Regis Resources Limited v The Honourable William Joseph Johnston MLA, Minister for Mines and Petroleum

[2023] WASC 293

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   REGIS RESOURCES LIMITED -v- THE HONOURABLE WILLIAM JOSEPH JOHNSTON MLA, MINISTER FOR MINES AND PETROLEUM [2023] WASC 293

CORAM:   SOLOMON J

HEARD:   16 MAY 2023 WITH ADDITIONAL MATERIAL FILED ON 26 MAY 2023 AND 2 JUNE 2023

DELIVERED          :   7 AUGUST 2023

FILE NO/S:   CIV 1767 of 2022

BETWEEN:   REGIS RESOURCES LIMITED

Applicant

AND

THE HONOURABLE WILLIAM JOSEPH JOHNSTON MLA,  MINISTER FOR MINES AND PETROLEUM

First Respondent

PAUL POWER as delegate of THE MINISTER FOR MINES AND PETROLEUM

Second Respondent

Catchwords:

Judicial review - Whether under-expenditure is a precondition of grant of exemption under s 102(2)(h) of the Mining Act 1978 (WA) - Proper construction of s 102(2)(h) and s 102(3) of Mining Act 1978 (WA) - Minister's power exercised by delegate - Judicial review of decision by a delegate of the Public Service - Requirements of reg 54 of the Mining Regulations 1981 (WA) - Breadth of power under s 102(3) of Mining Act 1978 (WA)

Legislation:

Freedom of Information Act 1992 (WA)
Interpretation Act 1984 (WA) s 12, s 12(3), s 58
Mining Act 1978 (WA) s 102, s 102(1), s 102(2a), s 102(2), s 102(2)(h), s 102(3), s 115A, s 115A(2), s 115A(3), s 115A(4)
Mining Regulations 1981 (WA) reg 54, reg 54(1B), reg 58A, reg 58A(2), reg 90

Result:

Application granted

Category:    B

Representation:

Counsel:

Applicant	:	TC Russell
First Respondent	:	No appearance
Second Respondent	:	No appearance
Amicus Curiae	:	A Shuy

Solicitors:

Applicant	:	DLA Piper Australia - Perth
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office
Amicus Curiae	:	State Solicitor's Office

Cases referred to in decision:

Brewer v O'Sullivan [No 2] [2017] WASC 269

Carnegie Gold Pty Ltd v Maughen [2018] WASC 366

De Macro v Chief Commissioner of State Revenue (2013) 83 NSWLR 445

Forrest & Forrest v Wilson [2017] HCA 30; (2017) 262 CLR 510

Forrest v Minister for Mines and Petroleum (2017) 51 WAR 425

Kelly v Birchwood Consolidated Pty Ltd [2023] WASCA 76

Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs) (2010) 239 CLR 531

McKenzie v Minister for Lands [2011] WASC 335

Minister for Mines, the Honourable Moore MLC; Ex parte Peko Exploration Ltd (Applicant) v GHK Mining Pty Ltd (Intervener) (Unreported, WASC Library No BC9706155, 15 October 1997, 14 November 1997)

Nova Resources v French (1995) 12 WAR 50

Re Calder; Ex parte St Barbara Mines Ltd [1999] WASCA 25

Re Minister

Ex Parte Cazaly Iron Pty Ltd (2007) 34 WAR 403

Re Nicholls SM; Ex parte Plutonic Operations Ltd (2002) 27 WAR 56

Scurr v Brisbane City Council (1973) 133 CLR 242

Siberia Mining Corporation Pty Ltd v O'Sullivan [2020] WASC 214

Thompson v Siberia Mining Corporation Pty Ltd [2021] WASCA 115

SOLOMON J:

1. In this application, the applicant, Regis Resources Limited (Regis), seeks judicial review and a writ of certiorari to remove into this court and to quash the decisions of a delegate of the Minister to refuse four applications for exemption (the applications) from expenditure conditions under s 102 of the Mining Act 1978 (WA) (Act).  References in these reasons to statutory provisions are references to that Act, unless otherwise indicated.

Regis

1. Regis is a publicly listed company on the Australian Stock Exchange carrying on business as a gold mining and exploration company.  It is the manager of a project known as the Duketon Gold Project comprising some 202 tenements located in Western Australia.[1]

   [1] Applicant's outline of submissions dated 16 March 2023, [7].

Evidence

1. The evidence was provided in the form of two affidavits; one from Regis's tenements and land manager,[2] and the other from a lawyer with DLA Piper Australia, Regis's solicitors.[3]  The affidavits were received without objection.

   [2] Affidavit of Nicole Simone Johnston affirmed 27 July 2022.

   [3] Affidavit of Louise Diana Holland affirmed 15 March 2023.

Statutory framework

1. The applications were made under s 102 of the Act and in accordance with reg 54 of the Mining Regulations 1981 (WA) (Regulations).

2. Section 102 of the Act relevantly provides:

   (1)Subject to this Act, on an application (an application for exemption) made, as prescribed, by the holder of a mining tenement (other than a retention licence) or his authorised agent prior to the end of the year to which the proposed exemption relates, or within the prescribed period after the end of that year, the holder may be granted a certificate of exemption in the prescribed form totally or partially exempting the mining tenement to which the application relates from the prescribed expenditure conditions relating thereto, in an amount not exceeding the amount required to be expended —

   (a)in respect to any mining tenement other than a mining lease, in any one year; and

   (b)in respect to a mining lease, subject to subsection (7), in a period of 5 years.

   (1A)An application for exemption may relate to more than one mining tenement.

   (2)A certificate of exemption may be granted for any of the following reasons —

   (a)that the title to the mining tenement is in dispute; or

   (b)that time is required to evaluate work done on the mining tenement, to plan future exploration or mining or raise capital therefor; or

   (c)that time is required to purchase and erect plant and machinery; or

   (d)that the ground the subject of the mining tenement is for any sufficient reason unworkable; or

   (e)that the ground the subject of the mining tenement contains a mineral deposit which is uneconomic but which may reasonably be expected to become economic in the future or that at the relevant time economic or marketing problems are such as not to make the mining operations viable; or

   (f)that the ground the subject of the mining tenement contains mineral ore which is required to sustain the future operations of an existing or proposed mining operation; or

   (g)that political, environmental or other difficulties in obtaining requisite approvals prevent mining or restrict it in a manner that is, or subject to conditions that are, for the time being impracticable; or

   (h)that —

   (i)the mining tenement is one of 2 or more mining tenements (combined reporting tenements) the subject of arrangements approved under section 115A(4) for the filing of combined mineral exploration reports; and

   (ii)the aggregate exploration expenditure for the combined reporting tenements would have been such as to satisfy the expenditure requirements for the mining tenement concerned had that aggregate exploration expenditure been apportioned between the combined reporting tenements.

   (2a)In subsection (2)(h) –

   aggregate exploration expenditure means expenditure –

   (a)on, or in connection with, exploration for minerals on the combined reporting tenements; and

   (b)worked out in a manner specified in the regulations.

   (3)Notwithstanding that the reasons given for the application for exemption are not amongst those set out in subsection (2), a certificate of exemption may also be granted for any other reason which may be prescribed or which in the opinion of the Minister is sufficient to justify such exemption.

   (4)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.   

   (4A)A person who wishes to object to the granting of an application for exemption must lodge a notice of objection.

   (4B)A notice of objection must be —

   (a)lodged within the prescribed time and in the prescribed manner; and

   (b)accompanied by the prescribed fee.

   (5)An application for exemption —

   (a)where an objection to the application is lodged, shall be heard by the warden; but

   (b)otherwise, shall be forwarded to the Minister for determination by the Minister.

   (6)The warden shall as soon as practicable after the hearing of the application transmit to the Minister for his consideration the notes of evidence and any maps or other documents referred to therein and his report recommending the granting or refusal of the application and setting out his reasons for that recommendation.

   (7)Where the warden finds that the reasons given by the holder of the mining lease are sufficient to justify the granting of a certificate of exemption and so recommends, or if the Minister is satisfied whether or not a recommendation is made by the warden, the Minister may grant a certificate of exemption in an amount not exceeding the amount required to be expended in respect of the mining lease in the period of 5 years from the commencement of the year to which the application relates.

3. As will be explained, s 102(2)(h) is the principal focus of this application for judicial review. Section 115A of the Act requires the holder of a mining tenement to file a mineral exploration report.[4]  The section prescribes the matters to be contained in the report.[5] Under s 115(4), the Minister may approve of arrangements for combined mineral exploration reports to be filed for two or more tenements. Section 102(2)(h) sets out circumstances where an exemption may be granted where there are combined reporting tenements. A number of Regis's tenements were the subject of such approved arrangements. Each of the tenements the subject of the applications was a tenement that was part of a combined reporting group.

