Re Warden Graham Calder

Case [2010] WASC 393


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE WARDEN GRAHAM CALDER; EX PARTE CAZALY IRON PTY LTD [2010] WASC 393

CORAM:   SIMMONDS J

HEARD:   8 FEBRUARY 2010

DELIVERED          :   20 DECEMBER 2010

FILE NO/S:   CIV 3051 of 2009

MATTER                :An application for a writ of certiorari directed to his Honour Warden Graham Calder, Warden of Mines sitting in Perth

EX PARTE

CAZALY IRON PTY LTD
Plaintiff

Catchwords:

Prerogative writs - Application for order nisi for writ of certiorari and related orders - Mining Warden answering a preliminary question in respect of objections to applications for exploration licences under Mining Act 1978 (WA) - Preliminary question whether objectors had subsisting rights of occupancy under Iron Ore (Rhodes Ridge) Agreement Authorisation Act 1972 (WA) answered 'yes'

Prerogative writs - Application for order nisi for writ of certiorari and related orders - Whether arguable Mining Warden erred in construction of provisions relating to rights of occupancy including the renewal of the periods of such rights in Iron Ore (Rhodes Ridge) Agreement - Whether arguable Mining Warden erred in construction of provision in Agreement allowing for extension or further extension of periods and variation or further variation of dates referred to in Agreement

Legislation:

Iron Ore (Rhodes Ridge) Agreement Authorisation Act 1972 (WA), s 3
Mining Act 1904 (WA), s 276, s 277
Mining Act 1906 (NSW)
Mining Act 1978 (WA), s 3, s 5, s 8

Result:

Order nisi issued
Other orders made

Category:    B

Representation:

Counsel:

Plaintiff:     Mr E M Corboy SC

Solicitors:

Plaintiff:     DLA Phillips Fox

Case(s) referred to in judgment(s):

Associated Minerals Pty Ltd v NSW Rutile Mining Company Pty Ltd [1962] ALR 236; (1961) 35 ALJR 296

Aznavour Pty Ltd v City of Mandurah [2002] WASC 95

Cazaly Iron Ore Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282

Cazaly Iron Pty Ltd v Hamersley Resources Limited [2008] WAMW 9

Cazaly Iron Pty Ltd v Hamersley Resources Limited [2009] WAMW 9

Commonwealth v Antonio Giorgio Pty Ltd (1986) 67 ALR 244; (1986) 12 FCR 51

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd (Fleet Street Casuals Case) [1982] AC 617

Perpetual Trustees WA Ltd v City of Joondalup (Unreported, WASC, Library No 990195, 16 April 1999)

Re Anastas; Ex parte Welsby [2001] WASC 178

Re Capobianco; Ex parte Castelli (Unreported, WASC, Library No 980567, 25 September 1998)

Re Matthews; Ex parte Mackenzie [2000] WASC 147

Re Minister for Mines, Fuel & Energy; Ex parte Trythall (1991) 7 WAR 375

Re Patrick John Walker, Commissioner For Fair Trading; Ex Parte Fremantle Islamic Association Incorporated [2003] WASC 176

Re Roberts SM; Ex Parte Burge [2003] WASCA 2

Savage v Teck Exploration Ltd (Unreported, WASCA, Library No 7285, 16 September 1988)

Talbot v Lane (1994) 14 WAR 120; (1994) A Crim R 115

SIMMONDS J: 

Introduction

  1. This is an application for an order nisi for…

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Re Warden Graham Calder [2010] WASC 393
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[2010] WASC 393
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CaseChat Overview and Summary

In the matter of Re Warden Graham Calder, the applicant sought prerogative writs, including a writ of certiorari, on the basis that the Mining Warden had erroneously answered a preliminary question in relation to objections to applications for exploration licences under the Mining Act 1978 (WA). The dispute centred on whether the objectors had rights of occupancy under the Iron Ore (Rhodes Ridge) Agreement Authorisation Act 1972 (WA) and whether the Warden's interpretation of these rights was correct. The parties involved included the applicant, the State of Western Australia, and Hamersley Resources, an interested party.

