Regis Resources Limited v Cleary in Her Capacity as Mining Warden - [2024] WASC 427

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   REGIS RESOURCES LIMITED -v- CLEARY IN HER CAPACITY AS MINING WARDEN [2024] WASC 427
CORAM:   SOLOMON J
HEARD:   19 MARCH 2024
DELIVERED          :   19 NOVEMBER 2024
FILE NO:   CIV 1622 of 2023
BETWEEN:   REGIS RESOURCES LIMITED
Applicant
AND
THE HONOURABLE GENEVIEVE MARIE CLEARY IN HER CAPACITY AS MINING WARDEN
Respondent
WILLIAM ROBERT RICHMOND
Other Party

Catchwords:

Mining Act s 102 – proper construction – Whether Warden and Minister can have regard to conduct prior to grant of tenement – Whether declaration should be made – Objects of Mining Act – Relevance of applicant for exemption from expenditure circumventing objects of the Mining Act – Whether Warden erred in concluding that a positive finding is required that applicant did not circumvent objects of the Act before granting exemption from expenditure – Whether Warden afforded the applicant procedural fairness – Whether Warden's reasons were irrational or illogical

Legislation:

Mining Act 1978 (WA), s 57, s 102, s 111A, s 115A(4)

Result:

Ground 1 upheld
Grounds 2 and 3 rejected
No declaration made
Matter should be remitted back to the Warden

Category: B

Representation:

Counsel:

Applicant	:	S K Dharmananda SC & B Dalitz
Respondent	:	No appearance
Other Party	:	E M Heenan SC & J Winton

Solicitors:

Applicant	:	DLA Piper Australia - Perth
Respondent	:	State Solicitor's Office
Other Party	:	Kavenagh Legal

Cases referred to in decision:

Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Devant Pty Ltd v Minister for Mines (Unreported, Supreme Court of Western Australia, Kennedy, Pidgeon and Steytler JJ, 18 December 1996)
Haoma Mining NL v Tunza Holdings Pty Ltd [2006] WASCA 19; 31 WAR 270
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Jankovic v Minister for Imitation and Ethnic Affairs (1995) 56 FCR 474
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Medical Board of Australia v Arunkalaivanan [2023] WASCA 117
Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; 34 WAR 403
Regis Resources Limited v Richmond [2023] WAMW 5
Samad v District Court of NSW [2002] HCA 24
Siberia Mining Corporation Pty Ltd v O'Sullivan [2020] WASC 214
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
Thompson v Siberia Mining [2021] WASCA 115
Yarri Mining v Eagelfield Holdings [2010] WASCA 132; 41 WAR 134

SOLOMON J:

On 8 March 2023 (supplemented on 19 April 2023), the respondent in her capacity as Warden published reasons and made orders (Decision)[1] recommending to the minister (Minister) the refusal of the applicant's (Regis) applications for exemption from expenditure conditions under s 102 of the Mining Act 1978 (WA) (Act). In this proceeding, Regis seeks judicial review of the Decision, and an order quashing the recommendation of the learned Warden. Regis also seeks a declaration that the applicant's conduct prior to the grant of a tenement, to which s 57 and s 111A of the Act could apply, is not relevant to the Warden's function, nor the Minister's discretion to grant an exemption for that tenement under s 102 of the Act. There is no dispute that the Decision is amenable to judicial review on the grounds advanced.
[1] See Regis Resources Limited v Richmond [2023] WAMW 5.
References in these reasons to statutory provisions are references to the Act, unless otherwise indicated.
Regis is a publicly listed company on the Australian Stock Exchange and carries on business as a gold mining and exploration company.
In this application, the evidence was constituted by a single affidavit, being that of Louise Holland affirmed on 23 August 2023 (Holland Affidavit).

The original applications

Between 5 October 2020 and 1 July 2021 Regis applied under s 102(1) for a certificate of exemption from the prescribed expenditure conditions to be granted over 10 mining tenements, being a combination of exploration and prospecting licences. Each of the tenements was part of a group of tenements approved under s 115A(4) for combined exploration reports to be filed. The applications were made under s 102(2)(h) on the basis that the aggregate expenditure for the combined reporting tenements would satisfy the expenditure requirements had the aggregate expenditure been apportioned between the tenements in the group. It was agreed between the parties that the aggregate expenditure would in fact have satisfied the expenditure requirements had it been apportioned between the tenements in the group.
The applications for exemption were the subject of objection by the other party (Mr Richmond). Mr Richmond contended that even if the requirements of s 102(2)(h) were met, the exemptions should be refused. The relevant focus of Mr Richmond's position was his allegation that Regis had engaged in 'warehousing' of the tenements in a manner that was inconsistent with the underlying policy of the Act that land open for mining should be utilised. Mr Richmond alleged a course of conduct designed to retain control of tenements without carrying out exploration involving collusion with third parties, strategic surrenders and withdrawals of applications.
The learned Warden heard the applications on 23 May 2022 and on 8 March 2023 delivered the Decision recommending that the Minister refuse the applications, and brief supplementary reasons and orders on 19 April 2023.
To give adequate context to the Decision and the grounds of this application, it is necessary to summarise some aspects of the case presented to the learned Warden. The applications for exemption were initially each based upon each of the grounds in s 102(2)(a) ‑ (h) and upon s 102(3). The objections were initially cast in the broadest of terms: 'There is no valid reason why an exemption should be granted'. In due course, by the provision of particulars,[2] Regis refined its application to rely upon s 102(h). Mr Richmond further particularised his objection. By his provision of particulars,[3] Mr Richmond's objections included the following:
(1)Mr Richmond alleged that there was no evidence of any work having been undertaken on the land; and
(2)Mr Richmond did not admit that Regis had satisfied the requirements of s 102(h) (although at the hearing this was not contested). Mr Richmond asserted the application for exemption should nevertheless not be granted because Regis had enjoyed more than sufficient time to explore the land. Under the heading 'Warehousing of tenure', Mr Richmond provided details of various transactions and dealings in respect of the land the subject of the tenements. In light of this, Mr Richmond contended that an inference ought to be drawn that various entities had been holding the land through other tenements for Regis's benefit, thus in effect, allowing Regis to maintain its control over the land without meeting the expenditure requirements of the Act. Much of that detail concerned conduct prior to the grant to Regis of the tenements the subject of its applications for exemption.
[2] Holland Affidavit, LDH‑15, LDH‑16, LDH‑17.
[3] Holland Affidavit, LDH‑18, LDH‑19, LDH‑20.
Following the provision of Mr Richmond's particulars, in February 2022, Regis filed an interlocutory application before the Warden seeking a ruling, in effect, to exclude any evidence of conduct prior to the grant of the tenements the subject of the application for exemption.
On 28 April 2022 Regis filed its submissions in support of its applications for exemption. The submissions identified 12 broad 'issues', including the question raised by Regis's interlocutory application as to whether the Warden should refuse to hear from Mr Richmond any evidence relating to conduct before the grant of the relevant tenements. In its written submissions, Regis contended that on a proper construction of s 102 the Minister was not permitted to hear evidence or take account of conduct prior to the grant of the relevant tenement. Regis also submitted that once the Warden was satisfied that the requirements of s 102(h) had been met and the mandatory considerations referred to in s 102(4) did not justify refusal of the applications, the Minister was bound to grant the exemptions; once that point had been reached there was no discretion available to the Minister - 'the Minister's discretion has run out'.[4]
[4] Holland Affidavit, LDH-22 (Applicant’s Submissions and List of Authorities) [108] (page 138).
Mr Richmond filed written submissions dated 15 May 2022.[5] In those submissions, Mr Richmond identified the 'critical consideration in this case' as whether Regis had engaged in conduct designed to circumvent the statutory object that land which is not being actively mined be open for mining by others, sometimes referred to as the 'ground turnover principle'. Mr Richmond submitted that the learned Warden ought to infer that Regis had engaged in conduct designed to avoid carrying out exploration on the tenements while preventing the land from becoming available to them. The submissions explained the alleged conduct on which it relied, which involved in summary, collusion with one or more third parties. Following a surrender by Regis the third party would promptly apply for the land until the expiration of the statutory period during which Regis could not reapply for the land, following which Regis would apply for the land.
[5] Holland Affidavit, LDH-23.