   [4] Mining Act 1978 (WA), s 115A(2).

   [5] Mining Act 1978 (WA), s 115A(3).

4. Section 102 grants the 'Minister' the statutory power to exempt a tenement holder from expenditure requirements otherwise imposed by the Act. Section 12 of the Interpretation Act 1984 (WA) provides that the 'Minister' is the Minister of the Crown to whom the administration of the relevant Act has been committed by the Governor.  Here, that is the Minister for Mines and Petroleum, the first respondent to this application (Minister). 

5. Section 11 provides for a department of the Public Service to assist the Minister in the administration of the Act. Under s 12(1), the Minister may delegate the power conferred by s 102 to an officer of that department of the Public Service. In this matter, the Minister delegated the statutory power to an officer of the Public Service, the second respondent, Mr Paul Power (Mr Power). 

6. An exemption under s 102 requires the decision-maker to form a view that the exemption is justified in accordance with the statutory provision. By reason of s 12(3) and s 58 of the Interpretation Act 1984 (WA), the relevant state of mind or opinion was that of Mr Power. Mr Power's decision was not an act done vicariously or on behalf of the Minister. Mr Power's decision was itself the exercise of state power under the Act.[6]  The application and these reasons are therefore concerned with the conduct and decision of Mr Power. 

   [6] Brewerv O'Sullivan [No 2] [2017] WASC 269 [71].

7. Mr Power was joined as the second respondent to this application by order of the court on 22 February 2023.[7]  Both the Minister and Mr Power filed notices of intention to abide by the decision of the court.[8]  The Attorney General appeared by counsel on this application as amicus curiae.

   [7] Orders Solomon J (22 February 2023).

   [8] Respondent's notice of intention to abide by decision dated 16 August 2022; Second respondent's notice of intention to abide by decision dated 23 February 2023.

8. Section 102(1) provides for an application for exemption to be made 'as prescribed'. Regulation 54 provides:

   (1)An application for a certificate of exemption under section 102 shall be made in the form of Form 18 and lodged with the prescribed fee.

   (1a)For the purposes of section 102(1), the prescribed period in which an application may be made, after the end of the year to which the proposed exemption relates, is 60 days.

   (1B)A copy of a Form 18 lodged under section 102 must be published on the Department's website.

   (2)An application for a certificate of exemption under section 102A shall be accompanied by the prescribed fee.

   (3)An applicant for a certificate of exemption under section 102 or 102A shall also lodge reasons in the form of a statutory declaration supporting the application for the certificate of exemption within 28 days after the lodgement of the application.

9. The Regulations thus require an application for exemption under s 102 to be made in the form of Form 18.[9] Form 18 is found in Sch 1 to the Regulations. Regulation 90 provides that a form prescribed by the Regulations shall be completed in accordance with such directions as are specified in the form as so prescribed. Form 18 prescribes certain information that is required to be provided. One of them is a section headed 'Exemption Details'. The notes in the margin of Form 18 include the following description of what is to be filled out in that section:

   (g)Reasons for application (include relevant paragraph/s of section 102(2) of the Mining Act 1978 (if applicable) […]

   [9] Mining Regulations 1981 (WA), reg 54(1).

10. The content of the Form 18 application and the subsequent statutory declaration required by reg 54(3) was considered in Re Nicholls SM; Ex parte Plutonic Operations Ltd (Plutonic).[10]  Wheeler J (with whom Murray and Miller JJ agreed) explained:[11]

    In my view, it is not necessary, in filling out the Form 18, for the applicant to set out the material facts and circumstances upon which it relies in order to justify the request for exemption. Rather, it is sufficient for what might in other contexts be called the grounds of the application to be identified broadly, by reference to the statute and the reasons listed in s 102(2) or by reference to some other reason which is either prescribed pursuant to s 102(3) or which the applicant considers the Minister may consider sufficient.

    There are two principal reasons for reaching this view. First, Form 18, in using the word "reasons", duplicates the expression to be found in s 102(2); one may infer that the reasons which are sought are matters which are able to be identified, by reference to the statute, as appropriate reasons. Second, reg 54 requires "reasons in the form of a statutory declaration" to be lodged in addition to the application. It is reasonable to assume that the intention is not that the statutory declaration will simply duplicate material in the application, but that it will be a more detailed statement of the matters relied upon as justifying the exemption. Because those two documents are required to be lodged, it appears to me that the application is required only to contain "reasons" sufficient to enable the Warden to form a view as to whether or not the application falls within the scope of s 102, while the statutory declaration would contain the material facts and circumstances relied upon to demonstrate the existence of the reason or reasons identified.

    [10] Re Nicholls SM; Ex parte Plutonic Operations Ltd (2002) 27 WAR 56.

    [11] Plutonic [19] - [20].

The applications

1. The applications were lodged by Regis between 27 August 2021 and 10 December 2021.  They were refused between 3 June 2022 and 14 July 2022.  The details are as follows:

Tenements Affected	Exemption Application no.	Date of Lodgement of Exemption Application	Decision to Refuse Exemption Application
E38/3292	631371	27 August 2021	10 June 2022
P38/4115
P38/4471	633332	30 September 2021	24 June 2022
P38/4506
E38/3199	631657	1 September 2021	14 July 2022
E38/3460
E38/1995	637310	10 December 2021	14 July 2022
E38/2916

1. In its Form 18 applications under the 'Exemption Details' section, and in answer to (g) as explained in paragraph [12] above, Regis set out the terms of each of the subparagraphs (a) to (h) of s 102(2). It also set out s 102(3) and added 'Other reasons include, but are not limited to, that the grant of the exemption is of benefit to the State'.[12]

   [12] Affidavit of Nicole Simone Johnston affirmed 27 July 2022, "NSJ-01", "NSJ-07", "NSJ-10", "NSJ-13".

2. In accordance with the requirements of reg 54(3), Regis followed each Form 18 application with a statutory declaration providing reasons in support of the application. The statutory declaration for each of the applications focussed solely on the circumstances said to give rise to an exemption under s 102(2)(h).[13] The statutory declarations provided evidence as to the approved arrangements under s 115A(4) for the filing of combined mineral exploration reports, and provided details of the aggregate expenditure for the group and the minimum statutory expenditure, so as to demonstrate that the requirements of s 102(2)(h) had been satisfied.

   [13] Affidavit of Nicole Simone Johnston affirmed 27 July 2022, "NSJ-01", "NSJ-07", "NSJ-10", "NSJ-13".

3. Although, as noted, in its Form 18 application, Regis set out each subparagraph of s 102(2) and also s 102(3), consistently with Regis's statutory declarations, the circumstances said by Regis to give rise to an exemption under s 102(2)(h) emerged as the sole basis for the applications.

4. Following each of the applications and statutory declarations, Mr Power sent to Regis a notice of intention to refuse the application.  The first such notice was dated 29 November 2021.[14] In the notice, Mr Power advised that 'The Department considers that the application does not meet the criteria set out in s 102 of the Act'.[15] Although the opinion is attributed to the amorphously styled 'Department', for the reasons set out at paragraph [9] above, the only relevant consideration was that of Mr Power himself. The letter went on to state that 'it has been noted' (which again must mean that Mr Power noted) that the reported expenditure for the relevant tenements exceeded the minimum required expenditure. It then referred to the requirement in s 102(4) that regard must be had to the money spent on the tenement. The notice then provided Regis with 35 days 'to make a further submission to support [the] application, including any reason(s) why this application is required'. The notice advised that 'After this period [the] application will be determined based on the information provided'.[16]

   [14] Affidavit of Nicole Simone Johnston affirmed 27 July 2022, "NSJ-08".

   [15] Affidavit of Nicole Simone Johnston affirmed 27 July 2022, "NSJ-08".

   [16] Affidavit of Nicole Simone Johnston affirmed 27 July 2022, "NSJ-08".

