Re Warden Graham Calder

[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 a writ of certiorari.  The order sought was that Mining Warden Calder show cause why a writ of certiorari should not issue against him to remove a decision of his into the Court of Appeal for the purpose of it being quashed.  The decision was one of two on preliminary issues on which Warden Calder had directed there be a hearing of applications for exploration licences by Cazaly Iron Pty Ltd (Cazaly).  Warden Calder's decision, for which the order nisi was sought, was that the objectors to Cazaly's applications for exploration licences had rights of occupancy in respect of temporary reserves on the lands to which the applications related.

2. At the hearing before me I issued the order nisi and made a number of related orders.  I indicated I would provide reasons for the issue in due course.  These are those reasons.

3. I begin these reasons by setting out the background to the proceedings before Warden Calder.  I then describe his decision and the reasons for it, in sufficient detail to permit the grounds Cazaly states for in its application for an order nisi to be understood.  I then describe the law applicable to the determination of whether or not to grant an order nisi in a case like this one, before applying that law to the case Cazaly put to me.  The final section of these reasons is a description of the orders I made.

Background:  the applications for exploration licences and objections to those applications

1. On 18 January 2007 Cazaly applied for the grant of four exploration licences in respect of lands in the West Pilbara mining field (the ELAs).  The ELAs were made under the Mining Act 1978 (WA) (the 1978 Act).

2. On 20 February 2007 Hamersley Resources Limited (Hamersley Resources) lodged an objection to each of the ELAs.  Each of the objections included that (cl 2) 'the land the subject of the application' was 'temporarily reserved from occupation' pursuant to the Mining Act 1904 (WA) (the 1904 Act) in accordance with s 3.02 of the Iron Ore (Rhodes Ridge) Agreement (the State Agreement) and was the subject of rights to occupy held by the Rhodes Ridge Joint Venturers (the Joint Venturers) pursuant to s 3.06 of the State Agreement. Hamersley Resources was the manager of the Rhodes Ridge Joint Venture, and objections to the ELAs were also lodged by other Joint Venturers, being Hamersley Exploration Pty Ltd, Hamersley WA Pty Ltd and Hope Downs Iron Ore Pty Ltd (collectively, with Hamersley Resources, Hamersley), and also by Wright Prospecting Pty Ltd (Wright).

Background:  the State Agreement

1. The State Agreement is set out in the Schedule to the Iron Ore (Rhodes Ridge) Agreement Authorisation Act 1972 (WA) (the Authorisation Act). Section 3 of the Authorisation Act states that the provisions of the State Agreement are to 'operate and take effect as though those provisions were enacted in [the] Act', subject to the provisions of the State Agreement. There were no qualifying provisions evident for the purposes of the application for the order nisi.

2. In overview, the State Agreement provides for a possible development of certain mining areas in the Pilbara (the mining areas) by the mining, treatment and processing of iron ore, and by related works and activities.  The State Agreement is in five parts, pts I to V.

3. Part I of the State Agreement includes definitions of certain terms (see s 1.01), provisions concerning the relationship between the provisions of the State Agreement and State legislation (see s 1.04 ‑ s 1.08) and provisions concerning the construction of the State Agreement (see s 1.03), including a provision set out below, s 1.03(e).

4. From the provisions concerning the relationship between the provisions of the State Agreement and State legislation, I note in particular s 1.04, which provides that for the purposes of the Agreement:

   [T]he provisions of any relevant existing Act will be deemed to be modified or amended to the extent necessary to enable this Agreement to be given full force and effect and in particular without limiting the generality of the foregoing the Acts mentioned in Sections 1.05 to 1.08 inclusive shall be deemed to be amended to the extent indicated therein.

5. The 1904 Act s 276 and s 277 were modified and deleted respectively by the State Agreement. Those provisions concerned rights of occupancy under the 1904 Act.

6. The 1904 Act s 276 provided as follows:

   The Minister and, pending a recommendation to the Minister, a Warden, may temporarily reserve any Crown land from occupation, and the Minister may at any time cancel such reservation:  Provided that if such reservation is not confirmed by the Governor within twelve months, the land shall cease to be reserved.

   The Minister may, with the approval of the Governor, authorise any person to temporarily occupy any such reserve on such terms as he may think fit, but subject to the provisions of section two hundred and seventy‑seven.

7. By s 1.05 of the State Agreement the 1904 Act is 'deemed amended as if Sections 277 and 278 thereof were both deleted therefrom'. The 1904 Act s 277(4) provided for renewal of rights of occupancy. The State Agreement, as will be seen, contains a provision for renewal of rights of occupancy, s 3.06 in cl III of pt II. That provision is one of two provisions which are of central importance to Cazaly's case for the issue of the order nisi. The effect of the State Agreement s 1.04 and s 1.05 is that the 1904 Act s 276 was modified at least by the substitution of s 3.06 for s 277.

8. It may be noted that effective from 1 January 1982 s 3(3) of the 1978 Act repealed the 1904 Act.  The 1978 Act did not then contain, and has not since contained, a power to grant rights of occupancy.

9. However, the 1978 Act s 5(1) and (2) provide as follows:

   (1)Nothing in this Act shall affect the provisions of any Act in force on the commencing date that approves or ratifies any agreement to which the State is a party and under which a party to the agreement is authorised or required to carry out any mining operations pursuant to the agreement.