The Decision

I shall first provide a broad overview of the Decision.
The learned Warden began by noting that the applications for exemption were made under s 102(2)(h) and that it was common cause that Regis had satisfied the requirements of s 102(2)(h). The learned Warden then explained that Mr Richmond objected to the exemptions on the basis that, both before and after the grant of the tenements, Regis had engaged in 'warehousing', a course of conduct which enabled Regis to retain the tenements without mining them.[6] Later in her Honour's reasons, she described warehousing as 'undertaking a series of steps through a succession of acquisitions, surrenders and under expenditure, and having others ensuring that during times within which it could not or was not willing to apply for tenements, no one else had the opportunity of doing so either'.[7] Mr Richmond contended that warehousing is contrary to the principles of the Act and a factor to which the Minister can have regard when considering an application for exemption. The Warden then noted Regis's position that warehousing is not a factor that can be considered in an application for exemption under s 102(2), or if it is, its weight ought not to lead to a refusal of the applications.
[6] Decision [3].
[7] Decision [113].
Following her introductory remarks, the learned Warden noted Regis's position that any evidence regarding Regis's activities on the land prior to the grant of the relevant tenements was irrelevant to the application for exemption under s 102. Regis objected in particular to evidence and submissions sought to be advanced by Mr Richmond of Regis's conduct which were alleged to amount to warehousing. The Warden recorded Regis's position that as s 102(2)(h) had been satisfied all that remained to consider were the matters referred to in s 102(4) and nothing further was permissible. Section 102(4) features prominently in the Decision. It provides as follows:
When consideration is given to an application for exemption regard shall be had to the current grounds upon which exemptions have been granted and to the work done and the money spent on the mining tenement by the holder thereof.
The Warden then noted Regis's position that even if the Warden was entitled to consider other matters, they could not include warehousing because that factor was irrelevant to the application, and in any event Regis had not had an adequate opportunity to respond to the allegations and would thus be denied procedural fairness if Mr Richmond's contentions were received. Regis further maintained that the evidence in any event was inadequate to establish there had been warehousing.
The learned Warden then observed that the parties' submissions raised further issues regarding the meaning and application of s 102(4) in respect of the evidence required to address the criteria referred to in that sub‑section and questions of evidentiary onus.
After setting out the relevant legislative regime in broad detail, the learned Warden then turned to the question of whether the factors identified in s 102(4) are exhaustive, thus rendering irrelevant any issues of warehousing that arise independently of the factors in s 102(4). The learned Warden's discussion of the issue included consideration of the decision in Haoma Mining NL v Tunza Holdings Pty Ltd.[8] After a lengthy discussion, the learned Warden concluded that the factors identified in s 102(4) are not exhaustive and that other factors may be considered.[9] In the context of that discussion the learned Warden identified a policy underlying the statutory regime in relation to exemptions:[10] to prevent the exemption process from being used to thwart the principle that land should be mined or open for mining. In that same context the learned Warden also appeared to conclude that warehousing activity is inconsistent with, or 'in contravention' of, the 'principles of the Act' and is therefore relevant to 'the Minister's consideration under s 102(4)'.[11] The learned Warden reiterated that point,[12] and expressed the point elsewhere in her reasons as follows:[13]
[O]ne of the policies behind s 102(4) is that an exemption should not be granted if the exemption process is being used to either circumvent the policy or that it signifies that the policy is being circumvented that those who hold tenements must be willing and able to explore or mine that tenement within a reasonable time frame, or release the tenement so that another has that opportunity.
[8] Haoma Mining NL v Tunza Holdings Pty Ltd [2006] WASCA 19; 31 WAR 270 (Haoma).
[9] Decision [96].
[10] Decision [60].
[11] Decision [113].
[12] Decision [113].
[13] Decision [134].
Having concluded that the issue of warehousing was relevant to the Minister's consideration under s 102(4),[14] the learned Warden went on to consider whether the evidence sought to be advanced by the objector was relevant. In that context the learned Warden turned to consider the evidence. The learned Warden observed that she was being asked to infer as more probable than not, that Regis had been involved in warehousing 'in contravention of the principles of the Act'.[15] Given the adverse consequences of such an inference the learned Warden accepted that she had to be satisfied to a high standard.
[14] Decision [113].
[15] Decision [118].
The learned Warden then went through the evidence. This was based on a Statement of Agreed Facts and four affidavits filed on behalf of Mr Richmond. The learned Warden set out and considered the evidence in significant detail and recited the inferences which Mr Richmond urged her Honour to draw from the evidence in respect of each tenement.
The learned Warden concluded that the evidence related to a relevant consideration, being whether Regis was using the exemption process to circumvent an underlying policy of s 102(4) as set out at [13] above. The learned Warden was therefore satisfied that the evidence was relevant and admissible.[16]
[16] Decision [136].
Having determined that the evidence of alleged warehousing was admissible, the learned Warden then addressed Regis's objection to the evidence on the basis of unfairness arising from the lack of notice and the lateness of the evidence. The learned Warden concluded that Regis was on notice that the relevant matters may be raised in evidence and there was accordingly no denial of procedural fairness.[17]
[17] Decision [148] ‑ [149].
The learned Warden then turned to a consideration of the construction and operation of s 102(4). As set out above that sub‑section provides that when considering an exemption application, regard shall be had to two matters:
(1)the current grounds upon which exemptions have been granted; and
(2)the work done and the money spent on the mining tenement by the tenement holder. The learned Warden referred to these as the 'mandatory considerations'.
The learned Warden first considered whether the failure by the applicant or the objector to call evidence in respect of the mandatory considerations rendered invalid (respectively) the application or the objection. Her Honour concluded that it did not.[18] The learned Warden then went on to consider issues of how the Warden may address the mandatory considerations in the absence of evidence provided by the applicant or objector, and where the onus lies in relation to the mandatory considerations. In that context the learned Warden reasoned that where an applicant does not adduce evidence in relation to the mandatory considerations, the Warden and the Minister are entitled to conclude that any such evidence would have attracted 'negative or at least neutral weight'.[19] The learned Warden then discussed the applicability of the rule in Jones v Dunkel.[20]
[18] Decision [154].
[19] Decision [172].
[20] Jones v Dunkel [1959] HCA 8; 101 CLR 298.
There then follows a passage that appears to be designed to draw together the threads of the learned Warden's reasoning in relation to various matters: the breadth of factors that may be taken into account on an application for exemption; the underlying policy of the Act; the mandatory considerations; and the drawing of inferences. Her Honour made the following conclusionary remarks:[21]
170.[T]he factors to be considered are mandatory, and therefore Regis was on notice that they would be considered, and the objector made it clear, as I have found, that 'warehousing' was to be a live issue in the hearing of the applications, and the mandatory factors have relevance to the principles of the Act in that regard.
171.Given the principles of the Act, and the importance of the principle that those who do not use their tenements should give way to someone who will, the self‑policing nature of the regime, the construction of s 102 and the mandatory factors, I am of the view that there must be a positive finding of the Minister that the applicant for an exemption is not circumventing the principles of the Act before the exemption can be granted. That positive finding may come from as little as there being no adverse suggestion either from the mandatory factors or other evidence or factors.
172.Needing a positive finding, a finding that evidence was not elicited in answer to the fundamental principles of the Act when it easily could have been, is a finding that that evidence did not assist the applicant's case. Such a finding, in the present circumstances, does lead to a negative finding, that is, the absence of that evidence means positive weight cannot be given to that factor, and therefore that weighs against the exemption being granted.
173.In addition, in the present case, as I have said, the allegation against the applicant is one of using other entities to continue a long‑held connection with the tenements and ensure the tenements are returned to Regis after the law‑imposed hiatus', despite the number of sections of the Act designed to prohibit that occurring. The absence of evidence in relation to the mandatory factors, which are also designed to ensure those principles are not being circumvented, makes it easier to infer that the applicant was engaged in circumventing the principles of the Act, and adds weight to a finding against the applicant's application for exemption. (emphasis added)
[21] Decision [170] ‑ [173]. There is an error in the paragraph numbering in the Decision. After [176] the paragraphs continue from [167]. There are therefore two sets of [170] ‑ [173]. The paragraphs set out here appear in the second set.