The court was tasked with determining whether the Mining Warden had erred in his interpretation of the provisions relating to rights of occupancy, including the renewal of these rights, under the Iron Ore (Rhodes Ridge) Agreement. The applicant argued that the Warden had misinterpreted the provisions, particularly those concerning the short term and long term phases of the Rhodes Ridge Joint Venture. The State of Western Australia and Hamersley Resources did not oppose the application for an order nisi but sought to be joined if the order was granted. The court needed to assess the arguability of the applicant's claims regarding the Warden's interpretation of the Agreement.

The court examined the submissions and found that the applicant's grounds for the order nisi were arguable. The court noted that the Warden's interpretation of the provisions in the Agreement, particularly those concerning the short term phase, was consistent with the policy of the State's mining legislation. The provisions for the short term, including the limited rights of occupancy and the requirement for timely and efficient development, were intended to facilitate quick progress. The court found that the applicant's arguments regarding the Warden's interpretation of the Agreement's provisions were sufficiently arguable to warrant the granting of an order nisi.

The court concluded that the applicant's claims were arguable and granted the order nisi for the writ of certiorari and related orders. The court also allowed the State of Western Australia and Hamersley Resources to be joined as parties if the order nisi was made absolute. The final orders included an order nisi for the writ of certiorari, the joining of the State and Hamersley Resources, and directions for further proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I further note the following, from Malcolm CJ in Savage v Teck Exploration Ltd (Unreported, WASCA, Library No 7285, 16 September 1988):On the application for the order nisi the Judge hearing the application has an opportunity to assist the Full Court by making a preliminary examination of the formulation of the grounds and, where necessary, limiting their scope or permitting amendments so that the matter may proceed to the Full Court on a proper basis. I turn now to consider the case for the order nisi represented by the grounds in [11] of the notice of originating motion. At the hearing before me there was an appearance for the State, and its counsel indicated it did not oppose, and did not seek to be heard on, the issue of the order nisi. But the State did seek to be heard on the State's application to be joined in the event the order nisi were granted. For Warden Calder a notice of intention not to oppose application for order nisi had been filed before the hearing. Hamersley Resources appeared as an interested party by counsel and he indicated it did not oppose, or seek to be heard on, the issue of the order nisi. However, it sought, but did not press, to be joined in the proceedings were an order nisi to be issued. At the hearing before me the submissions by senior counsel for Cazaly, as I understood them, were that underpinning the grounds stated in the notice of originating motion [11] was the construction of cl III of pt II of the State Agreement, as a code on the renewal of the period of the rights of occupancy. Those provisions should be so construed for the following reasons. The State Agreement distinguished between the short term, initial phase, and the long term, or subsequent phase, of the Rhodes Ridge Joint Venture. The short term was the period which would run no longer than the fifth anniversary of the commencement date: see for that period not only s 3.06, in fine, but also s 5.02, which uses the same language for the date by which proposals could be made. In that short term, investigations, studies and proposals were to be made, during which term the State would consider and might approve the proposals and grant the mineral lease. That grant would be the beginning of the long term. The provisions of cl III of pt II, including but not limited to s 3.02, s 3.05 and s 3.06, together with what was described as the self-executing character of s 3.09, were, it was submitted, a reflection of the short term. This reflection was particularly in the provisions in cl III for the expiry of the period of 12 months of the right of occupancy, in the State Agreement s 3.05, if there was no renewal within that period, and the expiry of the five year period in s 3.06 without State agreement within that period to renewal beyond that period. Such expiry meant the determination of the right of occupancy, as provided for by s 3.09, in the first case; and by both that provision and s 3.06 itself, in the second. Indeed, it should be noted that under s 3.09(c) another of the events on which the right of occupancy ceased was the grant of the mineral lease pursuant to s 9.01. The State's concern for the short term, reflected in those provisions, was to have matters move quickly with the aid of limited rights granted temporarily, until the grant of the mineral lease. This concern was consistent with the policy that senior counsel submitted underlay the mining legislation of this State, or at least the 1904 Act, that entities should not be allowed to sit on land they did not propose to develop in a timely and efficient way.