Richmond v Warden Thomas William McPhee
[2025] WASC 387
•19 SEPTEMBER 2025
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; (2010) 239 CLR 531
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321
Mohammadi v Bethune [2018] WASCA 98
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80
NDA v The State of Western Australia [2023] WASCA 50
Oceanic Life Ltd v Chief Commissioner of Stamp Duties [1999] NSWCA 416; (1999) 154 FLR 129
Onslow Resources Ltd v The Hon William Joseph Johnston MLA in capacity as Minister for Mines and Petroleum [2021] WASCA 151
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Queensland Fish Board v Bunney [1979] Qd R 301
R v Hickman [1945] HCA 53; (1945) 70 CLR 598
Re Adams & Tax Agents' Board (1976) 12 ALR 239
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611
Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2018] WASCA 27; (2018) 52 WAR 281
St Barbara Ltd v Minister for Energy, Resources, Industry & Enterprise [2008] WASCA 248
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Toolonga Mineral Sand Pty Ltd v Callum and Belinda Carruth [2023] WAMW 6
True Fella Pty Ltd v Pantoro South Pty Ltd [2022] WAMW 19
Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259 (S)
William Robert Richmond v Regis Resources Ltd [No 2] [2023] WAMW 23
William Robert Richmond v Regis Resources Ltd [No 3] [2023] WAMW 44
SEAWARD J:
Introduction
In August and November 2020, the applicant, William Richmond (Mr Richmond), applied for two exploration licences over land located in the Mt Margaret mineral field in the goldfields, pursuant to s 57(1) of the Mining Act 1978 (WA) (Mining Act).
The other party, Regis Resources Limited, is the holder of miscellaneous licences over some of the same land the subject of Mr Richmond's applications. Regis lodged objections to those applications. The objections alleged that the applications did not comply with the requirements of the Mining Act, and therefore there was no jurisdiction for the warden to hear the applications and make a recommendation to the Minister.
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.
Legislative scheme
Prior to outlining the background facts and the decision of the warden, it is helpful to outline the legislative scheme of the Mining Act.
Objects and purpose
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].
The primary object of the Mining Act was described in the following terms by Buss JA (with Wheeler and Pullin JJA agreeing) in Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd:[5]
70The primary object of the Mining Act is to encourage and promote the prospecting and exploration for, and mining of, mineral deposits in the State. See The Commonwealth of Australia v The State of Western Australia (1999) 196 CLR 392 per Kirby J at 450 - 451 [172]. Part III of the Act specifies land which is 'open for mining'; that is, relevantly, land which may be made the subject of an application for a mining tenement, subject to and in accordance with the Act. Part III distinguishes between and makes particular provision for Crown land, public reserves and private land. The primary object of the Act is sought to be carried into effect by making available specific tenements for, relevantly, prospecting, exploration and mining, subject to reasonably stringent conditions, including conditions with respect to expenditure, the reporting of the discovery of minerals of economic interest, and the rehabilitation of the surface of land which is disturbed in the course of operations conducted under the tenement in question. See Nova Resources NL v French (1995) 12 WAR 50 per Rowland J (with whom Kennedy and Pidgeon JJ agreed) at 57 ‑ 58.
…
120It is also an object of the Mining Act that, in general, the holder of a mining tenement should carry out prospecting, exploration or mining, as the case may be, on the relevant tenement. This is sought to be achieved by requiring the holder to comply with the prescribed expenditure requirements applicable to the relevant tenement.
[5] Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403.
The above description of the primary object of the Mining Act was also adopted by the Court of Appeal in Forrest & Forrest Pty Ltd v The Minister for Mines and Petroleum.[6]
Exploration licences
[6] Forrest & Forrest Pty Ltd v The Minister for Mines and Petroleum [2018] WASCA 32; (2018) 53 WAR 156 [65].
Pursuant to s 57 of the Mining Act the Minister may, on the application of any person, and after receiving a recommendation of the mining registrar or the warden in accordance with s 59, grant to that person a licence to be known as an exploration licence.
Section 57(2) provides that the area of land in respect of which an exploration licence may be granted shall be a block or blocks. Section 56C provides that a block is the result of dividing the surface of the Earth into graticular sections by reference to the latitude and longitude of the Earth. Section 57(2) ‑ s 57(2f) address the requirements regarding these blocks of land.
