Richmond v Warden Thomas William McPhee

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   RICHMOND -v- WARDEN THOMAS WILLIAM MCPHEE [2025] WASC 387

CORAM:   SEAWARD J

HEARD:   17 JUNE 2024

DELIVERED          :   19 SEPTEMBER 2025

FILE NO/S:   CIV 2404 of 2023

BETWEEN:   WILLIAM ROBERT RICHMOND

Applicant

AND

WARDEN THOMAS WILLIAM MCPHEE

Respondent

REGIS RESOURCES LIMITED

Other Party


Catchwords:

Judicial Review - Mining Act - Exploration Licence - Application for writ of certiorari and writ of mandamus - Application for declaration - Jurisdiction of warden to hear application - Requirements for a valid statement accompanying an application for an exploration licence - Requirement that the statement specify the details of programme of work proposed to be carried out in the area of land the subject of the application - No requirement that the statement specify the details of the programme of work proposed to be carried out for a 5-year period

Legislation:

Mining Act 1978 (WA), s 58(1)(b)
Mining Regulations 1981 (WA), reg 137, reg 165(4)

Result:

Ground 1 of the application upheld

Category:    A

Representation:

Counsel:

Applicant : Mr E Heenan SC & Mr JL Winton
Respondent : No appearance
Other Party : Mr AJ Papamatheos SC & Ms L Holland

Solicitors:

Applicant : Kavenagh Legal
Respondent : No appearance
Other Party : DLA Piper

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593

Azure Minerals Ltd v D & G Geraghty Pty Ltd [2022] WAMW 27

Blue Ribbon Mines Pty Ltd v Roy Hill Infrastructure Pty Ltd [2022] WASC 362

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216

Commonwealth Bank of Australia v Garuda Aviation Pty Ltd [2013] WASCA 61; (2013) 45 WAR 92

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135

Ex parte Aberfoyle Resources Ltd (Unreported, Full Court of the Supreme Court of Western Australia, Library No 7612, 19 April 1989, BC8901132)

Ex parte Hot Holdings Pty Ltd, Hot Holdings Pty Ltd v Creasy (1996) 16 WAR 428

Forrest & Forrest Pty Ltd v O'Sullivan [2020] WASC 468

Forrest & Forrest Pty Ltd v The Minister for Mines and Petroleum [2018] WASCA 32; (2018) 53 WAR 156

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

Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120

Golden Pig Enterprises Pty Ltd v O'Sullivan [2021] WASC 396

GS v MS [2019] WASC 255

Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149

Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76

Kirk v Industrial Court of New South Wales [2010] HCA 1

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Details
Case
[2025] WASC 387
Decision Date

CaseChat Overview and Summary

The case of Richmond v Warden McPhee involves William Robert Richmond, who sought to obtain exploration licences for mineral exploration in Western Australia. Regis Resources Ltd lodged objections to Richmond's applications, arguing that the statements accompanying the applications did not comply with the requirements of the Mining Act 1978 (WA). The Warden, Thomas William McPhee, upheld the objections, concluding that Richmond's applications were invalid as the statements did not specify the proposed method of exploration for a five-year period. Richmond subsequently applied for judicial review, contending that the Warden's decision was in jurisdictional error.

The primary legal issue before the court was whether the Warden's decision to dismiss Richmond's applications for non-compliance with the Mining Act was a jurisdictional error. Richmond argued that the statements accompanying his applications did comply with the requirements of the Mining Act and that the Warden's decision to dismiss the applications for non-compliance constituted a jurisdictional error. Richmond further contended that the Warden had no jurisdiction to award costs to Regis if the applications were invalid. The court had to determine whether the Warden's interpretation of the requirements of the Mining Act was correct and whether the Warden had jurisdiction to award costs in such circumstances.

The court found that the Warden's decision to dismiss Richmond's applications for non-compliance with the Mining Act was a jurisdictional error. The court held that the Mining Act did not require the statements accompanying the applications to specify a proposed method of exploration for a five-year period. The court concluded that the Warden's interpretation of the requirements of the Mining Act was incorrect, and therefore, the Warden's decision to dismiss the applications was made in jurisdictional error. The court further held that the Warden did not have jurisdiction to award costs to Regis if the applications were invalid, as the Warden's jurisdiction was limited to making a recommendation to the Minister regarding the validity of the applications.