   (2)Notwithstanding anything in the Second Schedule, a party to an agreement referred to in subsection (1) ‑

   (a)who is the holder of an existing mining tenement under that agreement may continue, subject to that agreement, to exercise the rights conferred by that mining tenement; or

   (b)to whom an existing right of occupancy has been granted under section 276 of the repealed Act or that agreement, or under both section 276 of the repealed Act and that agreement, as the case requires, may continue, subject to that agreement, to exercise that right of occupancy,

   as though the repealed Act had not been repealed.

10. The 1978 Act s 8(1) defines 'the repealed Act' as the 1904 Act.

11. Part II of the State Agreement includes provisions for the undertaking of investigations in the mining areas with a view to the preparation and submission to the State of feasibility studies concerning the development of those areas for the mining, treatment and processing of iron ore, and with a view also to making proposals to the State for such development:  see s 2.01 and s 5.02.  Part II also includes provisions for the consideration and approval of any such proposals by the Minister responsible for the administration of the State Agreement (the State Agreement Minister):  see s 6.01.  Part II further includes provisions for the determination of the State Agreement before implementation of any such proposal:  see s 8.01.  Perhaps most importantly for my purposes, pt II contains provisions relating to rights of occupancy:  see cl III of pt II (s 3.01 - s 3.09).

12. Part III of the State Agreement includes provisions for the implementation of approved proposals, including by the State granting a mineral lease (mineral lease) for the mining of iron ore from the part or parts of the mining areas referred to in the approved proposals:  see s 9.01.  Part III also provides for certain works necessary to permit mining and shipment of iron ore at minimum annual rates:  see particularly s 12.01.

13. Part IV of the State Agreement includes provisions for the investigation of, submission of proposals for and approval of proposals for 'secondary processing' of iron ore from the mineral lease:  see particularly s 23.01.

14. And pt V of the State Agreement includes provisions for the determination of the State Agreement (see s 26.01), its variation (see s 28.01) and, of central importance to Cazaly's case for the issue of the order nisi, for the extension of periods or variation of dates referred to in the State Agreement (see s 29.01).

15. I turn now to set out the provisions of the State Agreement which are of principal relevance to me.  They are s 3.02, s 3.05, s 3.06, s 3.09(b), s 25.01, s 29.01 and s 1.03(e).

16. The State Agreement s 3.02, in material part, provides for the creation of temporary reserves (the TRs) over the mining area and for a right of occupancy in respect of the land the subject of the TRs as follows:

    As soon as practicable after the commencement date the State will cause the Minister for Mines in exercise of the power in that behalf conferred by Section 276 of the Mining Act to temporarily reserve from occupation the land more particularly described in the 'particulars of mining areas' appended to this Section and with the approval of the Governor to authorise the Joint Venturers to temporarily occupy such land (the right of the Joint Venturers so to do pursuant to such authority being hereinafter referred to as 'the right of occupancy') for the period and upon and subject to the terms and conditions hereinafter mentioned.

17. The 'commencement date' is the date on which all of the parties to the State Agreement executed it:  that date was 12 October 1972.

18. The State Agreement s 3.05 provides for the temporary occupancy as follows:

    Subject as provided in Section 3.06 the period of the right of occupancy will be a fixed period expiring twelve months after the commencement date or on the date of the granting of the mineral lease pursuant to Section 9.01 (notwithstanding that the instrument of such lease may not be issued) whichever is the earlier date.

19. The mineral lease has not been granted.

20. The State Agreement s 3.06 provides for occupancy renewal as follows:

    If at any time within one (1) month prior to the expiration of the period of the right of occupancy (whether the period be that mentioned in Section 3.05 or any renewed period granted pursuant to this Section) the Joint Venturers make a written request to the State that the said period be renewed the State will cause the Minister for Mines to renew the same for such period (not exceeding twelve months on any one occasion) and upon and subject to the same terms and conditions but (unless the State shall otherwise agree) the period of the right of occupancy will not be renewed beyond the fifth anniversary of the commencement date and will expire at noon on that date.

21. The State Agreement s 3.09 provides that the right of occupancy 'will forthwith cease and determine on the happening of any of the following events', one of which, in s 3.09(b), is as follows:

    [U]pon the initial or any renewed period thereof expiring by effluxion of time.

22. The State Agreement s 25.01, in pt V, provides that:

    The provisions of this Part (Part V) shall have application throughout this Agreement.

23. The State Agreement s 29.01, in pt V, provides for the extension or further extension of periods referred to in the State Agreement or the variation or further variation of dates referred to in the State Agreement as follows:

    Notwithstanding any other provision of this Agreement the Minister may at the request of the Joint Venturers from time to time extend or further extend any period or vary or further vary any date referred to in this Agreement for such period or to such later date as the Minister thinks fit whether or not the period to be extended has expired or the date to be varied has passed.

24. The term 'Minister' is defined in the State Agreement s 1.01 as the State Agreement Minister.

25. The relationship between the State Agreement s 29.01 and s 3.06 lies at the heart of Cazaly's case for the issue of the order nisi.