Section 57(3) provides that the mining registrar or warden shall not recommend the grant of an exploration licence unless satisfied that the applicant is able to effectively explore the land in respect of which the application has been made.
Section 58 of the Mining Act relevantly provides:
(1) An application for an exploration licence —
(a) shall be in the prescribed form; and
(b) shall be accompanied by a statement specifying —
(i) the proposed method of exploration of the area in respect of which the licence is sought; and
(ii) the details of the programme of work proposed to be carried out in such area; and
(iii) the estimated amount of money proposed to be expended on the exploration; and
(iv) the technical and, subject to subsection (1aa), financial resources available to the applicant;
and
(c) shall be accompanied by the amount of the prescribed rent for the first year of the term of the licence or portion thereof as prescribed; and
(d) shall be lodged in the prescribed manner; and
(e) shall be accompanied by the prescribed application fee.
…
(3) An applicant shall at the request of the mining registrar or warden furnish such further information in relation to his application, or such evidence in support thereof, as the mining registrar or warden may require but the mining registrar or warden shall not require information or evidence relating to assays or other results of any testing or sampling that the applicant may have carried out on the land the subject of his application.
(4) Within the prescribed period the applicant shall serve such notice of the application as may be prescribed on the owner and occupier of the land to which the application relates and on such other persons as may be prescribed.
Section 59 provides for the determination of an application for an exploration licence. Where no objection is lodged to the application, the mining registrar shall forward a report to the Minister which recommends the grant or refusal of the exploration licence and sets out the reasons for that recommendation.[7] The mining registrar shall recommend the grant of the exploration licence if the mining registrar is satisfied that the applicant has complied in all respects with the provisions of the Mining Act, or shall recommend the refusal if not so satisfied.[8]
[7] Mining Act, s 59(2).
[8] Mining Act, s 59(3).
Where an objection is lodged, s 59(4) provides that the warden shall hear the application for the exploration licence and may give an objector an opportunity to be heard. The warden shall then forward to the Minister the notes of evidence, any maps or documents referred to in the notes, and a report which recommends the grant or refusal of the licence and the reasons for the recommendation.[9]
[9] Mining Act, s 59(5).
The Minister may, on receipt of the report of the mining registrar or the warden, grant or refuse the exploration licence as the Minister thinks fit, and irrespective of whether the report recommends the grant or refusal of the exploration licence and irrespective of whether the applicant has or has not complied in all respects with the provisions of the Mining Act.[10]
[10] Mining Act, s 59(6).
Every exploration licence granted by the Minister is subject to the conditions contained in s 63 of the Mining Act and such other conditions as imposed by the Minister. The rights conferred on the holder of an exploration licence are set out in s 66 of the Mining Act.
Section 61(1) of the Mining Act provides that an exploration licence shall, subject to the Mining Act, remain in force for a period of five years. Section 61(2) provides that the Minister may, if satisfied that a prescribed ground for extension exists, extend the term of an exploration licence (a) by one period of 5 years and (b) by a further period or periods of 2 years, as to the whole or any part of the land and on such terms and conditions as the Minister thinks fit.
Section 62(1) of the Mining Act provides that during the currency of an exploration licence the holder shall comply with the prescribed expenditure conditions.
Section 63A details when an exploration is liable to forfeiture. The various matters set out include the non‑payment of the prescribed rent or royalty, the non‑compliance with the terms of the conditions of the exploration licence (including expenditure conditions) and if reports required under s 68(3)[11] or s 115A[12] of the Mining Act are not filed in accordance with the Act.
[11] Being a report of all work done on, and money expended in connection with, exploration in the area the subject of the licence during the relevant period.
[12] Being a mineral exploration report containing records of the progress and results of programmes involving geological sciences, drilling programmes and activities involving the collection of samples that have been carried out in search for minerals.
Provision is made in s 65 for the surrender of a certain number of blocks the subject of an exploration licence if an extension of its term is granted under s 61 of the Mining Act.
The holder of an exploration licence has the right to apply for one or more mining leases or general purpose leases in respect of any part of the land the subject of the exploration licence.[13]
[13] Mining Act, s 67.