The final orders of the court were that the Warden's decision to dismiss Richmond's applications for non-compliance with the Mining Act was quashed, and the applications were remitted to the Warden for further consideration. The court also declared that the statements accompanying the applications did comply with the requirements of the Mining Act and that the Warden did not have jurisdiction to award costs to Regis. The costs of the judicial review application were to be borne by Richmond.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The text of the statement provided as follows:BackgroundWilliam Robert Richmond is a private individual set up to explore for mineral resources in Western Australia. William Robert Richmond's aim is to draw on the vast pool of underutilised talent and equipment to search for, find and commercialise previously unknown resource deposits.Proposed Method of Exploration and Exploration ProgramThe goal for this exploration strategy is to discover economic mineralisation. William Robert Richmond primarily explores for gold and base metals but will consider exploring for all other viable commodities.The initial phase of year 1 for exploration will include:Proposed first year activities and expenditure - 49 Blocks The statement was accompanied by a number of attachments, including letters, bank statements, appraisal documents and maps. Regis lodged its notice of objection on 24 September 2020. Whilst the objections relate to a number of different matters, the relevant objection for present purposes is as follows:4.Further, or alternatively:4.1application E38/3532 does not comply with the Mining Act 1978 (WA) and the Mining Regulations 1981 (WA); and4.2William Robert Richmond has not complied with the Mining Act 1978 (WA) and the Mining Regulations 1981 (WA) in relation to application E38/3532. Particulars of the objection were ordered and then filed, which relevantly provide:16Application E38/3532 should be refused pursuant to sections 59(6) and/or 111A of the Act because the statement lodged in support of application E38/3532 does not set out the information required under section 58(l)(b) of the Act because it fails to specify:16.1 the financial and technical resources available to the Applicant as required by subsection 58(l)(b)(iv) of the Act; and16.2 the proposed method of exploration of the land the subject of the application as required by sub‑section 58(l)(b)(i).17 The Objector otherwise does not admit the matters particularised at paragraphs l to 8 of the Particulars and will put the Applicant to proof as to whether:17.l application E38/3532 complies with the Act; and17.2 the Applicant has complied with the Act in relation to application E38/3532. Mr Richmond lodged application E38/3554 dated 11 November 2020. This application was also accompanied by a statement purporting to be a statement complying with the requirements of s 58(1)(b) of the Mining Act, and it was in substance in identical terms to that lodged in application E38/3532. Regis lodged its notice of objection on 17 December 2020. The objection and the particulars of the objection are, in substance, in identical terms to the documents lodged for application E38/3532. Regis filed an interlocutory application in relation to both exploration licence applications/objections on 4 October 2022 seeking an order that the question of whether Mr Richmond's applications were compliant with the requirements of s 58(1) of the Mining Act, and therefore valid applications for which there is jurisdiction to grant, be heard and determined as a preliminary issue.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applications and the objections were heard by Warden McPhee, who delivered the following two decisions:(a)the Jurisdiction Decision,[1] whereby the warden upheld the objections and concluded that the applications did not comply with the requirements of the Mining Act because although each was accompanied by a purported statement filed in accordance with s 58(1)(b) of the Mining Act, the statements did not specify a programme of work proposed to be carried out for a period of five years; and(b)the Costs Decision,[2] whereby the warden concluded that notwithstanding he did not have jurisdiction to hear the applications, he did have jurisdiction to award costs to Regis. The warden then proceeded to order that Mr Richmond pay Regis' costs to be taxed if not agreed.[1] William Robert Richmond v Regis Resources Ltd [No 2] [2023] WAMW 23.[2] William Robert Richmond v Regis Resources Ltd [No 3] [2023] WAMW 44. Mr Richmond filed an application for judicial review alleging jurisdictional error on the part of the warden in concluding that the statements accompanying the applications did not comply with the requirements of s 58(1)(b) of the Mining Act. In the alternative, Mr Richmond alleges jurisdictional error on the part of the warden in concluding that, if the applications are invalid, he nonetheless had jurisdiction to award costs to Regis. Mr Richmond seeks writs of certiorari and mandamus, in addition to declarations that the statements comply with the requirements of s 58(1)(b) of the Mining Act and the applications are valid applications that the warden has the jurisdiction to hear the applications pursuant to s 59(4) of the Mining Act. For the reasons set out below, I have concluded that the statements accompanying the applications did comply with the requirements of s 58(1)(b) of the Mining Act, and therefore it was a jurisdictional error on the part of the warden to conclude that the statements were non‑compliant and that he did not have jurisdiction to hear the applications and make a recommendation to the Minister. Prior to outlining the background facts and the decision of the warden, it is helpful to outline the legislative scheme of the Mining Act. The Mining Act does not contain an objects clause. However, the scheme of the Mining Act was described in Forrest & Forrest Pty Ltd v The Minister for Mines and Petroleum[3] as follows (in the context of a miscellaneous licence):[3] Forrest & Forrest Pty Ltd v The Minister for Mines and Petroleum [2018] WASCA 32; (2018) 53 WAR 156 [64].In St Barbara Ltd v Minister for Energy, Resources, Industry & Enterprise,[4] Steytler P (Buss JA and Newnes AJA agreeing) outlined the general scheme of the Act in the following terms:(1)The principal object of the Act is that of regulating access to and exploitation of the State's mining resources.(2)The Act is to be administered by the Minister: s 10(1). The Minister is assisted by a department of the Public Service of the State, encompassing a number of officers, including mining registrars: s 11. The appointment of persons holding office as magistrates as wardens of mines is provided for by s 13(1).(3)All land defined in s 8 as 'Crown land', but not the subject of a mining tenement, is open for mining: s 18. However, the Minister may, by an instrument in writing under his hand, exempt any land, not being private land or land that is the subject of a mining tenement or of an application therefor, from mining or from a specified mining purpose or from the Act or a specified provision of the Act: s 19(1)(a). (4)Part IV of the Act provides for the grant of mining tenements. These might take the form of prospecting licences (div 1), exploration licences (div 2), retention licences (div 2A), mining leases (div 3), general purpose leases (div 4) and miscellaneous licences (div 5).(5)Different regimes are provided for depending upon the nature of the mining tenement applied for.(6)In the case of an application for an exploration licence, a retention licence, a mining lease or a general purpose lease, the application comes first before a mining registrar (where there is no objection) or a mining warden (where there is an objection). The registrar or warden, as the case may be, makes a recommendation to the Minister, who decides the application: s 57(1), s 59(2), s 59(4) - (6) (exploration licences); s 70B(1), s 70D(2), s 70D(4) - (6) (retention licences); s 71, s 75(2), s 75(4) - (6) (mining leases); s 86(1), s 86(4) (general purpose leases).(7)On the other hand, in relation to prospecting licences and miscellaneous licences, the decision is made by a mining registrar or warden (s 40(1), s 42, s 91(1), s 92), subject to a right of appeal to the Minister against a refusal or a grant on unreasonable conditions (s 56, s 94(3) - (4)).(8)It is plain from the scheme of the Act that the ultimate decision making power rests largely with the Minister.[4] St Barbara Ltd v Minister for Energy, Resources, Industry & Enterprise [2008] WASCA 248 [22] ‑ [24], [26].