26. Finally, the State Agreement s 1.03(e) provides in material part as follows:

    The State and the Minister will be deemed to have power and authority to exercise all such powers and discretions and to do all such other acts matters and things as may be required or be necessary to be exercised or done in order to carry out and give effect to the provisions of this Agreement.

Background:  the decisions in Cazaly WAMW (2008) and Cazaly WAMW (2009)

1. On 10 July 2008, for the reasons set out in Cazaly Iron Pty Ltd v HamersleyResources Limited [2008] WAMW 9 (Cazaly WAMW (2008)), Warden Calder made directions for the hearing of the ELAs including the following:

   2.Upon commencement of the hearing, and until further directions, the hearing is to be confined to the determination of the following preliminary issue:

   (a)Whether as at 18 January 2007 the Rhodes Ridge Joint Venturers held, and continue to hold, the right of occupancy in the Objections (Right of Occupancy); and

   (b)If the answer to question (a) is yes, whether as a matter of law, that answer precludes the grant of the exploration licences applied for by the Applicant [Cazaly] over the area the subject of the Right of Occupancy, (the preliminary issue).

2. On 25 September 2009 Warden Calder delivered his decision in Cazaly Iron Pty Ltd v HamersleyResources Limited [2009] WAMW 9 (Cazaly WAMW (2009)) in which he answered 2(a) 'yes' and 2(b) 'no':  see [207] and [213], respectively.  Cazaly's application for the order nisi is only in respect of the decision to answer 2(a) in that way (the Decision).

Background:  facts and submissions in Cazaly WAMW (2009)

1. In Cazaly WAMW (2009) Warden Calder described the facts not in dispute between the parties and their submissions in terms that included the following [30] ‑ [35]:  the reference there to 'FOI Documents' is to the documents obtained by requests under the Freedom of Information Act 1992 (WA) by the then solicitors for Cazaly concerning 'the purported renewals of the right of occupancy' (see [25]):

   On 18 June 1973 the Minister for Mines, authorised the Joint Venturers to temporarily occupy all of the land the subject of all of the TRs.  The approval of the Governor to such authorisation was given on 25 July 1973 and was gazetted on 3 August 1973.  Authority for the Joint Venturers to temporarily occupy the TRs was given by the Minister pursuant to s 3.02 of the State Agreement.  In accordance with s 3.03 of the State Agreement, the condition precedent expressed therein to the grant of the rights of occupancy, namely, that the Joint Venturers acquire by transfer all existing rights of occupancy to, or in respect of the TRs and surrender the same to the Crown, had been fulfilled as required.

   In accordance with s 3.05 of the State Agreement, the right of occupancy in each case was granted for a fixed period expiring 12 months after the 'commencement date'.  In s 1.01 of the State Agreement 'commencement date' is defined to mean the date on which the State Agreement was executed by all the parties, namely, 11 October 1972 [sic - 12 October 1972].

   Between 18 June 1973 and 4 January 2008 many steps have been taken by the Joint Venturers (by now consisting of all of the Objectors), by the State, by the Minister for Mines and by the State Agreement Minister with the intention of achieving, by successive renewals of the period of occupancy in respect of all of the TRs, the subsistence of the rights of occupancy in each case until and beyond the present time.  In that regard, the Applicant produced a schedule entitled Rhodes Ridge Rights of Occupancy (the 'Rights of Occupancy Schedule') in which are set out the fact of and the dates of occurrence of relevant steps taken.

   The Rights of Occupancy Schedule also contains a column headed 'Previous Term Expired On'.  In that column the Applicant has included dates upon which it says each period of right of occupancy for all of the TRs expired.  The correctness of that assertion is a critical and necessary element of the case for the Applicant in respect of the preliminary issues.  The Objectors deny the correctness of the assertion in each instance with the exception of one relevant period, namely that expiring on 31 December 2006, in respect of which the Applicant says that the written application was dated 10 November 2006 and the renewal of the period of occupancy for a term expiring on 31 December 2007 was confirmed by the Governor on 28 December 2006 and the relevant Government Gazette publication occurred on 5 January 2007.  There are, however, other areas of dispute between the parties in connection with that purported renewal.  What the Applicant says about those asserted dates of expiry is that the purported renewals of the period of the right of occupancy, in all but three instances, were invalid as the right of occupancy preceding the period the subject of the purported renewal of the right of occupancy had expired by effluxion of time and, therefore, had ceased and determined.  The reason for that, the Applicant argues, is that the relevant decisions of the Ministers were, in all such cases, made after the expiry date asserted by the Applicant.

   In a schedule summarising its oral submissions in respect of defective renewals ('the Defects Schedule'), the Applicant has, in respect of all but one instance, namely, for the period of the right of occupancy which it asserts ended on 31 December 1994, identified defects which it says have occurred in connection with the renewal of the right of occupancy by the Minister for Mines and also in respect of the extension beyond the fifth anniversary of the commencement date of the State Agreement of the period within which rights of occupancy could be renewed.  The Applicant submits that there should have been, prior to that anniversary date, an extension of the five‑year period during which the Joint Venturers had a right, upon request to the State, to have the rights of occupancy renewed.