Section 105A of the Mining Act provides that an applicant who first complies with the 'initial requirement' in relation to an application for a mining tenement in respect of the same land has, subject to the Mining Act, priority over every other applicant. The reference to the 'initial requirement' in the context of an application for an exploration licence, is a reference to lodging the application in the manner prescribed by reg 59A of the Mining Regulations 1981 (WA) (Mining Regulations).[14]
[14] Mining Act, s 105A(4)(a).
Finally, the holder of a mining tenement may surrender the tenement in whole or in part.[15]
Costs
[15] Mining Act, s 95.
The relevant provisions regarding the award of costs by a warden are contained in pt VIII of the Mining Regulations.
Regulation 165 relevantly provides as follows:
(1) Except as ordered under this regulation, regulation 139 or 142, each party is to bear the party’s own costs.
(2) In addition to the power to award costs under regulations 139 and 142, a warden hearing and determining proceedings under Division 2, including interlocutory applications related to those proceedings, may make an order for a party’s costs to be paid by another party.
(3) One order under subregulation (2) may be made in relation to 2 or more proceedings heard and determined on the same occasion under Division 2 even if those proceedings are not joined.
(4) Subject to subregulation (6) and in addition to the power to award costs under regulation 139, a warden hearing and determining proceedings under Division 3 may make an order for costs against a party if the warden is satisfied that the party —
(a) frivolously or vexatiously commenced or defended the proceedings, or any step in the proceedings; or
(b) otherwise occasioned undue delay in the proceedings.
(5) One order under subregulation (4) may be made in relation to 2 or more proceedings heard and determined on the same occasion under Division 3 even if those proceedings are not joined.
(6) If a warden makes an order for the payment of costs, those costs shall be in accordance with the scale of costs set out in Schedule 4.
(7) The Magistrates Court (Civil Proceedings) Rules 2005 Part 15 Division 1 apply in relation to proceedings with the necessary modifications …
Division 2 of pt VIII of the Mining Regulations is concerned with applications under s 96(1)(b) and s 98 of the Mining Act, being applications for forfeiture, whilst div 3 of pt VIII of the Mining Regulations is concerned with objections under pt IV of the Mining Act.
Neither reg 139 (default determination) nor reg 142 (settlement, admission and discontinuance) are relevant here.
Regulation 137(1) defines various terms used in pt VIII of the Mining Regulations. Relevantly, the following terms defined:
determination means a decision, order or recommendation;
hearing means —
(a) a mention hearing; or
(b) the hearing of an interlocutory application; or
(c) the substantive hearing of proceedings;
proceedings —
(a) when used in Division 2, means proceedings in respect of an application under section 96(1)(b) or 98; and
(b) when used in Division 3, means proceedings relating to an application under Part IV in relation to which an objection has been lodged; and
(c) otherwise means proceedings under this Part.
Regulation 137(2) provides that:
For the purposes of this Part, proceedings are taken to have commenced when —
(a) an application under section 96(1)(b) or 98; or
(b) an objection,
has been lodged.
The applications and the objections
Application E38/3532
Mr Richmond lodged application E38/3532 dated 26 August 2020. The application was accompanied by a statement purporting to be a statement complying with the requirements of s 58(1)(b) of the Mining Act.
The text of the statement provided as follows:
Background
William 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 Program
The 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
ACTIVITY
EXPENDITURE
Desktop studies, compile historical WAMEX reports and data, compile and re-process open file GSWA data sets (geology, geochemistry, geophysics), remote sensing and data processing, open file seismic reflection data compilation and re-processing
$15,000
Site reconnaissance and geological mapping
$10,000
Geophysical surveying: gravity transects and infill, magnetotelluric transects, passive seismic transects
$20,000
Geological Management
$5,000
TOTAL
$50,000
These activities are expected to occupy the first phase of exploration during which time it is anticipated that the minimum expenditure requirement of $49,000, prescribed under the Mining Act 1978 (as amended), will be exceeded.
Subsequent phases will depend on the results obtained from previous phase of exploration.
Technical Resources
William Robert Richmond draws on a diverse bouquet of contract technical services used by Resource Potential Pty Ltd (Respot). Respot is a consulting and contracting business specialising in geophysical survey design, acquisition, processing, modelling, inversion, data integration, interpretation and drill hole targeting. The Respot team are trained and mentored by Dr Jayson Meyers. Dr Jayson Meyers has a BSc in geology, MSc in geochemistry and a PhD in geophysics. The understanding of 3 crucial elements of exploration allows Respot to tailor exploration programs for client specific projects. The experienced team at Respot will assist the project at a variety of development stages, from tenement evaluation and initial exploration program planning, to drill targeting and resource definition.