5. Regis responded to Mr Power's notices of intention to refuse the applications. The letter from Regis reflected its understanding (correctly as it turned out) that Mr Power's intention to refuse the application was because Regis through its Form 5 Operations Reports claimed to have met the minimum expenditure requirements and was, in Mr Power's view, therefore ineligible for the grant of exemption under s 102(2)(h).[17] That is, an application for exemption under s 102(2)(h) was not available where the applicant had reported expenditure that met the minimum expenditure requirement. The letter went on to explain in considerable detail why Regis considered that position did not reflect a correct understanding of s 102. The letter referred in particular to the decision of this court in Carnegie Gold Pty Ltd v Maughen (Carnegie).[18] As will be explained in some detail, in that decision Archer J held that if an applicant for exemption had reported expenditure that met the minimum expenditure requirements it was nevertheless entitled to apply for an exemption under s 102. The letter provided a schedule of extracts of the relevant parts of that decision.

   [17] Affidavit of Nicole Simone Johnston affirmed 27 July 2022, "NSJ-03".

   [18] Carnegie Gold Pty Ltd v Maughen [2018] WASC 366.

1. A meeting was subsequently arranged between Regis's lawyers and officers of the Department on 26 April 2022.  In advance of that meeting, Regis's lawyers sent a lengthy email further explaining its position.[19]  The email referred to a telephone conversation of 6 April 2022 in which Mr Power advised Regis's lawyers that the Department considered that the outcome of the decision in Carnegie was not applicable to s 102(2)(h) and the Department therefore maintained its intention to refuse the applications. Again, the reference to the views and intentions of the 'Department' can only relevantly mean the views and intentions of Mr Power. The email from Regis's lawyers explained why, in the view of Regis and its lawyers, the position adopted by Mr Power was not correct.

Refusal of the application

[19] Affidavit of Nicole Simone Johnston affirmed 27 July 2022, "NSJ-04".

1. As noted, ultimately the applications were all refused.  Each refusal was communicated by a letter in identical terms.  The first was dated 10 June 2022.[20] The basis for refusal stated in those letters was not enlightening. Mr Power succinctly communicated: 'It was decided that the application failed to satisfy the requirements of the Act'.[21] Putting the paucity of explanation to one side, the deflecting passive form of the communication does not alter its legal character; it was a purported exercise of a statutory discretion by Mr Power. It was Mr Power's decision based on Mr Power's view that the application failed to satisfy the requirements of the Act.

   [20] Affidavit of Nicole Simone Johnston affirmed 27 July 2022, "NSJ-06".

   [21] Affidavit of Nicole Simone Johnston affirmed 27 July 2022, "NSJ-06".

2. In light of the sparse reasoning, or in truth, the absence of any substantive reasoning, in Mr Power's letters of refusal, Regis sought to confirm the reason for refusals by applications under the Freedom of Information Act 1992 (WA). The applications were successful, but the documents disclosed by that process were hardly more enlightening.[22]

   [22] It appears from the evidence of the documents obtained through the freedom of information applications that the Department's decision-making processes were recorded in the form of checklists, referred to as 'Facesheets' and entries onto the electronic Mineral Titles Online system ('eMITS'). The Facesheets are expressly designed, it appears, to evaluate an application for exemption from expenditure commitments. They take the form of a checklist which appears largely to reflect the requirements set out in s 102 and the various subsections of s 102(2). One of the lines requires a yes or no tick box to be completed indicating whether the Form 5 Report on Operations for the tenement shows that the minimum expenditure has been met. The line is not in the section that appears to be directed specifically to s 102(2)(h). It also does not refer to a group of tenements. It would appear therefore that the line is intended to be generally relevant, and not limited to an application under s 102(2)(h). That raises the possibility that the Facesheet is the same tool that has been used by the Department since prior to the decision in Carnegie. If the form had taken account of that decision, one might have expected it to be framed somewhat differently. It may be that the question about expenditure is directed to the mandatory consideration under s 102(4). However, that subsection is not only concerned with the current Form 5 expenditure, so it is difficult to conclude that was intended to be its sole function. Rather, the terms of the Facesheet give rise to the possibility that the tool deployed by the Department to evaluate an application has not been refined to accommodate the decision of this court in Carnegie.  In addition, I note that in the eMiTS Comments Enquiry Report for one of the tenements there is an entry regarding the meeting held with Regis's lawyers on 26 May 2022. The entry reads: 'Meeting held 26/5/22 with [redacted] and Compliance Tenure Officers to discuss applications.  Applications to now proceed for determination (refusal)'. It appears the date may be an error and should have been recorded as 26 April 2022. Be that as it may, if there was any substantive consideration given to the matters raised by Regis's lawyers, it was not recorded on the Department's records.  These concerns are not relevant to the outcome of this judicial review application.  However, they add to a sense of unease that there may have been less than fulsome and substantive consideration given to this court's decision in Carnegie and the further matters raised by Regis's lawyers.

3. Following the commencement of this application, the matter was listed for directions before the court on 21 December 2022.  On the evening of 20 December 2022, the State Solicitor's Office provided Regis with a letter from Mr Power of that date which explained his position in the following terms:[23]

   I confirm that I decided to refuse each of the applications on the basis that, on the proper construction of subsection 102(2)(h) of the Mining Act, and having regard to the form 5 Operations Report lodged for the relevant year, "under-expenditure" is a requirement or criterion of the Mining Act.

   I did not consider whether a certificate of exemption should be granted under any other subparagraph of subsection 102(2) in circumstances where the reasons lodged in the form of statutory declarations under regulation 54(3) of the Mining Regulations in support of the applications relied solely on subsection 102(2)(h).

   I further confirm that I did not consider whether a certificate of exemption should be granted under subsection 102(3) of the Mining Act.

   Applications are required to be published under regulation 54(1B) of the Mining Regulations.

   The Department of Mines, Industry Regulation and Safety publishes guidelines from time to time identifying that applicants must adequately state the reason on the application for applying for a certificate of exemption under subsection 102(3).

   While I did not specifically refer to the guidelines at the time of making my decisions, I was aware of the content of the guidelines, and attach a copy of the current version of the guidelines as published on the Department's website.

   In each of the relevant applications, the applicant relied on subsection 102(3), but did not adequately state that a certificate of exemption was applied for under subsection 102(3), as an alternative to subsection 102(2) (h)

   As stated above the reasons lodged in the form of statutory declarations under regulation 54(3) of the Mining Regulations in support of the applications relied solely on subsection 102(2) (h).

   [23] Affidavit of Louise Diana Holland affirmed 15 March 2023, "LDH-08".

Judicial review

1. It is trite to observe that judicial review is a critical mechanism whereby state power is supervised by the court to ensure that it is exercised in accordance with the limitations conferred by the legislature through the relevant statute. As noted, although the power under s 102 is conferred upon the Minister, in this matter, it was exercised by a member of the public service through a lawful delegation of the Minister's power (as is commonly the case). The review function of the court is no less critical, and perhaps all the more important, when the exercise of power has been delegated to an officer of the public service. In Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs), the High Court emphasised the importance of the supervisory jurisdiction exercised by State Supreme Courts.[24]  In that context, the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) cautioned against the creation of islands of power immune from supervision and restraint.[25]  Such islands are no less likely to evolve within the public service.  Isolated to some extent from the public glare of ministerial conduct, the public service might be thought indeed to be more vulnerable to the emergence of such islands.

   [24] Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs) (2010) 239 CLR 531 (Kirk).

   [25] Kirk [99].

2. In Sir William Gilbert's satirical parody of the public service, a principal character exclaims, 'it is one of the happiest characteristics of this glorious country that official utterances are invariably regarded as unanswerable'.[26]  Those words were designed to entertain, not inform.  In truth, it is one of the happiest features of our system of law that official utterances are generally subject to review by an independent judiciary. 

   [26] Sir W. S. Gilbert, 'H.M.S. Pinafore' Act II, also cited by Hon Justice Kirby, 'New Rules for Bureaucrats' (September 1978) Real Estate Journal, Queensland 1, 6.

Grounds for review

1. Regis contends that the delegate erred on the following grounds:[27]

   (1)The delegate erred in law as to the proper interpretation of section 102(2)(h) of the Mining Act 1978 (WA) (the Act), by finding that no application for exemption from expenditure can be granted where an applicant for exemption has lodged a Form 5 Expenditure Report [also known as an 'operations report'] in which it has recorded expenditure of an amount that meets or exceeds the minimum expenditure commitment for the relevant year.

   (2)The delegate erred in law as to the proper interpretation of section 102 of the Act and Regulation 54 of the Mining Regulations 1981 (WA) in finding that the applicant did not properly apply for an exemption from expenditure under section 102(3) of the Act in the applications for exemption numbered 631371, 633332, 631657 and 637310.

   (3)The delegate failed to consider whether there were grounds for an exemption from expenditure under section 102(3) of the Act. 

   [27] Amended application for judicial review dated 3 June 2022.