   In a schedule that was filed by Hammersley in response to the Applicant's Defects Schedule, reference is made to many of the FOI Documents which, the Objectors submit, demonstrate that, pursuant to s 29.01 of the State Agreement, where it was necessary and appropriate to do so, the State Agreement Minister extended all relevant periods or varied all relevant dates referred to in the State Agreement with the effect that, contrary to the submissions of the Applicant, no relevant period expired which has had or could have had the consequence that any right of occupancy period has ceased and determined as a consequence of it being not being renewed before expiry.  The Objectors rely upon express references, where they appear in the material that is before me, to s 29.01 and, where no such express reference has been made, upon inferences to be drawn from the contents of the FOI Documents which disclose actions taken by both of the Minister for Mines and the State Agreement Minister together with decisions made by those Ministers, advice and recommendations submitted by Departmental advisors to the Ministers and requests made by the Joint Venturers to the State for renewal of the periods of the rights of occupancy.  In those instances where the Applicant alleges that the FOI Documents discloses a lack of evidence that the necessary decisions were made by either or both of the Ministers, the Objectors say that there is evidence that supports the drawing of the inference that such decisions were made.  In the case of the periods ending 31 December of 2006 to 2009, the Objectors say there is evidence in the form of the gazettal of the renewals which is sufficient to invoke the provisions of s 77 of the Evidence Act.

Background:  the bases for the Decision in Cazaly WAMW (2009)

1. It appears to me, on the kind of review that a court considering an application for an order nisi should undertake (I return to the standard for that kind of review below), that the bases for the Decision in Cazaly WAMW (2009) were that:

   1.The State Agreement s 29.01 applied to s 3.02, s 3.05 and s 3.06 such that the State Agreement Minister could, under s 29.01, extend both the time within which the Joint Venturers could apply for renewal under s 3.06, and the period of the right of occupancy in s 3.05:  see [201];

   2.The State Agreement s 29.01 permitted the State Agreement Minister to extend the period of the right of occupancy in s 3.05 by doing so at a point in time after what would otherwise have been the expiry of that period, so that a renewal of that period under s 3.06 made within that extension would occur without there having been an expiry of the previous period and thus without there having been a determination of that right of occupancy under s 3.09(b):  see [192];

   3.The State Agreement s 3.06, in fine, by its reference to 'unless the State shall otherwise agree', applied so as to permit the State to agree to a renewal of the period of the right of occupancy beyond the fifth anniversary of the commencement date, with the effect that again under that provision the State would be obliged on request by the Joint Venturers under s 3.06 to cause the Minister of Mines to renew the period as referred to in s 3.06:  see [195]; in any event

   4.The State Agreement s 29.01 permitted the State Agreement Minister to extend the period of the right of occupancy beyond the fifth anniversary of the commencement date:  see [201];

   5.The State Agreement s 1.03(e) permitted the State as well as the State Agreement Minister to exercise the powers and authorities under s 29.01 (see [202]); and s 1.03(e) also permitted the State and the State Agreement Minister to exercise the power of the Minister of Mines to renew as referred to in s 3.06:  see [202] read with [101] and [187], in fine; and

   6.The FOI documents together with 'the common law presumption of regularity' (see [205]) were sufficient for Warden Calder to be satisfied that:

   [F]or every year since 11 October 1973 [the expiry of the period of 12 months after the commencement date, being the expiry of the first occupancy period referred to in s 3.05] up to the present time there has been a valid renewal of the rights of occupancy in respect of all of the TRs and that the rights of occupancy subsist up to the present time [205].

2. In my view, the analysis that underpinned conclusions 1 and 2 (above) emerges most clearly from Cazaly WAMW (2009) [187] and [192], as follows (the 'Applicant' referred to is Cazaly):

   The primary focus of the Applicant's submissions concerning whether or not it is open to utilise the provisions of s 29.01 in connection with periods mentioned in s 3.06 is upon the period within which the renewals were made by the Minister for Mines.  Section 3.06 specifically states a period within which the Joint Venturers may make an application for renewal of a right of occupancy period.  The section does not, expressly state any period within which the Minister is to grant the renewal.  The Applicant's submissions rely in part upon the drawing of an inference from the operation of the provisions of s 3.09(b) of the State Agreement that renewal must be completed before the end of the occupancy period that immediately precedes the period for which the renewal is sought.  If it is correct to draw such an inference from paragraph 3.09(b) then that is, in my opinion, a compelling reason why the provisions of s 29.01 should have application to periods of time that are specified within Clause III.  To exclude the application of s 29.01 from periods referred to in s 3.06 would have the potential result that the Joint Venturers would suffer an extreme penalty as a consequence of the State or the Minister, due to reasons entirely beyond the control of the Joint Venturers and not because of any fault on the part of the Joint Venturers, failing to renew an occupancy period before the unextended expiry date.  A relatively short period of time is specified within which an application for renewal may be made; that period is expressed in s 3.06 to be within one month prior to the expiration of the period of occupancy.  An application can be made up to the last day of that specified period.  Although it may be suggested that the Joint Venturers should not wait until the last moment to make their application for renewal, nevertheless, there may well be circumstances which justify the timing of the application near or at the end of that month.  For example, the conditions of the right of occupancy give the Minister power to cancel the right of occupancy for breach of any of the conditions.  There is the potential for a query or a dispute to have arisen in respect of compliance with conditions of occupancy that would require or justify a relatively late application being made.  By way of further example, there are other matters contained within those conditions such as obtaining the Minister's approval to transfer an interest in the right of occupancy, the contents of and the timing of lodgement of required reports, the Joint Venturers obligation to have satisfied the Minister as to the sufficiency of their prospecting activities, which could all justifiably delay, not only the lodgement of the application for renewal, but also the determination of the renewal application.  It is entirely inconsistent with the clear long‑term nature of the State Agreement, in the context of the objectives of the State and of the Joint Venturers and of the subject matter of the State Agreement, that the Agreement could be brought, without any means of preventing it (other than legislation), to an end merely because a period of time had elapsed.  That would be particularly so where both parties did not want such an outcome.  To interpret s 29.01 in the way suggested by the Applicant would also be inconsistent with the intention of the provisions of para 1.03(e) pursuant to which the State and the Minister are deemed to have power and authority to exercise all powers and discretions and to do all acts and things as may be required or necessary to carry out and give effect to the provisions of the Agreement.  Section 29.01 facilitates para 1.03(3).