The learned Warden then set out a summary of her conclusions in relation to the construction and operation of the statutory provisions.[22] Her Honour then provided a summary of the factors relied upon by Mr Richmond in his allegation of warehousing.
[22] Decision [178].
The learned Warden then drew her conclusions as follows:[23]
[23] Decision [181] ‑ [190].
181.[T]here are a number of matters in the present case which … in my view infer a strong connection, and therefore knowledge being shared between the entities, particularly when those individual pieces of evidence are viewed together:
a.The timings between the applications and marking out or applications,
b.The applications being after surrenders, many surrenders being very close to the natural expiry, and therefore most likely unexpected, and being too many to be a coincidence, and
c.The withdrawals, transfers or abandonment of the applied for tenements once Regis had its tenement, or was able to apply to amalgamate.
182. The inferences available from those factors is strengthened by the evidence about Mr Miasi, and the failure of Regis to call evidence relevant to the mandatory factors under s 102(4), and I am satisfied that that inference of connection, such that knowledge is being shared, is strongly the more probable inference in this case.
183.The presence of that strong inference, and the pattern that emerges from the dealings of Golden Pig also support and strengthen the inference that Regis had similar arrangements with Duketon, Aurora Gold and Delta Gold.
184.As acknowledged, the many transfers, share arrangements, heads of agreement, conversions and amalgamations are of themselves legitimate methods of dealing in tenements and in my view those dealings alone in this matter would not have amounted to a finding that Regis has had the long‑term benefit of the tenements such that it was circumventing the principles of the Act, or attracted weight against grant. However, in conjunction with the other relevant factors I have identified, the fact that Regis has had the benefit of access to or ownership of much of the land that relates to the current tenements for many years adds weight to the inference that by the arrangements with Aurora and Golden Pig, Regis are attempting to circumvent the principles of the Act, both by its applications for exemption from expenditure and otherwise.
185.Similarly, the various shapes, sizes and types of licenses applied for and granted over the years no doubt could be seen as having practical and legal utility, however, the complex forms of some of the tenements would make, in my view, attempts to apply for that ground by other parties unattractive. By applying in varying boundaries of tenement, the applicants have nevertheless ensured that all of the areas of the tenements have effectively been bound up in the application process which would dissuade anyone else from applying and becoming involved in multiple applications on foot for various areas around, on, or transecting with, the relevant block. and the history of such applications in the present case those tenants has added weight to the inference that by the arrangements with Aurora and Golden Pig Regis are attempting to circumvent the principles of the Act and maintain the tenements without working them.
186.The applicant has not put on evidence in contradiction of that allegation. The applicant has put on no evidence that it has used in any way the tenements, other than the agreed facts that they are part of combined reporting groups where there has been adequate expenditure in total. The lack of evidence of work done on or use of the individual tenements combines with the other factors to support an inference that the applicant has been unwilling to explore or mine those tenements within the requisite, or reasonable, time frame. That in turn leads to a strong probability the inference that the applicant is using the mining regime to circumvent the principles of the Act.
187.I am therefore satisfied that that those arrangements which are in contravention of the principles of the Act are, from the circumstances raised, a far more probable inference in favour of what is alleged, and when considering the policy considerations under s 102(4) of the Act, this weighs against the applicant being granted the exemptions, despite the fact that the reasons for the exemptions have been made out under s 102(2)(h).
188.I am also satisfied from the factors I have just summarised that even where there were no such a1Tangements on the tenements, the need for an exemption from expenditure more probably infers a lack of willingness to explore or mine the tenements within a reasonable timeframe and when considering the policy considerations under s 102(4) of the Act, this weighs against the applicant being granted the exemptions, despite the fact that the reasons for the exemptions have been made out under s 102(2)(h).
189.The factors that weigh against grant, or in favour of refusal, far outweigh the factors I have identified that are in favour or neutral of grant.
190.I therefore recommend that the applications for exemption be refused.

Regis's grounds and assertions of error

In its application Regis alleges error in the learned Warden's decision. The application is based on three grounds.
The first ground (Ground 1) alleges error in the proper construction of s 102 in [171] of the Decision set out at [24] above. In particular, Regis alleges error in the learned Warden's conclusion that before an exemption can be granted, there must be a positive finding of the Minister that the application for an exemption is not circumventing the principles of the Act.
The second ground (Ground 2) alleges invalidity by reason of a denial of procedural fairness. That is alleged to arise from the learned Warden's finding at [185] of the Decision set out at [26] above that Regis applied for complex forms of tenements to make the ground unattractive to other parties in circumstances where the parties did not raise, and the Warden did not notify Regis, of the proposed finding and it was not obviously open on the evidence.
The third ground (Ground 3) alleges, in effect, that the inferences drawn by the learned Warden in respect of warehousing by Regis, were illogical and unreasonable and were irrational or lacking an intelligible basis.
Regis sought the following relief:
(1)to have the learned Warden's decision quashed;
(2)a declaration that the learned Warden's decision is invalid and of no force and effect; and
(3)a declaration that any conduct by an applicant for exemption other than fraud prior to the grant of the tenement is not relevant to the Warden's function or the Minister's discretion under s 102.