2. The grounds of appeal raise for consideration the proper construction of provisions of the Act and the Regulations. It is convenient, therefore, to begin with the principles of statutory construction. The Court of Appeal recently provided a succinct summary of the principles in Kelly v Birchwood Consolidated Pty Ltd as follows:[28]

   The principles of statutory construction are well settled.  Statutory construction involves attribution of meaning to statutory text.  The Court's task in that regard must begin and end with the statutory text as a whole, considered in its context, including its objectively discerned statutory purpose. 

   As to the last matter, statutory purpose, French CJ, Hayne, Kiefel, Gageler and Keane JJ said in Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664:

   Objective discernment of statutory purpose is integral to contextual construction.  […] For:

   it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

   [28] Kelly v Birchwood Consolidated Pty Ltd [2023] WASCA 76 [176] - [177].

3. The statutory purposes of the Act have been discussed in a number of decisions.[29]  In Re Minister: Ex Parte Cazaly Iron PtyLtd (Cazaly Iron),[30] Buss JA said that the primary object of the Act is to encourage and promote the prospecting and exploration for, and mining of, mineral deposits in the State.[31] Pullin JA explained that some provisions of the Act reflect that the mining industry in Western Australia has increasingly matured and now involves the investment of billions of dollars.[32] In respect of s 102 and its related provisions, Pullin JA said:[33]

   […] Div 7 (which has existed for a long time in one form or another) allows for the grant of a certificate of exemption to a tenement holder. This will exempt the tenement from the condition that money be spent on mining, or in connection with mining in relation to it, for certain periods of time. The exemption may be granted for a variety of reasons, including that the tenement contains a mineral deposit which is uneconomic but which may be expected to become economic at some time in the future; or that the ground the subject of the mining tenement contains mineral ore which is required to sustain the future operations of an existing or proposed mining operation; or that time is required to evaluate work done on the mining tenement to plan future exploration or mining or to raise capital therefore. See s 102(2). […] These provisions make it clear that one object or purpose of the Act is to identify circumstances in which a tenement holder will be allowed to hold a tenement without mining or giving it up to others who may wish to actively mine the land.

Ground 1

[29] See for example Nova Resources v French (1995) 12 WAR 50 at 57 - 58; Forrest v Minister for Mines and Petroleum (2017) 51 WAR 425 [96].

[30] Re Minister: Ex Parte Cazaly Iron Pty Ltd (2007) 34 WAR 403.

[31] Cazaly Iron [70].

[32] Cazaly Iron Pty [20] - [21]. 

[33] Cazaly Iron [22].

1. A significant focus of Ground 1was the decision of her Honour Archer J in Carnegie.  It is necessary to explain the background and outcome of that decision.

Carnegie decision

1. In Carnegie, the relevant primary issue for determination was framed by Archer J as follows:[34]

   On the proper construction of s 102 of the Act, can an application for exemption from expenditure be granted where the applicant has lodged an operations report in which it has recorded expenditure of an amount that meets or exceeds the minimum expenditure commitment for the relevant year?

   [34] Carnegie [7].

2. Archer J determined that the answer to the question was yes. That is, Archer J held that even where an applicant has recorded expenditure of an amount that meets or exceeds the minimum, an exemption can nevertheless be granted under s 102. In coming to that conclusion, her Honour set out and summarised the relevant legislative framework and the purpose of the Act.[35]  Her Honour then addressed the legal principles of judicial review and certiorari which are equally applicable in this application.[36]  I respectfully adopt, without repeating, those summaries. 

   [35] Carnegie [10] - [22].

   [36] Carnegie [41] - [54].

3. Archer J then turned to the proper construction of s 102. Her Honour proceeded on the basis that two possible constructions of s 102 were open, which she characterised as the narrow construction and the broad construction.[37]  On the narrow construction, an exemption cannot be granted where the applicant has lodged an operations report which records expenditure that meets or exceeds the mandatory statutory minimum expenditure.[38]  On the broader construction, an exemption may be granted in those circumstances although the reported satisfaction of the statutory expenditure will, or may be, a relevant consideration in the exercise of the statutory discretion.[39]

   [37] Carnegie [57] - [59].

   [38] Carnegie [58].

   [39] Carnegie [59].

4. Archer J concluded that the broad construction was correct.  Her Honour did so for a number of reasons.

5. First, her Honour observed that the Act and the Regulations prescribe the requirements for an application.[40] Those requirements do not include any necessity for the applicant to have spent or to have claimed or demonstrated expenditure less than the statutory minimum. It is likely that consideration will be given to the money spent, and indeed s 102(4) mandates such a consideration (although I observe that in terms it is not limited to the money claimed to have been spent in the current operations report). Yet significantly, no requirement to have spent less than the statutory minimum is expressed. Such a requirement could have been simply expressed.

   [40] Carnegie [18] - [19].

6. Archer J then went on to explain why an understanding of the context and purpose of s 102 supported the broad construction.[41]  In that regard, her Honour referred to three aspects of statutory regime; the reasons for exemption,[42] the timing of applications[43] and the provisions for forfeiture.[44]  Archer J considered that properly understood, each of those favoured the broad construction.  I shall summarise her Honour's reasoning in respect of each one.

   [41] Carnegie [70] - [88].

   [42] Carnegie [71] - [76].

   [43] Carnegie [77] - [80].

   [44] Carnegie [81] - [88].

7. Her Honour observed that s 102(2) sets out the reasons for which an exemption may be granted in eight subparagraphs (a) to (h). Yet, only one of them, (h), 'focuses on under-expenditure'.[45] In contrast to (h), the other reasons relate to practical mining realties or external influences and do not entail any requirement for the applicant to specify the amount expended at all. Further, s 102(3) is expressed in very broad terms. Her Honour considered that those matters favoured a broad construction.[46]

   [45] Carnegie [71].

   [46] Carnegie [71] - [76].

8. In respect of the timing for applications, Archer J observed that, save for (h), an application may be made prospectively before the applicant may know how much it has or will expend, and can also be made after a forfeiture application has been made.  Archer J considered that those open-ended features of the timing for applications for exemption weighed against a narrow construction.[47]

   [47] Carnegie [77] - [80].

9. Archer J considered that the forfeiture regime was the most powerful reason weighing against the narrow construction.  That is because the complexities not uncommonly associated with expenditure claims are such that innocent errors, or genuine uncertainty may well attend claims of expenditure.  A tenement holder may therefore wish to seek exemption notwithstanding having filed a report claiming that the minimum expenditure has been met.  The honest tenement holder who is mistaken or uncertain would be disadvantaged if that holder could not apply for an exemption to guard against the consequences of error or uncertainty.  That tenement holder would be compelled to defend an application for forfeiture without the benefit of being able to apply for exemption.  In effect, Archer J concluded that the provisions in their terms and context, did not support or suggest such an outcome.[48]

   [48] Carnegie [81] - [88].

10. The Attorney General did not seek to argue that Archer J's decision was wrong. The Attorney General accepted it was correct, but that its application was limited to the subparagraphs of s 102(2) other than (h). Counsel for the Attorney General submitted that the question before Archer J was not posed in the context of reliance upon subparagraph (h). Her Honour's decision was therefore strictly obiter in respect of subparagraph (h). In respect of (h), the Attorney General submitted that the statutory power was not available unless the tenement holder had in fact expended less than the statutory minimum. It followed that an application for exemption could not be granted in circumstances where the applicant had filed a Form 5 report showing expenditure in excess of the mandatory statutory minimum.[49]

    [49] Outline of submissions of Amicus Curiae dated 25 April 2023, [49] - [59].

11. In advancing that position, counsel for the Attorney General directed attention to the observations of Archer J which pointed out features that distinguished subparagraph (h) (which her Honour called 'the project exemption ground') from the other subparagraphs of s 102(2). In particular, counsel for the Attorney General drew attention to the following paragraphs of her Honour's decision:[50]

    The project exemption ground, unlike each other ground:

    (1)assumes that expenditure on an individual tenement is less than the expenditure condition requires;

    (2)relies upon the aggregate amount of expenditure for the group of tenements being known and being sufficient to meet the expenditure requirements if apportioned between all tenements; and

    (3)is applicable only in a retrospective application.

    As was encapsulated by the Attorney General, the other grounds in s 102 cover practical mining realities or external influences which have been recognised by the legislature as relevant considerations in assessing the reasonableness of requiring a tenement holder to comply with the usual expenditure conditions. These other grounds do not expressly state that the reason only applies if expenditure on a tenement is less than required by the expenditure conditions. They do not rely on the holder being able to specify the precise amount expended.