Other team members include, but are not limited to, hydrologists, mining engineers and metallurgists, many of whom are corporate members of ASEG and AIG, and will be used, when required, to assist Dr Jayson Meyers with performance of William Robert Richmond work programs, such as:
i. detail geological and structural mapping;
ii. target generation and assessment of tenements;
iii. geochemical surveys (rock chip sampling and Davis Tube testing);
iv. RAB and RC drilling of regional exploration targets;
v. resource drill outs (using RC and diamond drilling); and
vi. pre-feasibility to bankable feasibility on projects.
Financial Resources
William Robert Richmond has sufficient financial resources available to comply with the prescribed expenditure across the tenement (when granted) for the anticipated life of the tenement.
Furthermore, regard has been taken for William Robert Richmond's entire portfolio of tenements (pending and live) when considering the financial commitments and as such William Robert Richmond will be able to secure financial funds in excess of $500,000.
The financial support for this tenement application will be provided by Resource Potential Pty Ltd, a well-established and profitable mining consulting company with an annual turnover in excess of $AUD 2m.
Resource Potential Pty Ltd has provided, as part of this application, a letter endorsing its financial support for William Robert Richmond's application and a current bank statement which shows available funds in excess of $826,600. (emphasis in original)
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); and
4.2William 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; and
16.2 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; and
17.2 the Applicant has complied with the Act in relation to application E38/3532.
Application E38/3554
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.
Interlocutory application
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.
Orders were made by the warden listing the question for hearing as a preliminary issue, which was then heard on 18 July 2023.
The Jurisdiction Decision
The question raised in the hearing of the preliminary issue was whether the applications for the exploration licences were invalid because they did not contain a statement complying with the requirements of s 58(1)(b) of the Mining Act.
The warden outlined that by the conclusion of the oral hearing, Mr Richmond accepted that compliance with the requirements of s 58(1)(b) of the Mining Act was a jurisdictional fact conditioning the exercise of jurisdiction by the warden. What remained in dispute was whether:
(1)it was a requirement of s 58(1)(b) of the Mining Act that the statement specify the details of the programme of work proposed to be carried out for the entire life of the exploration licence, being a period of 5 years. There was no dispute that Mr Richmond's statement did not contain such details for the entire 5‑year period. Mr Richmond submitted that this was not a requirement of s 58(1)(b) of the Mining Act, and Regis submitted that it was a requirement; and
(2)Mr Richmond's statements complied with the requirements of s 58(1)(b) by specifying the technical and financial resources available to Mr Richmond. Mr Richmond submitted that the statements did so comply, and Regis submitted that they did not.
In relation to the first issue, the warden explained that there had been a series of decisions made by himself and Warden Cleary that concluded that it was a requirement of s 58(1)(b) of the Mining Act that the statement accompanying an application for an exploration licence specify the details of the programme of work proposed to be carried out for the entire life of the exploration licence, being a period of five years. The warden identified a number of such decisions, the most relevant being True Fella Pty Ltd v Pantoro South Pty Ltd;[16] Azure Minerals Ltd v D & G Geraghty Pty Ltd;[17] and Toolonga Mineral Sand Pty Ltd v Callum and Belinda Carruth.[18] These decisions, in turn, referred to and relied upon the decisions of Forrest & Forrest v Wilson,[19] Onslow Resources Ltd v The Hon William Joseph Johnston MLA in capacity as Minister for Mines and Petroleum;[20] and Golden Pig Enterprises Pty Ltd v O'Sullivan.[21]
[16] True Fella Pty Ltd v Pantoro South Pty Ltd [2022] WAMW 19 (True Fella) (Warden Cleary).
[17] Azure Minerals Ltd v D & G Geraghty Pty Ltd [2022] WAMW 27 (Azure) (Warden McPhee).
[18] Toolonga Mineral Sand Pty Ltd v Callum and Belinda Carruth [2023] WAMW 6 (Warden Cleary).
[19] Forrest & Forrest v Wilson [2017] HCA 30; (2017) 262 CLR 510 (Forrest & Forrest v Wilson).
[20] Onslow Resources Ltd v The Hon William Joseph Johnston MLA in capacity as Minister for Mines and Petroleum [2021] WASCA 151 (Onslow Resources).