Haoma and Devant

Before turning to the detail of the declaratory relief and the grounds of error, I observe that the learned Warden discussed at length and placed considerable emphasis on the reasons of Steytler P in two appellate decisions; Haoma and Devant v Minister of Mines.[24] Regis submitted that the learned Warden's reason over‑emphasised those appellate decisions, and indeed inappropriately elevated them in a manner that gave them the status of a statutory provision. It is convenient therefore to consider briefly the Haoma and Devant decisions.
[24] Devant Pty Ltd v Minister for Mines (Unreported, Supreme Court of Western Australia, Kennedy, Pidgeon and Steytler JJ, 18 December 1996) (Devant).
In Haoma the Court of Appeal dealt relevantly with applications by Haoma Mining NL for exemption from expenditure for various prospecting licences. The court was concerned with the proper construction of s 102(4) and in particular the meaning of the words 'to the current grounds upon which exemptions have been granted'. The court held that the phrase should be read as requiring that regard be had to those of the current grounds relied upon for exemption as have previously resulted in the grant of an exemption or exemptions in respect of the tenement under consideration.
In the course of his Honour's reasons, Steytler P also observed that in exercising the wide discretion under s 102:
(1)previous shortfalls in meeting prescribed expenditure can, (and in some circumstances, must) be taken into account;
(2)the fact that s 102(4) requires that consideration must be given to the current grounds upon which exemptions have previously been granted, does not mean that the decision‑maker may not have regard to other matters;
(3)those other matters may include previous failures to meet prescribed expenditure which were the subject of certificates of exemption if the previous failures are reasonably considered to be relevant to the question whether a further certificate of exemption should issue;
(4)those other matters might also include repeated prior applications for exemption, even if successful, which may suggest an unwillingness or inability to work the tenement within a reasonable timeframe;
(5)it was open to the Warden in considering whether or not there was 'any other reason' under s 102(3) for the grant of an exemption, to take account of a past failure to progress work on the tenements even though there had been exemptions from expenditure in those prior periods.[25]
[25] It should be noted that Steytler P did not consider the discretion under 102(3) was limited to 'granting' as opposed to rejecting.
In Devant the court was concerned with the Minister's refusal to grant a prospecting licence under s 111A. That section provides that the Minister may refuse an application for a mining tenement if the Minister is satisfied on reasonable grounds in the public interest that the application should not be granted. Section 45(2) provides that where a prospecting licence is surrendered, forfeited, or expires, the land shall not be applied for again by or on behalf of the holder of the original prospecting licence for three months.
A Mr Chitty previously held prospecting licenses over certain land. Mr Chitty was one of two directors and the principal shareholder of Devant Pty Ltd. Mr Chitty surrendered the prosecting licences. Within 30 minutes Devant applied for prospecting licences over the same land. The Minister refused Devant's applications under s 111A on the basis that an underlying principle of the Act is to provide for 'ground turnover' such that ground is explored and either converted to a mining lease or surrendered. The circumstances indicated that the surrender and the application had been done in a collusive manner between Mr Chitty and Devant thereby circumventing that principle of the Act.
Devant appealed the decision, asserting inter alia that there was no evidence of collusion between Mr Chitty and Devant, and that the Minister had taken account of irrelevant considerations, namely, that Mr Chitty was a director of Devant, that Devant lodged its application 30 minutes after Mr Chitty's surrender and that the applications were made in a collusive manner to circumvent that operation of s 45(2). The court rejected the appeal, observing that there was ample evidence of collusion between Mr Chitty and Devant comprised of Devant's knowledge that Mr Chitty was going to surrender the tenements and Devant's application immediately thereafter at a time when Mr Chitty was a director and the principal shareholder of Devant. Steytler P also held that the considerations taken into account by the Minister were relevant and appropriate.

The proposed declaration and consideration of pre‑grant conduct

In its submissions, Regis did not deal first with the grounds upon which it said the learned Warden's decision should be quashed. Rather, Regis dealt first with the basis for the declaration it sought that any conduct by an applicant for exemption other than fraud prior to the grant of the tenement is not relevant to the Warden's function or the Minister's discretion under s 102. I shall therefore turn to that first.
Regis observed that the learned Warden's recommendations were largely based on findings relating to Regis's conduct prior to the grant of the relevant tenements. Regis submitted that pre‑grant conduct cannot be relevant to the exercise of the statutory discretion in relation to an application for exemption. Although it was not one of the three express grounds, Regis in effect contended that the learned Warden erred by taking account of pre‑grant conduct in her Honour's conclusion to recommend refusal of the application. Regis's position was that the issue reflects an important matter of principle that this court should clarify by making the declaration sought. In support of that contention, Regis pointed to a number of matters which I summarise below.
In considering an application for exemption that satisfied s 102(2)(h), Regis accepted that the Warden's discretion was not limited to the matters identified in s 102(4). However, Regis did not accept that Haoma, properly understood, stood as authority for the proposition that the Warden had the ability to take account of the breadth of factors which the learned Warden had regard to in the Decision. Regis submitted that on a proper construction of s 102 the factors relevant to the discretion must be of a similar character and in respect of the same time frame as the factors in s 102(4).[26] Specifically, senior counsel for Regis explained in oral submissions that while the Warden's discretion was not limited to the factors in s 102(4) it 'did not open the door to vague matters about policy and warehousing and such like'.[27]
[26] Applicant's Outline of Submissions [50].
[27] Ts 24.
Senior counsel for Regis also pointed to the definite article in the text of s 102(4) 'regard shall be had … to the work done and the money spent on the mining tenement' (emphasis added). The submission appeared to be that conduct prior to the grant of the tenement or on a predecessor tenement could not have been work or expenditure in respect of 'the tenement'.
Regis further submitted that a tenement holder's conduct prior to the grant of a tenement is not rationally capable of affecting an assessment of the holder's future treatment of that tenement following the grant.[28] The only exception may be fraud as, Regis submitted, 'fraud unravels everything'. Regis's position was that conduct prior to the grant of a tenement might rationally affect an assessment in respect of the grant of the tenement. But once the grant of a tenement is made, conduct prior to the grant cannot rationally be relevant to an application for exemption under s 102. Only conduct following the grant can rationally inform the decision maker about the holder's unwillingness or inability to undertake work on the tenement. In that context, Regis pointed also to s 42(2) concerning the determination of an application for a prospecting licence,[29] to s 59(3) concerning the determination of an application for an exploration licence,[30] and to s 75(6) concerning the determination of an application for a mining lease.[31] Those provisions expressly link the grant of the tenement to the mining registrar's satisfaction that the applicant 'has complied in all respects with the provisions' of the Act. Those provisions necessarily refer to conduct prior to the grant. Regis observed that there is no equivalent provision in respect of an application for exemption from expenditure. The submission appeared to be that this serves as a textual indicator that in respect of applications for exemption from expenditure, conduct prior to the grant of the tenement is not relevant.
[28] Applicant's Outline of Submissions [49], [51].
[29] Ts 7.
[30] Ts 13.
[31] Ts 14.
Regis further submitted that if it were permissible to consider conduct prior to the grant of a tenement in respect of an application for exemption under s 102, it would reduce security of title, and thus discourage expenditure because of the risk of losing the tenement due to pre‑grant conduct.
In oral submissions, senior counsel for Regis also directed attention to the reasons of McLure P (with whom Owen and Buss JJA agreed) in Yarri Mining v Eagelfield Holdings.[32] In that matter, an application for an exploration licence was made in breach of the prohibition of s 69 which prohibits, within a specified time, the marking out of land previously surrendered or forfeited. The court held that notwithstanding the contravention of s 69 the Minister nevertheless had the power to grant the application for an exploration licence. Regis submitted that the decision was authority for the proposition that conduct prior to the grant does not affect the validity of the tenement and that the same logic must apply to other provisions. The submission appeared to be that on that basis conduct prior to the grant of the tenement is not relevant to exercise of the statutory power to grant an exemption under s 102.[33]
[32] Yarri Mining v Eagelfield Holdings [2010] WASCA 132; 41 WAR 134.
[33] Ts 11.
Regis also submitted that the wide discretion conferred by s 102 to grant the exemption is in respect of the grant of an exemption as opposed to the rejection of an application.[34] The submission appeared to be that the Warden and Minister's discretion in respect of the rejection of an application was narrower or more confined than the broad power to grant it.
[34] Applicant's Outline of Submissions [45].
In the course of argument Regis also directed criticism to the learned Warden's reference to Regis's 'contravention' of the 'principles of the Act'.[35] Regis submitted that those expressions reflected a misunderstanding of the Act and a misplaced reliance on the decision in Haoma.
[35] For example at Decision [118] and [187].
Senior counsel for Mr Richmond submitted there was some difficulty in the application for declaratory relief that stood independently of the grounds alleging error in the learned Warden's reasons. As I am not persuaded that the declaration sought should be made it is not necessary to address that issue.
Mr Richmond submitted that the learned Warden's consideration of Regis's conduct prior to the grant of the relevant tenements did not lie outside the limits of the matters which the Warden could take into account in the exercise of the Warden's discretion under s 102. Section 102(4) does not mandate the consideration of such matters, but that does not render consideration of those matters irrelevant or impermissible. Mr Richmond submitted that it was well‑established that there is an overarching object of the Act to encourage the utilisation of mining tenements and the Act embodies a system of self‑regulation within the industry to promote that object. The matters to which the learned Warden had regard, including the conduct that preceded the grant of the tenements were relevant to that object and were thus relevant to the exercise of the decision under s 102.
Senior counsel also drew support from the reasons of Steytler P in Devant where his Honour held that the Minister was correct to have taken account of the collusion and the circumvention of the object of the Act to provide for 'ground turnover' such that ground is explored and either converted to a mining lease or surrendered. Senior counsel for Mr Richmond readily accepted that Devant was a case concerning the grant of a tenement, not an application for exemption from expenditure. The statutory provisions in relation to conferral of the discretion to grant a tenement differed from the provision conferring the statutory power to grant an exemption under s 102. Nevertheless, senior counsel for Mr Richmond submitted that the conduct was relevant to the overarching object of the Act in both such applications. The Warden and the Minister are entitled to be concerned about the antecedents and character of the applicant and his or her capacity and willingness to meet obligations under the Act consistently with its underlying object. Such consideration cannot sensibly be limited to conduct following the grant or for that matter conduct in relation to that land.
Consideration of declaratory relief