    [50] Carnegie [73] - [74].

1. Counsel for the Attorney General relied upon that passage for his central contention that Archer J's conclusion on the proper construction of s 102 did not apply to s 102(2)(h), and that s 102(2)(h) carries an 'assumption' that the applicant had spent less than the statutory requirement.[51]

   [51] Transcript 16 May 2023, 17 - 19.

2. I first observe, and counsel for the Attorney General readily accepted, that even if subparagraph (h) is to be understood as carrying an 'assumption' that the applicant has underspent on the subject tenement, that of itself does not establish that the assumption is to be elevated to a precondition to the exercise of the statutory discretion.[52]  In the absence of a precondition expressly contained or necessarily implied in the statutory provision, an 'assumption', if it means anything, can mean nothing more than a reflection of the circumstances in which an application will ordinarily be made.  The 'assumption' may reflect what will ordinarily occur, but that does not amount to a precondition to the exercise of power.  Identifying the circumstances that ordinarily will prevail in the application of a statutory provision can only be relevant to the extent that it bears upon the proper construction of the provision.  That exercise is one primarily directed to the statutory text and object. 

   [52] Transcript 16 May 2023, 18 - 19.

3. The Attorney General contended that the precondition of under-expenditure is to be found in words of the provision 'would have been such as to have satisfied the expenditure requirements for the mining tenement concerned had that aggregate exploration expenditure been apportioned between the combined reprint tenements'.[53] The Attorney General argued that the provision might have been framed simply that the exemption is available if the aggregated actual expenditure of the group is greater than the aggregated statutory minimum expenditure. Instead, the provision stipulates a retrospective and hypothetical apportionment of the actual expenditure between the tenements in the group. That exercise directs a focus to the allocation of actual expenditure to the individual tenements in the group. That in turn is undertaken to ascertain whether the allocation to the tenement the subject of the exemption application was such as to exceed the statutorily required expenditure. The exercise expressed in that way manifests an assumption that the actual expenditure for the subject tenement would otherwise, but for the hypothetical re-allocation, be less than the statutorily required minimum. So understood, the assumption operates as a precondition to the discretionary power to grant an exemption under s 102(2)(h).

   [53] Transcript 16 May 2023, 19.

4. The term aggregate exploration expenditure is defined in subparagraph (2a) set out at paragraph [5] above. The definition directs attention to the Regulations. Regulation 58A(2) provides that for the purposes of the definition of aggregate exploration expenditure in s 102(2a), the expenditure is to be worked out by adding together the total exploration expenditure shown in each relevant operations report. The operation of s 102(2)(h) and reg 58A was discussed at some length by Pritchard J in Brewer v O'Sullivan [No 2] (Brewer).[54] Her Honour noted that the effect of reg 58A(2) is that the source of the information from which the aggregate expenditure is to be calculated is confined to the Form 5 operations reports required to be filed pursuant to s 115A.[55] That of course is subject to the possible imposition of the audit procedure under s 115B. It is therefore the aggregate expenditure reflected in the Form 5 operations report that is the subject of the apportionment contemplated by s 102(2)(h)(ii).

   [54] Brewer v O'Sullivan[No 2] [2017] WASC 269.

   [55] Brewer [167].

5. In Brewer, Pritchard J also explained the practical application of s 102(2)(h) and reg 58A:[56]

   The word 'apportioned' is a derivative of the word 'apportion' which means 'to divide and assign in just proportion or according to some rule; distribute or allocate proportionally' and 'to assign in proper portions or shares; to divide and assign proportionally; to portion out, to share'. 

   Accordingly, on its ordinary meaning, s 102(2)(h) means that the aggregate exploration expenditure defined in s 102(2a) for the combined reporting tenements (that is, for all the tenements in the combined reporting group) would have been such as to satisfy the 'expenditure requirements' (that is, expenditure conditions) for the mining tenement for which the exemption is sought, had that aggregate exploration expenditure been assigned or shared between the combined reporting tenements. (In so far as the apportionment is concerned, it cannot be assumed that that means an equal division of the expenditure across the number of tenements in the combined reporting group. To do so would be to ignore that different minimum expenditure requirements may (and in this case, did) apply to the various tenements in the combined reporting group. That being the case, the question necessarily must be whether the aggregate exploration expenditure would be sufficient to meet the minimum expenditure requirements applicable to each tenement in the combined reporting group, were that expenditure distributed across the group. The answer to that question would most conveniently be reached by considering whether the total aggregate exploration expenditure exceeded the total of the minimum expenditure condition amounts for each tenement in the combined reporting group. Subject to the manner in which she calculated the aggregated exploration expenditure, that was the calculation undertaken by the Delegate in this case.)

   [56] Brewer [159] - [160].

6. In my view, the Attorney General's contention that the words of s 102(h)(ii) embody an assumption of under-expenditure on the subject tenement should not be accepted, primarily because the section does not say so. The absence of wording to that effect is all the more relevant because, as Archer J observed in Carnegie at [61], it would have been a very simple thing to express. Moreover, given the significance of the asserted precondition, such a qualification to the exercise of the statutory power could not be said to be unexpected.[57]

   [57] See Barnes J, Dharmanada J and Moran E, Modern Statutory Interpretation (2023) [18.4]; De Macro v Chief Commissioner of State Revenue (2013) 83 NSWLR 445 [75].

7. Moreover, the Attorney General's submission tends to invest the provision with a level of complexity that is unnecessary.  As Pritchard J explained, the notion of apportionment adopted by the provision simply reflects an exercise whereby the actual expenditure is hypothetically distributed across each tenement in the group. 

8. The hypothetical exercise stipulated by the Act is expressed as: 'had that aggregate exploration expenditure been apportioned between the combined reporting tenements'. That is, the provision postulates the apportionment of the actual expenditure between the grouped tenements but is silent on how exactly that apportionment is undertaken. In my view, to satisfy the requirement of s 102(2)(h), the aggregate actual expenditure must be sufficient to meet the statutory minimum for all the tenements in the group; nothing more complicated is required by s 102(2)(h).

9. That appears to be the approach adopted by Pritchard J. Moreover, any contrary approach seems to me to be fraught with complexity or uncertainty, or both. For example, if the aggregate actual expenditure for the group is less than the aggregate statutory minimum expenditure, neither the Act nor the Regulations provide a method whereby an apportionment of the actual expenditure can somehow be made such that the subject tenement will hypothetically meet the statutory minimum but other tenements in the group may not. Similarly, if the aggregate actual expenditure for the group is more than the aggregate statutory minimum expenditure, neither the Act nor the Regulations provides a method whereby an apportionment of the actual expenditure can somehow be made such that the subject tenement will nevertheless, hypothetically, not meet the statutory minimum.

10. In my view, on its proper construction, if the aggregate expenditure exceeds the aggregate statutory requirement, then the subsection has been met. The corollary is that on a plain application of the statutory and regulatory provisions, if the aggregate expenditure does not exceed the aggregated statutory minimum expenditure, then the requirement of s 102(2)(h) cannot be met. Simply put, unless there is enough expenditure hypothetically to apportion to every tenement in the group, the application for the subject tenement cannot succeed.

11. I also consider that this construction is consistent with the object of the provision.  I have referred above to the observations of Pullin JA in Cazaly Iron; the enormous levels of expenditure in the contemporary mining industry, and that the objects the Act include identifying circumstances in which a tenement holder will be allowed to hold a tenement without mining or giving it up. In Re Calder; Ex parte St Barbara Mines Ltd (St Barbara Mines), Malcolm CJ (with whom (Pidgeon and Ipp JJ agreed) said:[58]

    In my opinion, the evident purpose of s 102(2)(h) is to enable a mining entity to invest substantial capital in mining or exploration of one or more of a group of mining tenements incorporated within a project without risk of forfeiture of other tenements in the project for non-compliance with the individual expenditure conditions otherwise applicable.

    [58] Re Calder; Ex parte St Barbara Mines Ltd [1999] WASCA 25 [33].

12. In Brewer Pritchard J said:[59]

    [T]he purpose of the exemption in s 102(2)(h) was to ensure that the minimum expenditure amount was spent on or in connection with exploration for minerals … across the tenements in a combined reporting group.

    [59] Brewer [188].

13. Those articulations of the purpose of s 102 are consistent with the construction I have adopted and do not lend themselves to the implication of formulae of any complexity.

14. For those reasons, I do not consider that the statutory words of a hypothetical apportionment carry any assumption that the tenement the subject of the application has been underspent.  To the extent that Archer J suggested otherwise at [73(1)] in Carnegie, I would respectfully disagree. 