Ratio Decidendi

Legal Principle Established

Jurisdictional error refers to a breach of an express or implied condition of a statutory conferral of decision‑making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to the exercise of that authority by statute.[24] Accordingly, a decision will involve jurisdictional error if the decision is made outside the limits of the powers and functions given to the decision‑maker.[25][24] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [2].[25] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163]. As observed by the High Court in Kirk v Industrial Court of New South Wales,[26] it is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error. However, relevantly for present purposes, a misunderstanding of the relevant law resulting in the mistaken denial of the existence of jurisdiction, and acting on a mistaken assumption or opinion as to the existence of a jurisdictional fact, may amount to jurisdictional error on the part of an administrative decision‑maker.[27][26] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71].[27] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [3]. The expression 'jurisdictional fact', in the context of the exercise of a statutory power, describes a criterion of fact which must be satisfied in order to enliven the power.[28] If that criterion of fact is not satisfied, then a decision purportedly made in exercise of the power will have been made without the necessary statutory authority required of the decision‑maker.[29] The question of whether or not a matter is properly characterised as being a 'jurisdictional fact' is a question of statutory construction.[30] [28] Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 [43]; Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2018] WASCA 27; (2018) 52 WAR 281 [141].[29] Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 [43]; Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2018] WASCA 27; (2018) 52 WAR 281 [142].[30] Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2018] WASCA 27; (2018) 52 WAR 281 [144]. In addition, an error will only be jurisdictional if the error was material to the decision that was made. Some errors (eg bias or unreasonableness in the final result) will, of their nature, always be jurisdictional errors. However, for most cases an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could (not would) have been different if the error had not occurred.[31] What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error, but the threshold is not demanding or onerous.[32]