   …

   I do not accept the Applicant's submission to the effect that utilising section 29.01 in order to prevent the determination of the rights of occupancy by effluxion of time means that s 29.01 is being used to validate gaps retrospectively.  The extension of a period of occupancy pursuant to s 29.01 has the effect that there was never any gap.  The extension removes, albeit retrospectively, any gap.  It does not validate anything.  It is the clear expressed intention of s 29.01 that it can have retrospective effect.  I do not agree that paragraph 3.09(b) has the effect that after the date of expiry of an occupancy period has passed, s 29.01 cannot have application because, due to the right of occupancy being determined immediately after that date of expiry, the provisions of s 29.01 have no subject matter to work on.  The subject matter of 29.01 is a period of time.  A right of occupancy is not a subject matter of s 29.01.  The exercise by the Minister of the discretion under s 29.01 does not of itself renew an expired right of occupancy.  It does not create a new right of occupancy.  What it does, where the period or date in respect of which the Minister exercises the discretion has expired or passed is to, in effect, replace the time of that expiry or the passed date with a new and later one nominated by the Minister.

3. For the purposes of conclusion 2 (above), Warden Calder (see [196] ‑ [198]) distinguished the decision in Associated Minerals Pty Ltd v NSW Rutile Mining Company Pty Ltd [1962] ALR 236; (1961) 35 ALJR 296. In Associated Minerals a majority held that a three month dredging lease under the Mining Act 1906 (NSW) could not be renewed after the expiry of the three months, even though the application for renewal was made within the three months. Warden Calder referred (at [196]) in particular to the following passage in the reasons of the majority (Dixon CJ, Kitto, Taylor and Menzies JJ):

   What is of prime importance is that the relevant provisions as a whole point towards continuity so that a lease and its renewal or renewals can be treated as one extended term.  The word 'renewed' itself suggests the same thing, and we think the words of Lindley LJ in R v Licensing Justices of Crewkerne (1888), 21 QBD 85, at p 87, quoted by Myers J are pertinent: ‑ 'What is the meaning of applying for a renewal of a licence?  It can only mean that the licence holder is applying to renew that which is in existence and is on the point of expiring.'  This construction accords with what seems to be the plan of the Act that, upon the expiration of an original or a renewed term, the lease is at an end and others have or can acquire rights that the existence of a lease would preclude.  For instance, the owner holds his land free from the lease and any person seeking a lease may take steps to get a lease that the continued existence of another lease would prevent.  Neither a gap between the original term and the renewed term, nor a renewed term dating back to the expiration of the original term, coupled in either case with the termination or the destruction ab initio of rights acquired in the meantime, seem to have been within the contemplation of the legislature (298).

4. Warden Calder also referred (at [197]) to the dissent of Windeyer J, which was an apparent reference to the following passages in his Honour's reasons (299, 300):

   Regulation 117A [under the Mining Act 1906 (NSW)] provides that an application for renewal of a lease shall be lodged with the Under-Secretary for Mines prior to the date of expiration of such lease. And, as the Governor must consent to a renewal and also approve the rent, royalties and other conditions of the renewal, it is obvious that, if applications can lawfully be made at any time up till the expiry of a term, the decision of the Governor-in-Council on these matters must often not be given until after the expiry of a term.

   …

   This requirement that an application for renewal must be made before or at the expiry of an existing term simply accords with general principle:  In R v Licensing Justices of Crewkerne (1888), 21 QBD 85, at p 87, where Lindley LJ said of the meaning of 'applying for a renewal of a licence':  'It can only mean that the licence holder is applying to renew that which is in existence and is on the point of expiring.'  That requirement was met here.  It may be that the Act contemplates that upon a renewal the term granted will run from the date of expiry of the existing term.  But that does not mean that the grant of a term to commence as of that date may not be made thereafter.  A lease operates as a demise prospectively and not retrospectively, but the term of a lease is often expressed to commence from a day that is past, and it is then computed accordingly:  [citations omitted] … As the Act was renewal might be had of right.  Now the Governor's consent is necessary.  But when the Act says that the lease may be renewed it still means I think may be renewed by the lessee: [citations omitted] …

5. In Warden Calder's opinion [198]:

   [T]he 'plan' of the State Agreement, evidenced in part by the provisions that I have previously discussed, is one such as was contemplated by Windeyer J.  For reasons that I have expressed, I consider that the contemplation of the State Agreement is not that paragraph 3.09(b) will result in unavoidable determination of the rights of occupancy in circumstances where an application for renewal has been made in time but administrative procedure necessary for the determination of the application have not been completed prior to the expiration of the current occupancy period.  In any event, I consider that s 29.01, evidences an intention that is entirely consistent with the views expressed by Windeyer J.

