
73 I have already concluded that I must follow authority and accept that in instances where a Warden gives reasons for decision which are incorporated as part of his statutory report to the Minister under s 98(6) that the reasons/report form part of the record. The reasons underlining that conclusion would seem to point to a similar characterisation being reached in relation to the transcript, but I do not consider that that is a necessary or inescapable conclusion having regard to the history of certiorari and the fact that under s 99(1) of the Mining Act the Minister's ultimate power of disposition depends upon receipt of the 'recommendation of the Warden' which gives little or no indication of what status is to be attributed to the notes of the evidence which accompany the recommendation and report which must be sent to the Minister. On the other hand, s 98(6) empowers the Minister to require the Warden to take further evidence in certain situations which suggests that the Minister may have regard to the notes of evidence taken before exercising that power.
74 This is not a suitable occasion to attempt to resolve this question in the absence of more detailed argument upon it. More importantly, a disposition of the question is not necessary for a resolution of the issues on this application. Without conceding that the transcript was part of the record, counsel for the respondent addressed all the submissions raised for the applicants, without prejudice to the submission that the transcript was not part of the record, and contended that no error of law was apparent from those parts of the transcript which had been put in evidence and, further, that for reasons already canvassed it was not possible to establish or conclude that there was any jurisdictional error in any of the findings made by the learned Warden. I agree that that is the case and, accordingly, the fate of this application does not depend upon whether or not the transcript forms part of the record.
(Page 29)
Applications to amend order nisi by adding further grounds
Proposed ground 4
75 I have already explained how, at the end of the hearing, counsel for the applicants was granted liberty apply for leave to amend the actual grounds of review to contend that one or more of the alleged errors of law asserted in the existing grounds may also, or alternatively, constitute a jurisdictional error. This was to address the contingency that there may have been a jurisdictional error which was not apparent on the face of the record and my readiness to consider such a possible amendment stems from the approach taken by Olsson AUJ in Re Roberts SM; Ex parte Burge at [59]. I have already set out the terms of the proposed new ground seeking to raise jurisdictional error and the particulars identifying those errors as being:
(i) the alleged wrongful inclusion of the pre-payment for aerial surveys in the light of reg 96C(3a)(a);
(ii) the inclusion of expenditure for wages and superannuation for Messrs Morellini and Denn; and
(iii) the application of the combined reporting exemption in s 102(2)(f) to expenditure not limited to exploration expenditure.
76 However, as these reasons have already examined and rejected the submissions that the learned Warden was in any respect in error with regard to his allowance of the pre-payment for the aerial survey expenditure or in relation to the allowance for the wages and superannuation of Messrs Morellini and Denn, no error of jurisdiction is shown by the Warden's determinations on those issues. Furthermore, the first two alleged errors in the proposed amended ground do not raise issues which have not been addressed and determined on the basis that the reasons for decision form part of the record. There is no purpose in dealing with the first two aspects of this proposed ground asserting jurisdictional error unless one were to take the position that the Warden's report and reasons for decision did not form part of the record but, as earlier set out, I have treated it as part of the record because I consider that existing authority binding on me requires that.
77 These observations apply with equal force to the third proposed ground alleging jurisdictional error, namely the contention that the Warden erred in law by finding that the aggregate expenditure in respect to the three tenements exceeded the minimum required and hence
(Page 30)
- qualified each individual tenement for an exemption from expenditure in view of the combined reporting status in that his Honour failed to take into account the terms of s 102(2)(h)(ii) of the Mining Act which provides that only exploration expenditure can be aggregated for this purpose. This is already the subject of proposed ground 3 sought to be introduced by the applicants at the hearing and was argued fully on the basis that the question of leave to amend by adding that ground would be dealt with in this final decision.