The statutory framework in respect of an application for exemption under s 102 was set out by the court of Appeal in Thompson v Siberia Mining at [10] ‑ [18].[36] That overview need not be repeated. From that decision (and the authorities there cited), as well as from the Court of Appeal's decision in Re Minister for Resources: Ex parte Cazaly Iro Pty Ltd,[37] it may be said to be well‑established that:
(1)the primary object of the Act is to encourage and promote the prospecting and exploration for, and mining of, mineral deposits in the State;
(2)that primary object is sought to be carried into effect by making available tenements for prospecting, exploration and mining subject to stringent conditions such as with respect to expenditure and by providing that the holder of a mining tenement should carry out the relevant mining activity; and
(3)other objects of the Act include identifying circumstances in which a tenement holder will be permitted to hold a mining tenement without carrying out mining activity or giving the land up for others who wish to carry out such activity.
[36] Thompson v Siberia Mining [2021] WASCA 115.
[37] Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; 34 WAR 403.
In Haoma, Pullin JA observed in the context of a consideration of the statutory power under s 102:[38]
The intention of the legislature revealed by reading the Act as a whole is that persons who secure a mining tenement should carry out work on or in relation to them if they are to retain title. In the case of a prospecting licence, the persons holding them should expend money in relation to prospecting for minerals on the tenements.
[38] At [73].
The ultimate repository of power to grant a certificate of exemption under s 102 is the Minister. The function of the Warden is to hear any objection to the application and to provide a report to the Minister recommending or refusing the application and setting out reasons for that recommendation. The Minister is not bound by the Warden's recommendation.
As was explained in Re: Warden Boothman SM and in Re: Minister for Mines ex parte Peko Exploration Ltd and GHK Mining Pty Ltd,[39] the discretionary power conferred by s 102 is broad. Section 102(2) identifies various reasons that may justify the grant of a certificate of exemption. However, the statutory power is not confined to circumstances where those reasons may be satisfied. Under s 102(3) there is a power in the minster to grant the certificate for 'any other reason' that in the Minster's opinion may justify the exemption. Section 102(4) then identifies factors to which regard 'shall' be had. The language is mandatory. The combined effect of those provisions was neatly summarised in Haoma in the following terms [76]:
Section 102(2) sets out reasons which may result in the granting of a certificate of exemption. These all involve showing a state of affairs which exist at the time of the application. However, s 102(3) then confers a very broad discretion on the Minister to grant the application for exemption for reasons which are not amongst those set out in s 102(2) if in the opinion of the Minister the reason given 'is sufficient to justify such exemption'. When consideration is given to an application for a certificate of exemption, s 102(4) sets forth a relevant consideration which must be taken into account in the exercise of the discretion.
[39] (Full Court WA Supreme Court, unreported, lib No. 970613, CIV 1381/1997, delivered 14 November 1997).
Notwithstanding its breadth, the discretion conferred by s 102 is not untrammelled. It is necessarily confined by the matter, scope and purpose of the Act.[40] As noted above, the primary purpose or object of the Act is to encourage and promote the prospecting and exploration and that persons who secure a mining tenement should carry out work on or in relation to the tenement if they are to retain title. The parameters of the statutory discretion conferred by s 102 are to be understood in light of that object.
[40] See Siberia Mining Corporation Pty Ltd v O'Sullivan [2020] WASC 214[67], and the authorities cited at footnote 59 therein.
In my view, taking account of the broad power arising from the text of s 102 and the primary purpose of the Act, it is appropriate for the Warden and the Minister to have regard to conduct of an applicant that may bear upon the applicant's capacity or willingness to undertake expenditure and work on the tenement. There is nothing in the text or the objects of the Act that would mandate limiting that consideration to conduct following the grant of the tenement. On the contrary, both the unconstrained terms of the text of the statute and the well‑established objects suggest that a pre‑grant history of non‑compliance or collusive conduct to circumvent the Act's objects is a matter that the Warden and the Minister may appropriately take into account.
I do not accept that the textual indicators referred to by Regis or the decision in Yarri Mining v Eagelfield Holdings lead to a different conclusion. It may be accepted that the statutory power expressed in the provisions regarding the grant of tenements is cast in wider terms than s 102. However, there is nothing in the statutory text that renders impermissible the consideration of pre‑grant conduct. Nor do I accept that such conduct cannot be rationally connected with an assessment of an applicant's likely conduct following the grant of a tenement. I also do not accept that the ability to consider conduct prior to the grant of the tenement undermines the objects of the Act by discouraging expenditure because it would reduce a tenement holder's security of title. The statutory provisions reflect a balance in the objects of the Act, promoting the utilisation of land open for mining while providing reasonable opportunity to hold land in circumstances where work and expenditure can justifiably be excused for a finite period. That balance is not compromised by allowing the Warden and the Minister to have regard to the past conduct of an application for expenditure, whether that be before or after the grant of the tenement the subject of the application for exemption. In my view, the reasons of McLure P in Yarra Mining v Eaglefield Holdings do not serve to advance the construction pressed by Regis. The court in that matter was concerned with the impact on the validity of title where a tenement was granted following an application made in contravention of an express prohibition contained in the Act. The decision does not stand as general authority for the proposition that conduct prior to the grant must be disregarded in an application for exemption under s 102.
Regis submitted also that the reliance by the learned Warden on Haoma was misplaced because Haoma was not concerned with conduct prior to the grant of the tenement but rather was concerned with prior grants of certificates of exemption and prior expenditure on the granted tenement. Haoma did not therefore serve as authority for the proposition that the Warden may have regard to conduct prior to the grant of the tenement in the consideration of an application for exemption from expenditure. Regis contended that Devant was not appropriately relied upon by the learned Warden because it concerned consideration of the grant of a tenement, not the grant of a certificate of exemption from expenditure.
In my view the learned Warden did not err or misapply the decisions in Haoma and Devant. Rather I consider that those decisions, while not dealing precisely with the same issues, are consistent with the learned Warden's conclusion that s 102 does not proscribe consideration of an applicant's conduct prior to the grant of the tenement.
As to the learned Warden's references to contraventions of the 'principles' of the Act, it may be accepted that such terminology is apt to obscure or confuse. It is preferable in my view to adopt the language of Steytler J that the appropriate concern is the circumvention of the object or policy of the legislation rather than a contravention of its principles. I proceed on the basis that in substance that is what the learned Warden meant, and that this court should not be distracted by the possible infelicity of the Warden's nomenclature.
It follows that I do not accept Regis's construction that forms the basis of its application for declaratory relief and I would therefore not grant that relief.