6. Also for the purposes of conclusion 2 (above), Warden Calder distinguished (see [199]) Commonwealth v Antonio Giorgio Pty Ltd (1986) 67 ALR 244; (1986) 12 FCR 51 where a licensee with a licence for 15 years to remove sand, gravel and rock from certain land was given 'the right by giving six months notice in writing to the Licensor of its intention, to exercise the right to renew this Agreement for a further term of Fifteen years' (245). The licensee gave what it submitted was such a notice even although the notice was less than six months before the expiry of the 15 year term. The licensee submitted that the notice was a proper exercise of the right to renew as 'there was no requirement that the period of six months' notice should fall completely within the period of the licence' (251). Warden Calder referred ([199]) to the rejection of the latter submission by the Full Court of the Federal Court (Fisher, Gallop and Neaves JJ) on the basis that the effect of it would be that the licence would terminate on a date following which it would again become operative commencing six months after the date of giving notice: see (251). Warden Calder quoted (at [199]) the following passage from the decision, to which I add the citation he omitted:

   A construction which permits such a hiatus is inconsistent with the element of continuity between the original and the further term which is implicit in the notion of renewal to which cl 18 is directed:  Associated Minerals Pty ltd v NSW Rutile Mining Co Pty Ltd (1961) 35 ALJR 296 at 298. Such a construction should not be adopted unless the language is compelling. In our opinion it cannot reasonably be thought that such a result would have been in the contemplation of the parties when the agreement was negotiated.

7. Warden Calder referred to his understanding of Giorgio that Giorgio's purported notice renewal was out of time and went on [199]:

   The FOI Documents produced by the Applicant show that in every case except for the renewal requests dated 14 October 1976 and 16 October 1985, the Applicants' renewal applications were received before expiry of the then current occupancy period.  It is unclear whether or not the application dated 6 October 1980 was received before the expiry date.  It is also unclear from the FOI Documents when the application dated 5 September 1984 was received.  In each of those four cases, however, the relevant documentation expressly refers to clause 29.01 and, in every case, the State Agreement Minister and the Minister for Mines was the same person.  In those cases I proceed on the basis that it can and should be taken that the State Agreement Minister exercised the powers given to the Minister by s 29.01 and extended where necessary every relevant period specified in s 3.06.  Proceeding on that basis, the significant difference between Giorgio's circumstances and those of the Joint Venturers is that Giorgio's renewal notice was out of time whereas, taking into account s 29.01 where appropriate, none of the Objectors' renewal applications were made out of time.  The relatively long period of notice required in Giorgio's case is another distinguishing factor.  In addition, it appears that there was no provision in the Giorgio licence agreement for the notice period to be extended.  In my opinion, s 29.01 is intended to permit the Minister to extend every period that is relevant to a renewal application in order to prevent there being any hiatus.

The present proceedings

1. By notice of originating motion for an order nisi for a writ of certiorari dated and filed 2 December 2009 (the notice of originating motion) Cazaly commenced the present proceedings.  The notice of originating motion was principally supported by an affidavit of Henna Taneja sworn 2 December 2009, in three volumes (the Taneja affidavit).

2. By notice of motion dated 3 February 2010 the State applied to be joined as a respondent to the proceedings (the State's application to be joined).

3. The notice of originating motion sets out at [11] the following grounds for the issue of the writ of certiorari:

   11.1the Warden erred in holding that an exercise of power under s29.01 of the State Agreement can retrospectively revive a Right of Occupancy which has previously terminated under s3.09 of the State Agreement in that:

   11.1.1once the Right of Occupancy has terminated under s3.09 of the State Agreement, there is no subject matter for s29.01 to operate upon;

   11.1.2a late renewal of the Rights of Occupancy would involve a fresh grant of the Rights of Occupancy which was not possible as the power to grant Rights of Occupancy in section 276 was repealed when the Mining Act1978 (WA) came into force;

   11.1.3the Warden's construction of s29.01 of the State Agreement:

   (a)gave no effect to s3.09 of the State Agreement;

   (b)was based on the dissenting judgement of Windeyer J in Associated Minerals Pty Ltd v NSW Rutile (1961) 35 ALJR 296 which ought to be distinguished for the reasons referred to in paragraph 11.1.2 above and for those reasons, the Warden ought to have followed the decision of the majority; and

   (c)was based upon an interpretation of the objectives of the State Agreement which failed to take into account that the State Agreement contemplated that the Rights of Occupancy would only be in existence for between 1 and 5 years until the Rhodes Ridge JV was granted a mineral lease in respect of some of the land the subject of the Rights of Occupancy;

   11.2the Warden erred in that the Warden failed to give effect to the distinction between:

   11.2.1a decision to vary, waive or extend the maximum 5 year period prescribed in s3.06 of the State Agreement in which the Rights of Occupancy can be renewed; and

   11.2.2a decision to renew the Rights of Occupancy;

   and thereby failed to hold that both decisions were required in order to validly renew the Rights of Occupancy

   11.3the Warden erred in holding that the general power conferred by s29.01 of the State Agreement upon the Minister administering the State Agreement to extend periods of time could be exercised to extend the 5 year maximum period prescribed in s3.06 of the State Agreement whereas the operation of s29.01 is excluded by the express provision requiring the State to agree to waive the maximum period by the agreement of the State which is contained in s3.06 of the State Agreement;

   11.4having held that the power conferred by s29.01 of the State Agreement could be exercised to extend the 5 year maximum period prescribed in s3.06 of the State Agreement, the Warden erred in that either:

   11.4.1the Warden held that the general power conferred by s29.01 of the State Agreement upon the Minister administering the State Agreement to extend periods of time could also operate to effect an actual renewal of the Rights of Occupancy whereas:

   (a)the operation of s29.01 is excluded by s3.06 of the State Agreement which provides that the Minister for Mines (as opposed to the Minister administering the State Agreement) must renew the Rights of Occupancy; and

   (b)the renewal of the Right of Occupancy (which is a right of access to land which has an existence independent of the State Agreement) does not involve an extension of a period referred to in the State Agreement and therefore cannot occur be an exercise of power under s29.01 of the State Agreement; or

   11.4.2the Warden concluded that Rights of Occupancy had been renewed without identifying any relevant decision by the Minister for Mines to renew the Rights of Occupancy pursuant to s3.06 of the State Agreement prior to the termination of the Rights of Occupancy under s3.09 of the State Agreement.

The law applicable to the issue of a writ of certiorari

1. Here I consider on what bases a writ of certiorari may issue in respect of a decision by a Mining Warden under the 1978 Act in respect of an objection to the grant of an exploration licence under that Act; and the test for whether or not an order nisi for such a writ should be issued.

2. As to the bases for the issue of a writ of certiorari in a case like this one, I take the law to be as stated in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179, 180 (Brennan, Deane, Gaudron, Toohey & McHugh JJ). As stated there, the law distinguishes between review for jurisdictional error by a writ of certiorari of a decision of a court of inferior jurisdiction, on the one hand, and of an administrative tribunal, on the other. Demonstrable mistake (180):

   [O]n the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error.

3. In the case of an administrative tribunal, by contrast, if it (179):

   [F]alls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

4. A decision by a Mining Warden on an objection to the grant of an exploration licence under the 1978 Act is not one in the exercise of the Warden's jurisdiction in the Warden's Court, but rather by the Warden acting as an administrative tribunal:  ReMinister for Mines, Fuel & Energy; Ex parte Trythall (1991) 7 WAR 375, 389 (Murray J), approved in Re Roberts SM; Ex Parte Burge [2003] WASCA 2 [38], [40] (Olsson AUJ, Anderson & Parker JJ concurring).

5. As to the proper test for the issue of an order nisi for a writ of certiorari, the applicable law appears to be well established in this State, although there has been some difference of opinion in this court as to some of the detail in its formulation.  See Talbot v Lane (1994) 14 WAR 120; (1994) A Crim R 115, 152 (Malcolm CJ), approving the passage in Inland Revenue Commissioners v National Federation of Self‑Employed and Small Businesses Ltd (Fleet Street Casuals Case) [1982] AC 617, 642 ‑ 644 (Lord Diplock); Cazaly Iron Ore Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282 [55] (Buss JA); Re Capobianco; Ex parte Castelli (Unreported, WASC, Library No 980567, 25 September 1998) 6 (Parker J); Re Matthews; Ex parte Mackenzie [2000] WASC 147 [8] ‑ [13] (Templeman J); Perpetual Trustees WA Ltd v City of Joondalup (Unreported, WASC, Library No 990195, 16 April 1999) 6 (McKechnie J); Re Anastas; Ex parte Welsby [2001] WASC 178 [17] (McLure J); and Civil Procedure in Western Australia [51.1.1] as at 2 November 2010.

6. I would summarise that law in the following propositions:

   1.The purpose of the procedure for the order nisi is to avoid the time of the court being wasted by misguided or trivial complaints of administrative error:  Talbot (152) (Malcolm CJ), quoting with approval Inland Revenue Commissioners (642 ‑ 644);

   2.The court will not go into the matter in any depth:  Talbot (152) (Malcolm CJ), quoting with approval Inland Revenue Commissioners (642 ‑ 644); however, matters involving some complexity may require more than a quick review:  Cazaly [55];

   3.The court's task is to determine whether the applicant has demonstrated an arguable case for the relief sought:  Talbot (152), quoting with approval Inland Revenue Commissioners (642 ‑ 644); Cazaly [55]; however,

   4.Two different formulations have been given of what constitutes an arguable case.  One formulation is that, unless relief is sought in respect of quasi-criminal proceedings, the case to be demonstrated is merely one capable of being argued, and it is not necessary to demonstrate that the case has some reasonable or real prospect of success:  Capobianco (6).  The other formulation is that an arguable case is one that is not merely capable of being argued, but one that is reasonably capable of being argued in the sense that it has an argument which has some prospect of success:  Perpetual Trustees (6);