Aggregation of expenditure
78 Paragraphs [79] and [80] of the learned Warden's reasons for decision have previously been set out. There his Honour made reference to the three Tampia tenements as being attributed with combined reporting status and his Honour observed that the total allowable expenditure in respect of those three tenements exceeded the aggregate of the required minimum expenditure by a significant amount. His Honour also referred to the necessary geological and exploration connection between those three tenements before concluding that the failure to comply with the expenditure condition in respect of M70/815 by a relatively small amount and despite the relatively large non-compliance in respect of M70/816 he reached the opinion that the shortfall of those two tenements was not sufficient in all the circumstances to justify forfeiture. In [80] his Honour mentioned that the potential for the results obtained in respect of the aerial survey over E70/2132 to be of considerable value in the future exploration and possible development of M70/815 and M70/816 was a significant factor in concluding that forfeiture was not justified.
79 The proposed ground 3 sought to be introduced by the applicants would advance the contention that his Honour was wrong in taking this approach because s 102(2) of the Mining Act provides that:
102(2) A certificate of exemption may be granted for any of the following reasons:
…
(h) that -
(i) the mining tenement is one of two or more mining tenements (combined reporting tenements) the subject of arrangements approved under s 115A(4) for the filing of combined mineral exploration reports; and
- (ii) the aggregate exploration expenditure for the combined reporting tenements would have been such as to satisfy the expenditure requirements for the mining tenement concerned and that aggregate exploration expenditure being apportioned between the combined reporting tenements.
80 The proposed ground seeks to assert that the learned Warden failed to consider whether the expenditure allowed for those three tenements did, in fact, constitute allowable expenditure for the purpose of s 102(2)(h) by failing to consider whether it was 'exploration expenditure'. The ground seeks to assert that the Warden wrongly aggregated all the expenditure found to be claimable as totalling $124,176 compared with a minimum expenditure requirement of $88,257 when, if he had included only exploration expenditure (the aerial survey) the claimable expenditure in respect of each tenement would, so it was submitted, at best, be as follows:
M70/816 Aerial Survey $ 5,105
Total $ 5,105
Shortfall $40,911
M70/815 Aerial Survey $ 2,016
Total $ 2,016
Shortfall $16,225
E70/2132 Aerial Survey $63,899
Total $63,899
(No shortfall; excess of $39,899)
82 One factor of relevance when considering whether leave should be granted to the applicants to amend the order nisi to include proposed ground 3, the alleged error in calculating the expenditure with regard to combined reporting of the tenements by failing to identify only exploration expenditure, is the fact that no such issue was raised or addressed at the hearing. It was evident that the respondent was seeking to allocate not only the aerial survey expenditure but the overhead/administration expenditure and portions of the wages and
(Page 32)
- superannuation paid to Messrs Denn and Morellini to the various tenements and that attention was given to how those various components of the claimed expenditure should be so allocated. The situation was, therefore, set for the applicants to contend that 'aggregate exploration expenditure' as that term is defined in s 102(2a) of the Act could nor or should not be subject to such an allocation. That was not done and no explanation has been offered to suggest that the point could not have been taken at that time or to suggest that, for any other reason, it was considered unnecessary or inadvisable to raise it.
83 The point not having been raised before and, therefore, not having been expressly addressed by the learned Warden means that there would ordinarily need to be special reason to justify it being raised at this review stage. Sometimes a point may be of such significance that it may be allowed to be raised at a late stage because it has the potential to be determinative of the proceedings or some major issue within them and that outcome could not have been avoided or otherwise met by other evidence or submissions had it been raised earlier - see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 439 and Green v Sommerville (1979) 141 CLR 594, 607 - 608 (Mason J). However, that approach is only permissible when a question of law is raised for the first time upon the construction of a document or upon facts either admitted or proved beyond controversy. If it may have been possible for the point to have been met by other evidence if raised at the trial or the earlier hearing, it would not be in the interests of justice to permit it to be raised at a later stage or on appeal so depriving the party against whom the point is raised of the opportunity to answer it effectively. It is difficult to say in the present instance whether or not an effective answer might have been made to this point before the Warden but the possibility that some or all of the wages and superannuation payments made to Messrs Denn and Morellini may have been in respect of or involved exploration expenditure cannot be excluded.