Ground 1

By Ground 1 Regis contends that the learned Warden erred in the proper construction of the Act in her conclusion at [171] of the Decision that there must be a positive finding of the Minister that the applicant for an exemption is not circumventing the principles of the Act before the exemption can be granted.
Mr Richmond conceded that the Warden's words reflected error in the proper construction of s 102. Mr Richmond submitted that nevertheless the error did not vitiate the learned Warden's decision. This was broadly for three reasons.
First, the remarks were directed to the exercise of the power reposed in the Minister, not the function of recommendation exercised by the Warden. Second, the adoption by the learned Warden of the language of 'weight' in the very next paragraph of the Decision (at [172]), demonstrates that the learned Warden was not suggesting that the 'positive finding' was a precondition to the exercise of the statutory power, but rather merely a matter to be weighed in the exercise of the discretion.
Third and perhaps most significantly, Mr Richmond submitted that the error was not material because a careful reading of the learned Warden's decision discloses that the erroneous construction did not feature in the learned Warden's substantive decision making. Senior counsel for Mr Richmond explained that the remarks were contained in a section of the learned Warden's reasons which was directed to an analysis of the application of the rule in Jones v Dunkel and the drawing of inferences. It was submitted that that section of her Honour's reasons was concerned with a legal analysis of rules concerning the drawing of inferences. It was not directed to the application of the statutory provisions to any findings. In seeking to diminish the significance of the remarks and their impact on the Decision, senior counsel respectfully characterised that sub‑section of the reasons as the learned Warden having gone off 'on a bit of a diversion into the Jones v Dunkel analysis and onus'. Senior counsel observed that following the section dealing with the rule in Jones v Dunkel the next section was headed 'Summary regarding the evidence and the effect of the evidence and the recommendation'. That section began with a summary of the learned Warden's conclusions and then the conclusionary paragraphs referred to at [26] above. Senior counsel for Mr Richmond submitted that this latter section contained the learned Warden's substantive reasoning and he pointed to the fact that the erroneous construction was not referred to at all in that section.