15. As noted, the Attorney General supports his construction by arguing that the statutory language of a hypothetical allocation must be given work to be done.  Otherwise, the section could simply have required the aggregate actual expenditure to be greater than the aggregate statutory expenditure.  While there is some force to the submission, in my view, the Attorney General's submission gives the provision too much work to do and invests it with the sort of complexity that I have suggested above is unwarranted.  That the section might have been expressed more simply is not a reason to impose on it a complexity which the words do not bear.  Moreover, it seems to me that the wording reflects the rationale of the provision.  That is, consistently with the object explained by Malcolm CJ in St Barbara Mines and Pritchard J in Brewer, it operates to demonstrate that the exemption is based on money being spent on the group as a whole, such that the broader statutory object of ensuring land available for mining is utilised and not warehoused, is not undermined.  In my respectful view, that is sufficient to give the words work to do.

16. Further, as explained above, in Archer J's discussion of the context and purpose of s 102(2), her Honour explained that the broad and correct construction of the provision accommodates the complexities of the genuine error or uncertainty that may well attend expenditure claims. That analysis serves to explain why an assumption of underspending is neither necessary nor appropriate in the approach to s 102(2)(h). The Attorney General accepts that is so in respect of the reasons set out at s 102(2) other than subparagraph (h). Yet, I would observe that honest error and uncertainty is at least as likely, if not more likely, to arise in the context of a reporting group of tenements.

17. It follows that the Attorney General's starting point that s 102(2)(h) reflects or embodies an assumption of under-expenditure, which was taken from a literal application of Archer J's obiter comment at [73(1)] of Carnegie, is a proposition I would respectfully decline to adopt.

18. As the Attorney General seeks to rely upon remarks about s 102(2)(h) in Carnegie to contend that its conclusion does not apply to subsection 102(2)(h), there are two other observations of Archer J referred to by the Attorney General that warrant further comment. In discussing the context and purpose of s 102, her Honour observed 'only the ground in s 102(2)(h) focuses on under-expenditure'.[60]  That remark is to be understood in its proper context.  Broadly, all the grounds in s 102(2) are focussed on under-expenditure in the sense that they are all grounds for exemption so as to excuse or permit under-expenditure. The feature of subparagraph (h) to which her Honour's comment was directed was simply that subparagraph (h) is uniquely the only ground of exemption which expressly rests upon actual expenditure, being expenditure on other tenements in the group. In my view, that contrasting feature does not provide a foundation for a conclusion that the ground is based upon an assumption of under-expenditure.

    [60] Carnegie [71].

19. Secondly, Archer J observed that subparagraph (h), unlike the other grounds in s 102(2), 'is applicable only in a retrospective application'.[61] That apparent feature of subparagraph (h) is not in my view necessarily apparent from the statutory provision itself. It arises unambiguously however from the definition of 'aggregate exploration expenditure' in s 102(2a) and reg 58A which requires the assessment to be made by reference to the combined operations report of actual expenditure lodged for the tenements approved under s 115A(4). The operation of those provisions necessitates the reporting of expenditure in advance of the exemption application. In that sense, an application under s 102(2)(h) is necessarily retrospective. However, it is possible that an exemption application may be made under one of the other grounds in s 102(2) after the lodging of an operations report. In my view, therefore, the contrasting feature of subparagraph (h) is not that it is retrospective but that, unlike the other grounds, it is necessarily retrospective in the sense I have explained.  Be that as it may, that distinguishing feature again provides no compelling basis for a conclusion that subparagraph (h) necessarily reflects or embodies an assumption that the tenement has been underspent.

    [61] Carnegie [73(3)].

20. The Attorney General appeared to contend that the implication of a requirement for under-expenditure also arises from a substantive difference between subparagraph (h) and the other subparagraphs.[62] I understood the submission to be as follows. Section 102(2) is concerned with 'reasons' for an exemption. All the subparagraphs other than (h) are open-textured and call for an evaluative decision that arises from the 'reason' for the exemption application. For example, under subparagraph (b), time may be required to purchase and erect a plant and machinery. That is the 'reason' for the application, and it triggers a consideration of whether the statutory power ought to be exercised in the particular circumstances. The basis for exemption in subparagraph (h) is different. Its language is prescriptive. It does not call for an evaluative decision. Rather, the discretion arises where two things exist; where there is a group of tenements approved under s 115A(4), and where the aggregate expenditure is of a sufficient magnitude. The Attorney General suggested that if those two express requirements were met, then the applicant was necessarily entitled to the exemption at least 'as a matter of practice'. It was then said that, if those two things were satisfied, there would be no 'reason' to apply for the exemption unless there had been under-expenditure. The implication of under-expenditure therefore supplies the 'reason'.

    [62] Transcript 16 May 2023, 16.

21. I do not accept that submission. First, in my view, the construction is not consistent with the plain meaning of the text. Further, it is not difficult to identify a potential 'reason' for an application under subparagraph (h). An application for exemption might be made under subparagraph (h) for the reasons explained by Archer J involving an applicant's concern about error or uncertainty. As I have noted, those concerns might be equally or perhaps more acutely applicable to an application under subparagraph (h). The more prescriptive and less open-textured nature of subparagraph (h) does not in my view provide a foundation to distinguish subparagraph (h) in the manner contended by the Attorney General. Nor does it mean that if the two express requirements of subparagraph (h) are satisfied, there is no longer a discretionary evaluation to be made. The use of the word 'may' in both s 102(1) and s 102(2) plainly denotes a discretion. Moreover, in my view, it is plain that even if the express requirements of subparagraph (h) are met, the application may yet not be granted. There may be a range of things to be considered including those matters expressly required by s 102(4). For example, the aggregate expenditure might only be sufficient by a miniscule amount, and the application might be advanced in the context of previous exemptions that have made no positive difference to advancing the object of the Act and after years of delinquent conduct on the part of the tenement holder. In my view it is plain that if the two express requirements of subparagraph (h) are met, then the discretion is enlivened. It is not the case that the satisfaction of those criteria entitles the applicant to an exemption thereby, in effect, removing the discretionary quality of the statutory power.

22. Significantly, given the attention paid by Archer J to s 102(2)(h), it is in my respectful view extremely unlikely that her Honour would have come to a conclusion as to the proper construction of s 102(2) that she considered did not apply to s 102(2)(h) without having made that plain.

23. In my view, the construction preferred by Archer J in Carnegie is equally applicable to s 102(2)(h) and I do not consider that there is any precondition of under-expenditure in the application of that provision.

24. For the reasons explained, I consider that Mr Power erred in his view that it is a requirement for an exemption from expenditure under s 102(2)(h) that the applicant has spent less than the statutory minimum expenditure. Accordingly, I would uphold Ground 1 and set aside the delegate's decision on that basis.

Grounds 2 and 3

1. Both Grounds 2 and 3 concern Regis's application, or purported application, for exemption under s 102(3). As explained at paragraph [12] above, the prescribed Form 18 application included a section headed 'Exemption Details' which contained a subheading in the margin '(g) Reasons for application'. Regis filled in that section effectively by copying or paraphrasing each subparagraph of s 102(2), and by copying s 102(3) and adding 'Other reasons include, but are not limited to, that the grant of the exemption is of benefit to the State'.

2. It was therefore plain on the face of the Form 18 application that Regis invoked as the basis for its application, both s 102(2) and s 102(3). However, the subsequent statutory declaration that followed each of the Form 18 applications contained the heading, 'Reasons under s 102(2)(h)' and went on to provide, under that heading, the detail of the combined mineral exploration reports and the actual expenditure for the tenements the subject of the group of tenements. There was no reference in the statutory declarations to any other subsection of s 102(2) other than subsection 102(2)(h), nor was there reference to s 102(3).

1. In Mr Power's reasons for his decision contained in his letter of 20 December 2022, he stated that:

   (a)Regis relied on s 102(3) in each of its applications;

   (b)Regis did not adequately state in its application that exemption was sought under s 102(3) as an alternative to s 102(2)(h);

   (c)the statutory declarations in support of the applications relied solely on s 102(2)(h); and

   (d)he did not consider whether a certificate of exemption should be granted under s 102(3).

2. The reference to 'applications' in Mr Power's letter can only be understood as a reference to the Form 18 application lodged by Regis.  The plain and natural understanding of Mr Power's reasons is as follows:

   (a)Mr Power was not required to consider an application by Regis under s 102(3) because Regis did not validly apply for exemption under s 102(3); and

   (b)Regis did not validly apply under s 102(3) because, notwithstanding that the Form 18 applications relied expressly on s 102(3) they did not state that it was relied upon in the alternative to s 102(2), and the subsequent statutory declarations made no reference to s 102(3).