[21] Golden Pig Enterprises Pty Ltd v O'Sullivan [2021] WASC 396 (Golden Pig).
The warden noted that notwithstanding these decisions, the matter continued to be the subject of submissions to the wardens. The warden noted that senior counsel for Mr Richmond had instructions to seek judicial review of the decision if the warden followed these previous decisions.
The warden concluded that he would need to be persuaded that what he had concluded in Azure, and what Warden Cleary had concluded in True Fella, was wrong, and after hearing the oral submissions he was not so persuaded. The line of reasoning adopted by the wardens in these previous decisions, and followed by the warden in the Jurisdiction Decision, is as follows:[22]
[22] True Fella [20] - [36] and [47] - [51]; Azure [85] - [103] and [134] - [190]; Jurisdiction Decision [91] ‑ [164].
(a)section 58(1)(b) of the Mining Act provides that an application for an exploration licence shall be accompanied by a statement specifying, relevantly:
(i) the proposed method of exploration of the area in respect of which the licence is sought; and
(ii) the details of the programme of work proposed to be carried out in such area;
(b) where there is non-compliance with the requirements of s 58(1) there can be no valid application for an exploration licence. The Mining Act does not admit the notion of a 'non‑compliant statement';
(c)the question of compliance with the requirements of s 58(1) is a jurisdictional fact. Once the warden is satisfied of the fact of compliance with s 58(1), then the warden's jurisdiction is enlivened, and the warden must make a determination under s 57(3) of the Mining Act. The onus lies on the applicant to satisfy the warden that the statement specifies the requisite material;
(d)the question of compliance is informed by the principles and purposes of the Mining Act and the context in which the words appear;
(e)whilst there is no express reference in s 58(1)(b) to the 5‑year period of time, because s 58(1)(b)(i) refers to 'the licence', the period for which the proposed method of exploration is required to be 'specified' must be for the 5‑year period for which a licence shall be granted as stipulated by s 61(1);
(f)the meaning of s 58(1)(b) is informed by the task in s 57(3) of the Mining Act, because the purpose of s 58(1)(b) is to enable the mining registrar or warden to satisfy themselves that the applicant is able to effectively explore the land in respect of which the application has been made;
(g)the reference in s 57(3) of the Mining Act to being 'satisfied that the applicant is able to effectively explore the land in respect of which the application has been made' must refer to the capacity to explore the whole of the area of the tenement over the life of the licence, for the reason that the application is for the grant of a 5‑year exploration licence;
(h)sections 57(3) and 58(1)(b) must be construed to refer to the same areas and periods of time; and
(i)the inclusion in the Mining Act of other provisions which contain 'annualised obligations' on the holder of an exploration licence do not lead to an alternative construction.
In relation to the second issue, the warden considered the content of the s 58(1)(b) statement and the reasons of Allanson J in Golden Pig as to the requirements of such a statement. The warden concluded that he was satisfied 'by a narrow margin' that the statement did 'specify' the technical resources available to Mr Richmond. Whilst accepting that the statement could have been drafted in a clearer manner, the warden concluded that when read with the accompanying letter it amounted to a 'sufficient representation of the identity of the service providers, and their links to Mr Richmond and availability for the project,' so as to satisfy the warden that 'the requirement was met for jurisdictional purposes'.[23]
[23] Jurisdiction Decision [187] - [189].
The Costs Decision
Following the Jurisdiction Decision, Regis sought its costs of the hearing of the preliminary issue. Mr Richmond opposed the application and submitted that as the warden had concluded the applications were invalid, he did not have jurisdiction to make the costs order sought.
The warden concluded that he retained jurisdiction to make an order for costs, and ordered that Mr Richmond pay the costs of the dispute, to be taxed if not agreed.
The warden's reasons for reaching this conclusion can be summarised as follows:
(a)the power to award costs must be expressly conferred on an administrative decision‑maker or, alternatively, be necessarily implicit in the statute conferring power upon the decision‑maker. The question is therefore a matter of statutory construction;
(b)the relevant statutory power to award costs is that contained in reg 165(4) of the Mining Regulations;
(c)no statutory provision expressly addresses whether an award of costs can be made if a warden determines that an application is invalid;
(d)the effect of the definition of 'proceedings' in reg 137(1) of the Mining Regulations, and the requirements of reg 137(2) are as follows:
120The relevant part is the definition of a proceeding for present purposes, is the part referring to the commencement of same, when an objection has been lodged. That makes the jurisdiction, somewhat unique, in that it is commenced by a responding party, rather than a moving one (the applicant for a tenement).