   5.A number of judges of this court have stated a preference for the formulation in Capobianco (6) over that in Perpetual Trustees (6):  see Matthews [8] ‑ [13]; and see Aznavour Pty Ltd v City of Mandurah [2002] WASC 95 [7] (Roberts‑Smith J) and Re Patrick John Walker, Commissioner For Fair Trading; Ex Parte Fremantle Islamic Association Incorporated [2003] WASC 176 [1] ‑ [3] (Johnson J), both referring to Matthews; at the same time

   6.The view has been expressed that both of the formulations in 4 (above) set a very low threshold test, and it may be that the practical difference between them is more apparent than real:  Anastas [17].

7. 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.

8. I turn now to consider the case for the order nisi represented by the grounds in [11] of the notice of originating motion.

The case for the order nisi and my conclusion

1. 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.

2. 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.

3. 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.

4. The long term, being the period which began with the grant of the mineral lease following the acceptance of a proposal, was marked, as I understood senior counsel's submissions, by the lack of a provision for determination of the mineral lease like s 3.06 in fine or s 3.09 for determination of rights of occupancy.  Rather, for the long term, there was the provision for determination of the State Agreement itself, in s 26.01 in pt V, which might be compared with s 8.01 in pt II, for determination of the State Agreement before implementation of proposals.  Those determination provisions provide for determination on notice by the State: they were not self-executing.

5. As I understood the submissions of senior counsel, that distinction between the short term and the long term meant that Warden Calder's concern, resting on his view of the long term implications of the State Agreement, to construe s 29.01 so as to permit the avoidance of the effect of s 3.09, was misplaced.  Further, his conclusion that, once the State had agreed to permit a renewal beyond the fifth anniversary of the commencement date, s 3.06 would require the State to accede to a request for renewal within s 3.06 thereafter, was inconsistent with the distinction between the short term and the long term.  This inconsistency arose because that conclusion meant rights of occupancy could be renewed into the indefinite future, subject to determination of the State Agreement under s 8.01.

6. As I understood the submissions of senior counsel, 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 resting on the distinction between the short term and the long term meant that, once a right of occupancy had not been renewed within the period provided for by s 3.05 read with s 3.06, so that that right determined in accordance with s 3.09, then, notwithstanding s 25.01, s 29.01 could not apply to rights of occupancy except as an authority for a fresh grant of such rights.  In view of the language of s 29.01, which was concerned with extension of periods of time and variation of dates, not substantive rights, s 29.01 was insufficient for that purpose.  Nor, since the coming into force of the 1978 Act after such determination, was there any other statutory power sufficient for the purpose.  Thus, neither the majority opinion in Associated Minerals nor the opinion in Giorgio could be distinguished from this case by reference to s 29.01.  Warden Calder had erred in construing s 29.01 otherwise.  See ground [11.1].

7. As I understood the submissions of senior counsel, that construction of cl III of the State Agreement as a code so resting also meant that s 29.01 could not permit the extension of the five year maximum period prescribed in s 3.06, which had its own provision for such extension, the agreement of the State to an extension, in s 3.06, in fine.  Warden Calder had erred in construing s 29.01 otherwise.  See ground [11.3].

8. As I understood the submissions of senior counsel, that construction so resting further meant that, in view of s 3.06 on the renewing of rights of occupancy by the Minister for Mines, as well as on the language of s 29.01, which authorised the extension of periods of time and the variation of dates (and not the renewal of rights) by the State Agreement Minister, s 29.01 could not be construed so as to authorise the renewal of rights of occupancy by the extension of a period of time.  Warden Calder had erred in construing s 29.01 otherwise, or at least in not identifying a decision by the Minister of Mines to renew the rights of occupancy in each case.  See [11.2] and [11.4]. 

9. I should add that it is not altogether clear to me that Warden Calder erred in construing s 29.01 as contended for in grounds [11.2] and [11.4.1].  However, on the limited review appropriate to the issue of an order nisi, albeit in a case like this one which involved matters of some complexity and thus required more than a quick review, it seems to me to be arguable on the language used in Cazaly WAMW (2009) (see in particular [202]), that Warden Calder concluded that the exercise of the power in s 29.01 by the State Agreement Minister or by s 1.03(e) by the State was sufficient to effect a renewal of the right of occupancy.  Such an understanding of the Decision was arguable on either of the formulations of the requirement that the case for the order nisi be 'arguable' that I have referred to (see Anastas [17]).

10. Overall, I consider that the case for the issue of the order nisi advanced by Cazaly is sufficient on that review and either of those formulations for an order nisi to issue on the grounds described in the notice of originating motion.

Orders made

1. At the hearing of the application before me I ordered that:

   1.the order nisi sought in terms of the notice of originating motion should issue;

   2.that the order nisi together with the Taneja affidavit be served upon Warden Calder, upon Hamersley Resources as manager of the Rhodes Ridge Joint Venture, upon Wright and upon the State;

   3.that Hamersley Resources be joined as a party to the proceedings; and

   4.that the hearing of the State's application to be joined be adjourned to a day to be fixed by the Court of Appeal.