3. Counsel for the Attorney General submitted in further support of the position adopted by Mr Power that the reason expressed by Regis in respect of s 102(3) in its Form 18 applications, 'that the grant of the exemption is of benefit to the State', was so broad and vague that in substance it was not a reason at all for the purposes of s 102(3), reg 54 or Form 18.[63] Counsel for the Attorney General pointed to reg 54(1B) which requires the Form 18 to be published on the Department's website. The evident purpose of that regulation is to enable members of the public to have information sufficient to enable them to make a decision as to whether to object. The bland assertion of a 'benefit to the State' was not sufficient to allow a person to make that assessment. In that context, the Attorney General pointed to Scurr v Brisbane City Council[64] (Scurr) and McKenzie v Minister for Lands[65] (McKenzie), where the sufficiency of a statutorily mandated notice was assessed by reference to the adequacy of information it provided to potential respondents to the notice.  I will return to those decisions later in these reasons. 

   [63] Supplementary written submissions of Amicus Curiae dated 2 June 2023, [15] - [16]; ts 87.

   [64] Scurr v Brisbane City Council (1973) 133 CLR 242.

   [65] McKenzie v Minister for Lands [2011] WASC 335; 45 WAR 1.

4. In contrast, Regis contended that it satisfied all the requirements for the making of an application under s 102(3) because it identified s 102(3) expressly in its Form 18 applications in which it provided a reason, that is, a benefit to the State. Regis accepted that its subsequent statutory declaration did not refer to s 102(3). However, the reason expressed in its Form 18 application ('benefit to the State') was sufficient, and the information provided in the statutory declaration provided a factual basis for the Minister to conclude that the grant of exemption would be of benefit to the State because it provided details of expenditure on the grouped tenements. Therefore, if (contrary to Regis's position under Ground 1) the grouped expenditure did not entitle Regis to an exemption under s 102(2)(h) because there had not been an under-expenditure, then the expenditure set out in statutory declarations might serve to demonstrate that an exemption was justified as a benefit to the State. Accordingly, Regis had validly made an application under s 102 and Mr Power erred by concluding otherwise and thereby failing to consider the merits of the application under s 102(3).

5. The Attorney General accepted in principle that if (as he contended) the grouped expenditure did not entitle Regis to an exemption under s 102(2)(h) because there had not been an under-expenditure, then the expenditure set out in statutory declarations might nevertheless demonstrate that an exemption was justified. In that regard, both Regis and the Attorney General made reference to the decision of this court in Siberia Mining Corporation Pty Ltd v O'Sullivan (Siberia),[66] upheld on appeal in Thompson v Siberia Mining Corporation Pty Ltd (Thompson).[67] Those decisions held that an 'other reason' under s 102(3) need not be of a different character to the reasons in s 102(2), and that circumstances which are advanced unsuccessfully in support of an exemption under s 102(2) may nevertheless justify the grant of an exemption under s 102(3).[68] Thus, a grouped expenditure that for some reason does not meet the requirements of s 102(2)(h) might nevertheless justify a grant of exemption under s 102(3). The Attorney General contended that Regis had nevertheless not made a valid application under s 102(3) because of the matters explained at paragraphs [68] and [69] above.

   [66] Siberia Mining Corporation Pty Ltd v O'Sullivan [2020] WASC 214.

   [67] Thompson v Siberia Mining Corporation Pty Ltd [2021] WASCA 115.

   [68] Siberia [64] - [67]; Thompson [59] - [63].

6. In the circumstances, it is necessary to consider what is required to lodge a valid exemption application on a proper construction of the Act and the Regulations. A central element of the competing positions is whether the content of Regis's statement in its Form 18 in respect of s 102(3) is sufficient to constitute a valid application. This is particularly important in respect of the opposing contentions as to whether Regis's stated 'reason' under s 102(3) in its application was adequate.

7. In Carnegie, Archer J said (citations omitted):[69]

   The only express requirement for a valid application under s 102 is the requirement that the application be made 'as prescribed'. The relevant requirements are that:

   (1)the application must be made in the prescribed form, Form 18.  Form 18 requires, among other things, the tenement holder to state the 'Amount of expenditure for which exemption is sought';

   (2)the application must be made by a particular time;

   (3)the prescribed fee must be paid; and

   (4)reasons for the application must be lodged.

   [69] Carnegie [62].

8. Although s 102(2) sets out the 'reasons' that may justify the grant of an exemption, those subsections are not directly concerned with what is required to constitute a valid application. The prescription for a valid application is contained in reg 54, reg 90 and Form 18. Form 18 requires the applicant to state reasons for the application. At paragraph [13] above I set out the passage from Plutonic which establishes that the reasons to be contained in a Form 18 application need not set out material facts and circumstances, and it is sufficient for the 'reasons' to be identified simply by reference to the Act and the relevant reason listed in s 102(2) or some other reason under s 102(3).[70] All that is required is content sufficient to enable the Warden to form a view as to whether the application falls within the scope of s 102.

   [70] Plutonic [19] - [20].

9. It is noteworthy that the marginal note (g) in Form 18 requires the provision of reasons under s 102(2), but there is no reference to reasons under s 102(3). The Attorney General submitted that there was no significance to the omission of s 102(3) from marginal note (g).[71]  Regulation 54 and Form 18 should be read liberally and purposively rather than pedantically.  There is therefore no qualitative or quantitative difference in the adequacy of reasons required to be given in a Form 18 application in respect of subsections (2) or (3).  In effect, the note in the margin of Form 18 should be read as if it were a reference to both subsections (2) and (3), even though it only makes reference to (2).

   [71] Transcript 16 May 2023, 85 - 86.

10. It appears to me that the marginal note in (g) of Form 18 refers to subsection (2) and not subsection (3) for the fairly straightforward reason that subsection (2) contains many alternatives, whereas subsection (3) is a singularly expressed plenary power, which does not require the identification of alternatives.  That appears to me to be consistent with the observations of Wheeler J in Plutonic.[72] That is, it is consistent with the notion that all that is required for the 'reasons' in Form 18, is content sufficient to enable the Warden to form a view as to whether the application falls within the scope of s 102.

    [72] Plutonic [19] - [20].

11. The breadth of the power under s 102(3) is evident in the statutory text. The exemption may be granted 'for any other reason which […] in the opinion of the Minister is sufficient to justify such exemption'. Subsection 102(7) provides that an exemption may be granted by the Minister contrary to the recommendation made by the Warden.

12. The breadth of the Minister's discretion in the context of the sufficiency of information provided in an exemption application was considered by the Full Court in ex parte Peko Exploration v GHK Mining Pty Ltd.[73] Before turning to that decision, it is convenient to note another aspect of the exemption application process as reflected in the statutory regime. The effect of s 102(5), (6) and (7) is that if an objection to the exemption application is lodged, then the application is first heard by the Warden. The Warden's recommendation, together with various documents, is then sent to the Minister who determines the application in the exercise of the broad discretion conferred by s 102(7). If there is no objection, then the application goes directly to the Minister. It follows that if there is an objection, then the usual processes of a hearing before the Warden are invoked. Those processes are generally provided for in the Act and the Regulations. As it happens, in this matter, no objection was lodged.

    [73] Minister for Mines, the Honourable Moore MLC; Ex parte Peko Exploration Ltd (Applicant) v GHK Mining Pty Ltd (Intervener) (Unreported, WASC Library No BC9706155, 15 October 1997, 14 November 1997) (Peko Exploration).

13. In Peko Exploration, Peko applied for exemption from expenditure under s 102(1). As required, Peko lodged a Form 18 application and a statutory declaration. The application for exemption was the subject of objection by GHK. GHK also filed a plaint for forfeiture on the basis of Peko's failure to meet expenditure requirements. The objection to Peko's application for exemption and GHK's plaint for forfeiture were heard together before the Warden. For the purposes of that hearing, Peko filed a notice of defence in which it set out its response to the objection and plaint.