121In my view that means that the originating process of a Part IV proceeding before the Warden of Mines, is not in fact the application for a tenement at all, but rather, it is the objection.
122This view is entirely consistent with the framework of the Act, where relevantly, section 59(2) of the Act, refers to a process where no notice of objection has been lodged at all.
123In that case, there is no hearing before the Warden, and it is the Mining Registrar who deals with the matter.
124Applying section 59(4) of the Act, again, it is the lodgment of the objection which enlivens the Wardens jurisdiction to hear a matter.
125There is certainly not any restriction on the type of objections which may be taken, and no basis to restrict an objection to matters excluding jurisdictional compliance with the requirements of the Act.
…
132Approached in this manner, the point of the structure of the Act and Regulations in relation to the Wardens administrative jurisdiction, in my view, is to then leave a matter where there is a contest between parties ( as distinct form a situation where there is only the Applicant) as to questions of compliance, in the jurisdiction of the Warden of Mines, so as to enable a structured hearing to occur, a view reached and consequential orders to be coherently made.
133Likewise too, in my view the whole of the Part must be read coherently. It includes the extremely broad and general powers (see for example Regulation 152), but importantly, includes the powers to hear interlocutory applications (Regulation 153).
134Such applications are commonly made, as in this case, on the basis of the seeking to ventilate a preliminary issue on a question of compliance, most commonly referred to loosely, as being jurisdictional in nature.
…
136Considering the clear effect of Regulation 137(2), the correct view is that it is the filing of the objection which commences the proceedings, not the application.
137It seems to me to follow that the appropriate construction of Regulation 137(2) and 165(4), is that the proceedings before the Wardens, are not completed until the objection is formally dealt with irrespective of whether the application is valid or no, at least in respect of exploration licenses.
(e)at the time the proceedings were commenced there was no finding of invalidity and the objection was sound;
(f)the subsequent finding of invalidity means that prospectively no further orders can be made in respect of the application for the exploration licence, but this does not render the objection void or a nullity;
(g)in these circumstances, a 'proceedings' remains on foot for the purposes of reg 165(4) and a warden is able to make a costs order in relation to those proceedings; and
(h)such a construction is 'plainly necessary to the practical and sensible conduct' of the objection proceedings conducted under pt IV of the Mining Act and the requirements of natural justice and is consistent with the purposes of the Mining Act and Mining Regulations.
Having concluded that he retained the jurisdiction to award costs, the warden went on to conclude that the maintenance by Mr Richmond of his application for an exploration licence following the delivery on 22 March 2023 of the decision of Warden Cleary in Toolonga was frivolous and/or vexatious for the purposes of reg 165(4) of the Mining Regulations, and ordered that Mr Richmond pay Regis' costs from that date.
The application for judicial review
Ground 1 of Mr Richmond's application concerns the Jurisdiction Decision and alleges that the warden committed jurisdictional error in finding that he did not have jurisdiction to hear the applications, in that:
(1)the warden determined that:
(a)his power to hear the applications and make a recommendation to the Minister pursuant to s 59(4) and (5) of the Mining Act was conditioned upon the applications being accompanied by statements that complied with s 58(1)(b);
(b)in order to comply with s 58(1)(b)(ii), the statements were required to specify a programme of work proposed to be carried out for a period of 5 years; and
(c)the statements did not specify a programme of work for a period of 5 years and, therefore, the applications were invalid;
whereas,
(2)on the proper construction of s 58(1)(b)(ii), a statement accompanying an application for an exploration licence is only required to specify the details of the programme of work proposed to be carried out in the area in respect of which the licence is sought; and
(3)the statements did specify the details of the programme of work proposed to be carried out in the area in respect of which the licence was sought and, therefore, the applications were valid for the purposes of s 58(1)(b).