Consideration of Ground 1

The remarks which included the learned Warden's erroneous construction are contained within the section under the major heading 'THE MANDATORY FACTORS IN S 102(4)'. The relevant paragraph is included in the sub‑section under the sub‑heading, 'The application of Jones v Dunkel in a case such as this'.
The concession by Mr Richmond that the learned Warden erred in her construction of the statute was properly made. The learned Warden's construction imposes an unjustified gloss on the statutory provisions and imposes a condition on the grant of an exemption that extends impermissibly beyond the statutory text.
Mr Richmond was correct to identify that the learned Warden's remarks were directed to the exercise of power by the Minister. In my view however that does not render the error inconsequential. The Warden is required to formulate a recommendation on the basis of a proper understanding and application of the Act. If the reasons for the recommendation reveal an error in the Warden's understanding of the exercise of the statutory power, the reasons cannot be redeemed by words that on their face direct the error to the exercise of the Minister's rather than the Warden's function. The process of considering the correct recommendation is to be undertaken on the basis of a correct understanding of the statutory function no less so than the exercise of power by the Minister.
Nor do I accept that the error is inconsequential because the paragraph following the remarks referred to the 'weighing' of the relevant finding in the exercise of the discretion rather than expressing it as a precondition to the exercise of power. It is, in my respectful view, far from clear that the learned Warden in that part of her reasoning, consciously adverted to the distinction between a factor to be weighed in the exercise of discretion on the one hand, and a precondition to its exercise on the other. Notwithstanding the references to 'weight', the remarks which embodied the error were expressed without qualification and in the language of a precondition. I do not consider that the subsequent use of the word 'weighing' is sufficient to mitigate the fairly unambiguous nature of the words containing the erroneous construction.
The balance of the submissions advanced by Mr Richmond in substance were directed to the materiality of the error, that is, whether the constructional error materially impacted on the learned Warden's ultimate recommendation to refuse the applications.
An orthodox formulation of the issue of materiality of error was expressed by the Full Court of the Federal Court in Jankovic v Minister for Immigration and Ethnic Affairs,[41] as follows:[42]
[I]t is not enough for an applicant to demonstrate that a tribunal has mis‑stated the law on a particular matter, if the misstatement could not have affected the tribunal's decision. An immaterial error does not vitiate the decision.
[41] Jankovic v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 474 (Jankovic).
[42] Jankovic, 477.
More recently, the impact of error and its materiality was considered by the High Court in Hossain v Minister forImmigration and Border Protection.[43] The court was concerned with the exercise of a statutory power in respect of which the relevant minister was required to meet a particular state of satisfaction. The plurality (Kiefel CJ, Gageler, Keane JJ) stated:[44]
Formation of the Minister's state of satisfaction or of non‑satisfaction is in each case conditioned by a requirement that the Minister or his or her delegate, or the Tribunal forming its own conclusion on review, must proceed reasonably and on a correct understanding and application of the applicable law.
[43] Hossain v MinisterforImmigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 (Hossain).
[44] Hossain [34].
As to the materiality of the error, the plurality explained:[45]
That a decision‑maker must proceed by reference to correct legal principles, correctly applied is an ordinarily (although not universally) implied condition of a statutory conferral of decision‑making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision‑making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non‑compliance.
Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of the possibility of a successful outcome, or where a decision‑maker failed to take into account a mandatory consideration which in all the circumstances was so insignificant that the failure to take it into account could not have materially affected the decision that was made.
…
Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision. (citations omitted)
[45] Hossain [29] ‑ [31].
Nettle J and Edelman J both considered there may be circumstances where the error will vitiate the decision even if it cannot be demonstrated that the absence of error may have led to a different outcome. Having reviewed the authorities, Edelman J drew the following conclusion:[46]
In summary, although the issue will always be one of construction of the express or implied terms of the statute, an error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome. There may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome. One circumstance, for reasons that could include respect for the dignity of the individual, may be an extreme case of denial of procedural fairness. Another may be the circumstance discussed by Nettle J, where a decision maker fails to exercise jurisdiction to decide a question according to the applicable criterion.
[46] Hossain [72].
The High Court revisited the issue in Nathanson v Minister for Home Affairs[47] in the context of error arising from the denial of procedural fairness. Referring to previous High Court authority, the plurality (Kiefel CJ, Keane and Gleeson JJ) said:[48]
It is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined . The burden falls on the plaintiff to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition. (citations omitted)
[47] Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 (Nathanson).
[48] Nathanson [32].
Edelman J repeated the sentiments he had expressed in Hossain, observing:[49]
There are other examples where … the jurisdictional error is so fundamental that … 'materiality' does not arise. These examples might include where there is an extreme denial of procedural fairness, a failure to exercise jurisdiction with respect to the correct criterion, or where the jurisdictional error is an erroneous denial, or mistaken assertion, of jurisdiction over the matter or an important part of it.
[49] Hossain [103].
The authorities establish that generally a court must be satisfied of the possibility of a different outcome. The threshold is not high. As Gageler J observed, establishing the threshold of materiality is not onerous.[50]
[50] Nathanson [47].
Turning to the reasons of the learned Warden, while accepting some force in the submissions advanced on behalf of Mr Richmond, I cannot be persuaded that there was no real or sensible possibility of a different outcome had the error not been made. As noted, senior counsel for Mr Richmond submitted that the learned Warden's remarks were contained in a section dealing with the rule in Jones v Dunkel and were not material to the substantive analysis leading to her Honour's conclusion. It may be that the relevant remarks were made in a section directed to an analysis of the rule in Jones v Dunkel. However, the paragraph was not limited to that analysis. The paragraph may well assume aspects of the rule in Jones v Dunkel discussed in prior paragraphs (although that itself is not clear). But to the extent that the paragraph relates to rule in Jones v Dunkel (if at all) it deploys those principles to reach conclusions about the construction of s 102 that sit independently of the rule in Jones v Dunkel. Nor can I be confident that the remarks embody an analysis (whether or not they are directed to the rule in Jones v Dunkel) that is not directly related to a consideration of Regis's application. The very next paragraph builds on the erroneous construction. It begins 'Needing a positive finding'. That is a direct reference to the learned Warden's remark about a 'positive finding' in [171] that lies at the nub of the erroneous construction. The paragraph then turns immediately to the lack of evidence which gave rise to the inference or 'negative finding' adverse to Regis and which is said to 'weigh against' the application.

In the next paragraph ([173]), that absence of evidence or negative finding is the very factor that weighs against the application. The erroneous construction requiring a 'positive finding' is deployed expressly to give significance to the absence of evidence and the 'negative finding'. From [178] the learned Warden sets out a summary of 'the evidence and the effect of the evidence and the recommendation'. While it may be accepted, as senior counsel for Mr Richmond pointed out, that the summary does not repeat the erroneous conduction, it is not possible to be confident of the impact that the erroneous construction had on the conclusions. Sub‑paragraph (i) of [178] refers to the 'lack of evidence on a mandatory factor' which may 'attract weight against the party who has decided not to adduce evidence'. That summary conclusion seems to reflect the outcome of [171] and [172], which appears to be (at least possibly) built upon the erroneous construction.
I accept that it may quite possibly be the case that the learned Warden would have drawn the same inferences or negative finding in the absence of the erroneous construction. But that is not the test. The reasoning in the Decision does not provide a basis to conclude that a different outcome was not a possibility. I therefore conclude that it is possible a different outcome may have been reached. The reasoning of Gleeson CJ and McHugh J at [46] in Samad v District Court of NSW is apt;[51] in the circumstances I cannot be persuaded that in the proper exercise of a discretion, there was only one possible outcome. Regis was and remains, entitled to have its case determined according to law.
[51] Samad v District Court of NSW [2002] HCA 24.
It follows in my view that the fairly low threshold of materiality is met and Ground 1 is made out. As Ground 1 has been made out, it will be necessary to make orders quashing the learned Warden's decision. It is therefore strictly unnecessary to consider the other grounds. However, as the parties have addressed the other grounds it is appropriate that I express my conclusions on those matters. In addition, as the other grounds agitate complaints of unfairness and irrationality in respect of the learned Warden, I consider it appropriate to state my view that in the circumstances I do not consider that Regis has in substance suffered any material unfairness or that the Decision is infected with any material degree of irrationality.

Ground 2

In Ground 2, Regis complains that it was denied procedural fairness. The complaint is directed to [185] of the Decision which is set out at [26] above. The learned Warden's conclusion included, in effect, that Regis's conduct to avoid the consequences of the legislation, included applications for tenements in various shapes, sizes and types of licences of a complexity that rendered the ground unattractive to other applicants thereby dissuading others from applying. Regis complains that this aspect of the learned Warden's findings did not arise in the course of the evidence or submissions in advance of, or at the hearing and was not one that could have been reasonably anticipated. Regis complains that it was thereby denied the opportunity to provide alternative explanations for the 'various shapes, sizes and types of licenses applied for'. Regis maintains that it could have explained why the forms of tenements were in fact not complex but rather an incident of the operation of the Act. It was accepted by Regis that it would not have adduced evidence of these matters. Rather, it was denied the opportunity to explain its position in submissions.
Regis submitted on that basis that it had not been afforded procedural fairness, and thereby 'one of the key findings that led [the Warden] to infer that Regis was circumventing the Act's principles and to recommend refusal might not have been made'.[52]
[52] Applicant's Outline of Submissions [75].
In oral submissions Regis also maintained that this 'key finding' necessarily encompassed a finding that Regis had applied for the tenements in various shapes, sizes and types as part of its deliberate and conscious strategy of circumventing the operation of the Act. Mr Richmond rejected that characterisation of the learned Warden's reasoning and submitted that on a fair and careful reading it is apparent that the learned Warden did not find this was a deliberate part of Regis's strategy. Rather, the learned Warden was simply referring to the consequential reality of Regis's conduct, and the disincentive to future applicants that the complexity of that reality presented.
In my view the learned Warden's reasoning leaves both interpretations available. It is not possible to reach a firm conclusion in that regard. However, what is plain is that a review of the material considered at the hearing establishes that no issue was raised either in the written or oral materials suggesting that any adverse inference could be drawn from the particular shapes, sizes and type of the tenements. I accept the submission made on behalf of Regis that the issue was not raised and could not reasonably have been anticipated. In that regard I do not accept that because Mr Richmond had put general 'warehousing' conduct in issue, Regis should have appreciated that this was a matter it ought to have addressed. In my view, an inference of circumventing the act by reference to the shape, size and type of the tenement was not a matter that Regis could reasonably have anticipated.