84 It is also necessary to note that the effect of aggregation of exploration expenditure in respect of which there is combined reporting under s 102 is to render the tenement holder exempt or partially exempt from the expenditure conditions applicable to one or more of those tenements. Consequently, a partial exemption allowed in respect of M70/816 because of aggregate exploration expenditure involving an aerial survey over the three Tampia tenements would still leave the tenement holder entitled to claim allowable expenditure which was not exploration expenditure in relation to the individual tenements in respect of which such expenditure was outlaid.
(Page 33)
85 As far as the contention that the only exploration expenditure for the three tenements was the aerial survey and that only this could be aggregated and apportioned among the three tenements, this does not mean that other expenditure properly claimable in relation to each separate tenement should not also be claimed. Hence, expenditure for rates and rent on the separate tenements were individual expenses calculated with reference to the charges for each tenement and remained properly claimable. The calculation of other expenses allowed in relation to the three claims, namely, overheads (administration expenses) and wages and superannuation for Messrs Morellini and Denn were allocated as a result of aggregation of all expenditure under those headings and an appropriate pro rata allocation was made to each of the three tenements.
86 As I have read the reasons for decision and the manner in which the case was conducted, this was done on the basis that the overhead expenditure and the wages and superannuation of both Morellini and Denn were expenditures for services which were utilised for each of the tenements concerned. The allocation selected did not involve or imply that credit for work done on one tenement was being attributed to another tenement or vice versa. There is no basis for any conclusion in the present case that expenditure allowed for overheads/administration or for wages or superannuation was allocated in such a way that credit for those services or work was attributed to a particular tenement which received no benefit from the expenditure or a benefit smaller in value than the amount attributed. Accordingly, if it is the case that only the aerial survey expenditure constituted exploration expenditure which could be aggregated over tenements with combined reporting status, then that would make no difference to the calculations and findings made by the learned Warden. Furthermore, his Honour specifically found that the aerial survey provided results which had the potential to be of considerable value for future exploration and possible development of the two contiguous mining leases which were located in the centre of the exploration licence.
87 A further reason for rejecting proposed ground 3 is that the ultimate discretionary decision of the Warden not to recommend forfeiture is a decision made under s 98 of the Act, subsection (5) of which requires the Warden not to recommend forfeiture unless satisfied that the non-compliance is, 'in the circumstances of the case, of sufficient gravity to justify forfeiture'. The criteria against which the determination of the gravity of the non-compliance is to be made is, as stated, 'in the circumstances of the case', which is a broad and comprehensive spectrum of considerations not limited to any one criterion and not identifying any
(Page 34)
- one or other criterion as being determinative. His Honour identified at [80] the context that there was a potential for the results obtained in respect of the aerial survey over all three tenements to be of considerable value for future exploration and possible development of the contiguous tenements as being a significant factor in his conclusion not to recommend forfeiture. There can be no basis for upholding the contention that there was any express or implicit error or any misapprehension or undue confinement of the Warden's discretion under s 98 in reaching that conclusion. These were tenements which, for the very reasons which supported that conclusion, also qualified them for attribution of combined reporting status but it was not their combined reporting status which led to his Honour's conclusion. Rather, it was the contiguity of the three tenements and the fact that the aerial survey was capable of providing information and results useful for the future exploration and development of all three tenements. That factor is common to both characterisations but it does not mean that one characterisation depends upon the other. Instead, each has a common source.
88 No error has been established by the approach taken by the learned Warden to the way in which the expenditure was allocated between the several tenements. The ultimate decision not to recommend forfeiture was made in the exercise of a broad and general discretion which has not been shown to have been affected or constrained by any error.
89 Accordingly, the proposed ground 3, although fully canvassed in argument, must fail. Because neither it nor the proposed ground 4 for which leave to introduce was later sought can be successful or in any way alter the outcome of this application, I consider that the appropriate course to follow is to refuse leave to amend to introduce them. Had I granted leave to amend to introduce them, I would have rejected them for the reasons given.
90 In the result, therefore, this challenge to the orders, findings and report of the Warden in this case must fail and the order nisi should be discharged.
12
1