Ground 2 of Mr Richmond's application for judicial review concerns the Costs Decision and is in the alternative to ground 1. Ground 2 alleges that the warden made a jurisdictional error in finding that he was empowered to order that Mr Richmond pay Regis' costs of the proceedings, in that:
(1)the warden determined that reg 165(4) of the Mining Regulations, provided an express, or, alternatively, necessarily implicit, power to award costs in relation to proceedings that a warden has determined they lack jurisdiction to hear and determine; and
(2)on the proper construction of s 59(4) of the Mining Act and reg 165(4) of the Mining Regulations, the power to award costs is enlivened only if, relevantly, a valid application has been made pursuant to s 58 of the Mining Act which a warden has jurisdiction to hear.
Mr Richmond seeks writs of certiorari and mandamus and a declaration, as well as the following order (being an order which would have the same effect any of these remedies):
1.a writ of certiorari removing the Jurisdiction Decision and the Costs Decision into this court for the purpose of being quashed;
2.a declaration that:
(a)the Jurisdiction Decision and the Costs Decision are invalid and of no force and effect;
(b)the statements accompanying the applications for the exploration licences pursuant to s 58(1) of the Mining Act comply with the requirements of s 58(1)(b) of the Mining Act; and
(c)the applications for the exploration licences are valid applications that the warden has jurisdiction to hear pursuant to s 59(4) of the Mining Act;
3.a writ of mandamus compelling the warden to hear the applications for the exploration licences according to law;
4.an order that Regis pay Mr Richmond's costs of the application for judicial review; and
5.such further or other relief as the court considers to be just.
Legal principles
Judicial review
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]
Statutory construction
[31] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [6] - [7]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 [32] ‑ [33] (Kiefel CJ, Keane, Gleeson JJ), [46] (Gageler J), [63] (Gordon J).
[32] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [14] ‑ [15].
Resolution of this application involves questions of construction regarding the Mining Act, and the requirements of a compliant application for an exploration licence.
The general principles concerning the process of statutory construction are well known. Statutory construction involves the attribution of objective meaning to the statutory text having regard to considerations of text, context and purpose. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.[33]
[33] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] - [71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14].
In relation to the statutory purpose, the Court of Appeal observed in Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation):[34]
[34] Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76.
177As to the last matter, statutory purpose, French CJ, Hayne, Kiefel, Gageler and Keane JJ said in Thiess v Collector of Customs:
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.'
178The statutory purpose of legislation may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions. (citations omitted)
The provisions of the statute must be understood, if possible, as parts of a coherent whole.[35] Where the text, read in context, permits more than one potential meaning, the choice between those meanings may turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies.[36]
The Mining Act
[35] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70]; Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593 [16]; Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76 [181].
[36] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70]. Mohammadi v Bethune [2018] WASCA 98 [34]; Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76 [180].
It is also relevant when construing the Mining Act to have regard to the decision of the High Court in Forrest & Forrest v Wilson. Forrest & Forrest v Wilson concerned the consequences of a failure to lodge a mineralisation report contemporaneously with an application for a mining lease under s 74(1) of the then existing version of the Mining Act.
A majority of the Court comprising of Kiefel CJ, Bell, Gageler and Keane JJ found that the requirement to lodge the mineralisation report contemporaneously with the mining lease applications was a condition precedent to the exercise of the jurisdiction of both the warden and the Minister, and the failure to lodge the mineralisation report contemporaneously resulted in an invalid application that denied the warden the jurisdiction to consider the application and therefore denied the Minister the jurisdiction to grant the mining lease. The majority held:[37]
A consideration of 'the language of the statute, its subject matter and objects, and the consequences for the parties of holding void' acts done in breach of the Act, reveals that ss 74(l)(ca)(ii), 74A(l) and 75(4a) imposed essential preliminaries to the exercise of the power conferred by s 71 of the Act. That this was so was made clear by both the express terms and the structure of the provisions as sequential steps in an integrated process leading to the possibility of the grant of a mining lease by the Minister. These provisions were not expressed in indeterminate terms: they imposed rules which could easily be identified and applied. In addition, any inconvenience suffered by treating the requirements of the Act as conditions precedent to the exercise of the Minister's power would ensure only to those with some responsibility for the non-observance, whereas (as will be explained) the contrary view would disadvantage both the public interest and individuals who were within the protection of the Act. Finally, and importantly, Project Blue Sky was not concerned with a statutory regime for the making of grants of rights to exploit the resources of a State.
[37] Forrest & Forrest v Wilson [63].