Consideration of Ground 2

There was no dispute that the Warden was required to afford Regis procedural fairness. Nor was there any dispute that the relevant principles were those set out by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.[53] In that decision the High Court cited with approval the following passages from the Full Court of the Federal Court's decision in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd,[54] which considered the duty of procedural fairness: [55]
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision‑maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision‑maker. It also extends to require the decision‑maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision‑maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision‑maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.[56] (emphasis added)
And:
It is a fundamental principle that where the rules of procedural fairness apply to a decision‑making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.[57] (emphasis added)
[53] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (SZBEL).
[54] Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone).
[55] SZBEL [29] ‑ [32].
[56] Alphaone, 591 ‑ 592.
[57] Alphaone, 590 ‑ 591.
I have set out above the recent observations of the High Court in relation to materiality, including the remarks of Edelman J which suggest that the threshold of materiality might be lower (or even non‑existent) in certain circumstances, such as particular denials of procedural fairness. Notwithstanding the low threshold, in my assessment of the reasoning in the Decision there is no real possibility that the learned Warden would have come to a different view even if Regis had been given the opportunity and had successfully explained through submissions why the forms of tenements were in fact not complex but rather an incident of the operation of the Act. In my view it is plain that the learned Warden's observations in this regard did not amount to a 'key finding' which led to the outcome as Regis submitted. The learned Warden had already come to a firm view that Regis had engaged in conduct designed to circumvent the objects of the Act so as to warrant the recommendation to refuse the applications. The learned Warden's comments regarding 'various shapes, sizes and types of licenses applied for' may not have been a mere afterthought, but read fairly in context they amounted to a supplementary observation to be added to an already firm and established conclusion. The threshold of materiality in my view is therefore not satisfied and I would not uphold Ground 2.

Ground 3

Ground 3 challenges the Decision on the basis that the learned Warden drew irrational and illogical inferences that Regis was unwilling to explore the tenements within a reasonable time and engaged in conduct designed to circumvent the objects of the Act. The relevant principles were reviewed by the Court of Appeal in Medical Board of Australia v Arunkalaivanan.[58] Those principles need not be repeated, and they were not in dispute in the matter before me.
[58] Medical Board of Australia v Arunkalaivanan [2023] WASCA 117.
Regis pointed to six specific matters said to reflect the illogicality of the Decision.
First, it was said the inferences drawn by the learned Warden were at too high a level of generality. When read fairly as a whole, in my view the Decision could not be said to lack an intelligible basis in that regard. The Decision sets out in considerable detail the matters from which inferences were drawn. From [129] of the Decision the learned Warden went through the affidavit evidence in respect of each tenement, and explained the basis for the inference and the manner in which her Honour found that Regis had sought to circumvent the operation of the Act. It may be that other inferences were available to be drawn in some respects or that other reasonable minds would not draw the inferences drawn by the learned Warden. But that falls far short of demonstrating the absence of an intelligible or logical basis to the learned Warden's approach.
Secondly, Regis also complained the Decision lacked an intelligible basis because the learned Warden did not identify precisely which tenements she considered were affected by Regis's design to circumvent the Act through collusion with others and which tenements were not so affected. Read fairly and as a whole, the Decision in my view did not lack an intelligible and rational basis in this regard. Again, from [129] of the Decision these matters are addressed in some detail. Even if a careful unpicking of each aspect of the Decision reveals some gaps in the learned Warden's reasoning or conclusions, in my view there was a sufficient and rational basis set out in the Decision to provide an intelligible basis for the learned Warden's general conclusions regarding Regis's conduct.
Thirdly, Regis alleged the Decision was irrational because the inference of collusion with other entities was drawn from the absence of evidence regarding the factors in s 102(4). In my view, when read fairly and as a whole, the inferences of collusion were not drawn solely from the absence of evidence in respect of the factors in s 102(4). The Decision sets out a raft of evidence from the affidavits filed on behalf of Mr Richmond relating to the conduct of third parties which formed part of the foundation from which the inferences were drawn together with the absence of evidence regarding the factors in s 102. I do not consider that the Decision lacked an intelligible or rational foundation in this regard.
Fourthly, Regis complains that there was no evidence regarding collusion with two particular entities: Aurora Gold (WA) Pty Ltd and Delta Gold NL. I do not agree. I accept the submission advanced on behalf of Mr Richmond that relevant evidence was provided in the form of the addresses given by those entities, the timing of the updating of those addresses to reflect a connection with Regis, the timing of surrenders by Aurora and Regis's subsequent conduct in respect of that land and the caveats and head of agreement in relation to Delta tenements that were ultimately transferred to Regis. Again, it may be that other reasonable minds may not have drawn the inferences drawn by the learned Warden. But it cannot be said there was no evidence such that there was an absence of any rational basis for the learned Warden's findings.
Fifthly, Regis complains that the inference drawn from the complex forms of tenements was illogical and irrational. This is the inference discussed in relation to Ground 2. The complaint appeared to be that as Regis could have advanced submissions to explain that the complex shapes and sizes were a product of the operation of the Act rather than a nefarious design, it was illogical for the learned Warden to conclude that the complex forms demonstrated Regis's conscious design to circumvent the Act. The fact that Regis may have been able to provide that explanation does not mean that the inference lacks an intelligible or rational basis. In any event, for the reasons set out in respect of Ground 2, this issue was not ultimately material to the outcome.
Sixthly, Regis complains that the learned Warden's conclusion that Regis was unwilling to explore or mine the tenements within a reasonable time frame was illogical and irrational because the learned Warden did not make findings regarding the work and expenditure undertaken by Regis during the particular periods that Regis held the tenements. Again, in my view, when read fairly and as a whole, the Decision did not lack an intelligible and rational basis in this regard. The learned Warden in effect found there was no evidence of work done or expenditure by Regis on the tenements and that Regis was unwilling to do so within a reasonable timeframe. Regis chose not to present evidence of those matters. The learned Warden drew inferences from that absence of evidence. The inferences were not necessarily compelling but again, that is not the test. The learned Warden's conclusions were not illogical. And even if, on close analysis, there may be gaps in the reasoning and aspects of the learned Warden's conclusions, in my view these were not material to the rationality and logicality of the learned Warden's general conclusions regarding Regis's conduct that formed the basis for her Honour's recommendation.
In the circumstances I would not uphold Ground 3.

Conclusion

I would uphold Ground 1, reject Grounds 2 and 3 and decline to make the declaration sought. The matter should be remitted back to the Warden to be heard in accordance with the proper construction of s 102. I invite the parties to provide a minute of orders.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
MJM
Research Associate to the Honourable Chief Justice Quinlan
19 NOVEMBER 2024