14. At the hearing, counsel opened the case for Peko on the basis of reliance upon s 102(2)(e) and s 102(3). In respect of s 102(3) it was submitted before the Warden that the total circumstances justified an exemption because the tenement was comprised within a project which involved more than one tenement, and the expenditure on tenements comprised in that project would have been such as to satisfy the expenditure requirements in relation to the tenement concerned had the aggregate expenditure been apportioned. Peko sought to lead evidence at the hearing of that expenditure. The matters relied upon in respect of s 102(2)(e) had been part of the original application, however the matters relied upon in respect of s 102(3) had not been previously raised. GHK objected to the evidence being led in support of an exemption under s 102(3) as the issue was not the subject of the original exemption application, nor was it in the statutory declaration or Peko's defence to the plaint. The Warden refused to allow the evidence. The Warden would only allow evidence pertaining to issues properly particularised in the relevant forms completed by the parties in accordance with the Regulations. The essential question was whether, in the application for exemption (including the statutory declaration) or the notice of defence, Peko gave adequate notice of its intention to rely on expenditure on adjacent tenements. Peko contended that the general matters contained in the application, statutory declaration and defence were sufficient to give notice of the intention to rely upon expenditure on other tenements in support of the application for exemption. The Warden concluded, and the Full Court agreed, that those documents did not in fact give notice of the intention. The Full Court upheld the Warden's decision to exclude the evidence on that basis.

15. I observe at this point that for the purposes of the hearing before the Warden, both the Warden and the Full Court were concerned not only with the content of the Form 18 and the statutory declaration, but also the forms and documents generated for the hearing such as the notice of defence.

16. The Warden rejected Peko's position and recommended against the grant of an exemption to the Minister. Peko then sought to make representations directly to the Minister to persuade the Minister to exercise the statutory discretion in favour of the grant of exemption. The Minister declined to have regard to Peko's representations and rejected the application for exemption. The Full Court considered whether the Minister is empowered under the Act to receive information, relevant to applications for exemption from expenditure conditions and forfeiture, from persons other than the Warden acting pursuant to the mechanisms provided by the Act. Ipp J (with whom Malcolm CJ and Kennedy J agreed) explained:[74]

    There is nothing in the Mining Act which expressly empowers the Minister to receive submissions in connection with applications for exemption from expenditure conditions and forfeiture by reason of failure to comply with expenditure conditions, other than indirectly through the Warden pursuant to s 102(6) and s 98(6). Nevertheless, there are indicia in the Act which suggest that Parliament contemplated that the Minister would be entitled to inform himself or herself as to the relevant issues in whatever way he or she wishes (subject, of course, to procedural fairness).

    [Section] 102(7) empowers the Minister to grant a certificate of exemption irrespective of the findings or recommendations of the Warden. [Section] 102(3) provides that, notwithstanding that the reasons given for an application for exemption are not those expressly stipulated in s 102(2), a certificate of exemption may be granted "for any other reason which may be prescribed or which in the opinion of the minister is sufficient to justify such exemption". Thus, an extremely wide discretionary power is given to the Minister in regard to applications for exemption, and it would be inconsistent with that power for the Minister to be limited in any way in obtaining information relevant to its exercise.

    [74] Peko Exploration 15 - 16.

17. Notwithstanding that ample power, counsel for the Attorney General submitted that Mr Power did not err in failing to have regard to Regis's application under s 102(3). I shall deal with the reasons given by Mr Power and those advanced on behalf of the Attorney General for rejecting the contention of error.

18. First, it was said that although the Form 18 application relied expressly upon s 102(3), it did not say expressly that it was relied upon in the alternative to s 102(2).[75] Counsel for the Attorney General accepted at the hearing that in the circumstances, reliance on s 102(3) could only be, and was necessarily, in the alternative to reliance upon s 102(2). In my view, the contention that Mr Power was entitled to ignore Regis's application under s 102(3) because the Form 18 application did not state that it was advanced in the alternative is without merit. It elevates form and pedantry to impermissible heights.

    [75] Outline of submissions of Amicus Curiae dated 25 April 2023, [64] - [65].

19. Secondly, it was undisputed that the statutory declaration made no reference to s 102(3) and was directed solely to s 102(2)(h). If nothing else had occurred beyond the provision of the statutory declaration, then it would be quite understandable that Mr Power would have limited his consideration to s 102(2)(h). It would have been very difficult, if not impossible, for Mr Power to appreciate in those circumstances that Regis sought to have the factual matters set out in the statutory declaration advanced in support of s 102(3) to which it made no reference in that document (if that indeed is what Regis sought to achieve).

20. However, the statutory declaration was not the end of the matter.  The Full Court in Peko made plain that the Minister (and therefore the delegate) is empowered to receive further and fresh information in support of an application.  Here, the Minister's delegate not only received but invited such information, and moreover, advised Regis that the information it provided in response to that information would be considered in the exercise of the statutory discretion. It is not in dispute that fulsome information was then provided, making it clear that the application under s 102(3) was based upon the expenditure of the grouped tenements, and that was said to be in the economic interests of the State.[76]  Mr Power's invitation was a correct reflection of the breadth of the statutory power as explained in Peko.  The subsequent decision to disregard the information provided is surprising.  More importantly, it was inconsistent with the statutory power, and was an error.

    [76] Applicant's outline of submissions dated 16 March 2023, [12]; Affidavit of Nicole Simone Johnston affirmed 27 July 2022, [15], "NSJ-03", "NSJ-04", "NSJ-05", "NSJ-15"; Outline of submissions of Amicus Curiae dated 15 April 2023, [33].

21. Thirdly, it was submitted that the reason provided by Regis in its Form 18 application - the provision of a benefit to the State - was so vague as to constitute no reason at all.  In my view, and in light of the observations of Wheeler J in Plutonic, the reason, though undoubtably vague, was sufficient to trigger an application under s 102(1) and to empower the delegate to grant an exemption under s 102(3). Regis of course took the risk that its bald and unparticularised reason would be regarded as just that - and therefore would not merit the grant of an exemption. However, having triggered an application under s 102 by its Form 18, the Minister or the delegate was empowered to seek further information regarding the reason. As I have noted, the information was provided. In my view, it was then an error to decline to consider any application pursuant to s 102(3).

22. As noted, counsel for the Attorney General placed reliance upon the decisions in Scurr and McKenzie.  In those decisions, the High Court and this court respectively, considered the adequacy of certain notices required to be given under different statutes.  Scurr was concerned with giving notice to the public of an application of a proposed development.  The statute required the notice to 'set out particulars of the application'.  Both courts undertook the relevant exercise of statutory construction in assessing the adequacy of the notices, purposively; that is, by examining the statutory text in the context of the purpose of the notice and in the context of the particular legislative scheme.  In McKenzie, Martin CJ considered the adequacy of a notice of intention to effect compulsory acquisitions of land - a power which creates consequences that his Honour described as 'profound'.  The statutory notice required 'a description of the land'.  The meaning of those words was to be construed having regard to the profound consequences of the exercise of the power.

23. I put to one side whether the conclusion drawn from those cases urged on behalf of the Attorney General goes beyond the scope of what the Full Court in Plutonic indicated was sufficient for a Form 18 application (although I am inclined to think it is).  The notices and regulatory context considered in those cases were quite different.  The difference in the text of the statutes and the significance of the power to be exercised is such that the comparison is of limited utility.  As Martin CJ said in McKenzie, in each case the notice should be construed as requiring the level of particularity which is necessary to meet the evident legislative purpose.  With respect, that was the analysis correctly carried out by Wheeler J in Plutonic.  Moreover, as I observed above in the consideration of Peko, and in contrast to the legislative schemes considered in the cases relied upon by counsel for the Attorney General, the statutory scheme here, in the event of an objection, will trigger further processes before the Warden in which the regulatory scheme facilitates the provision of far more detailed information.  It may be accepted that, at the initial stage, a potential objector may have fairly scant information on which to make a decision as to whether to object.  But the processes available before the Warden provide ample opportunity to interrogate the matter and review any decision to maintain an objection.

1. Counsel for both Regis and the Attorney General made reference to the High Court decision in Forrest & Forrest Pty Ltd v Wilson.[77]  In my view that case is of limited relevance to the issues that arise here.  The High Court there was concerned with the special canons of construction that govern the grant of rights to exploit the State's mineral wealth in light of express wording in the statute.  In my respectful assessment, nothing in that case undermines or disturbs the analysis in Plutonic or Peko that bear more directly upon the operation of s 102 and reg 54.

   [77] Forrest & Forrest v Wilson [2017] HCA 30; (2017) 262 CLR 510.

2. For those reasons I would uphold Grounds 2 and 3.  The decisions of the Minister's delegate, Mr Power, to refuse the applications should be quashed. I shall hear from the parties on the precise form of the orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

YM

Associate to the Honourable Justice Solomon

7 AUGUST 2023