Significantly for present purposes, in reaching this conclusion the majority considered that the nature of the regime established by the Mining Act was an important matter of context:[38]
64… where a statutory regime confers power on the executive government of a State to grant exclusive rights to exploit the resources of the State, the regime will, subject to provision to the contrary, be understood as mandating compliance with the requirements of the regime as essential to the making of a valid grant. When a statute that provides for the disposition of interests in the resources of a State 'prescribes a mode of exercise of the statutory power, that mode must be followed and observed'. The statutory conditions regulating the making of a grant must be observed. A grant will be effective if the regime is complied with, but not otherwise.
65This approach to statutory construction had its origin in colonial times in legislation which vested the disposition of land not already disposed of by the Crown in the legislatures of the Australian colonies. Nothing said in Project Blue Sky diminished the force of the authorities which support this approach. Adherence to this approach supports parliamentary control of the disposition of lands held by the Crown in right of the State. It gives effect to an abiding appreciation that the public interest is not well served by allowing non-compliance with a legislative regime to be overlooked or excused by the officers of the executive government charged with its administration. To permit such a state of affairs might imperil the honest and efficient enforcement of the statutory regime, by allowing scope for dealings between miners and officers of the executive government in relation to the relaxation of the requirements of the legislation. One can be confident that such a state of affairs was not intended by the Act. (citations omitted)
[38] Forrest & Forrest v Wilson.
These principles, in particular those outlined in [63] above, have been referred to and relied on in other decisions of this court which have considered the construction of different aspects of the Mining Act, including applications for tenements other than a mining lease,[39] and I consider they are applicable to the present case.
[39] See, for example, Forrest & Forrest Pty Ltd v O'Sullivan [2020] WASC 468 [20] ‑ [21], [25]; Golden Pig [44] ‑ [45]; Blue Ribbon Mines Pty Ltd v Roy Hill Infrastructure Pty Ltd [2022] WASC 362 [61]; Onslow Resources [48] ‑ [49].
Ground 1 - the content of the statement
Ground 1 of the application raises a question of statutory construction regarding the content of the statement required to accompany an application for an exploration licence.
Overview of Mr Richmond's case
Mr Richmond submits that, as a matter of statutory construction, there is no requirement that a s 58(1)(b) statement contain the details of the programme of work proposed to be carried over the 5‑year period of the exploration licence. Mr Richmond submits that when the text, context and purpose of the Mining Act is properly construed, there is no temporal requirement in relation to the statement at all. Accordingly, Mr Richmond submits that he filed a compliant s 58(1)(b) statement with his application, and the warden has jurisdiction to hear his application.
Overview of Regis' case
Regis, in response, submits that there are four reasons why ground 1 of the application should be dismissed:
(1)Regis submits that, properly construed, s 58(1)(b)(ii) does require that the accompanying statement contain the details of the programme of work proposed to be carried over the 5‑year period of the exploration licence. Regis also relies on the text, context and purpose of the Mining Act in this regard (Regis reason (1));
(2)Regis also submits that, irrespective of whether the statement must detail the programme of works for the full 5-year period, Mr Richmond's statements are not compliant with s 58(1)(b)(ii) for a second reason. Regis submits that the statements provide incomplete plans and lack details on their face. Whilst Regis accepts that the statement may refer to contingencies or allow for stages of exploration, Regis submits that there is still a requirement of s 58(1)(b)(ii) that the statement specify the complete plans, and there is no provision for an applicant to 'opt out' of providing the details of the programme of works to be carried out, or to be selective as to what is included. This was not a matter raised before the warden and is therefore not a matter addressed in the Jurisdiction Decision (Regis reason (2));
(3)Regis submits that the statements do not comply with s 58(1)(b)(iii) of the Mining Act because the statements only specify the estimated amount of money to be expended on the exploration for the first year and not the full 5‑year term of the licence. Regis essentially relies on the same submissions it makes in relation to reason (1) above. This was also not a matter raised before the warden and is therefore not addressed in the Jurisdiction Decision (Regis reason (3)); and
(4)Regis submits that the statements do not comply with s 58(1)(b)(iv) of the Mining Act because the statements do not specify how the technical resources asserted were available to Mr Richmond. In particular, the statements do not specify how or why Respot's technical personnel are able to be relied upon by Mr Richmond. This was the second matter raised before the warden and Regis submits that the decision of the warden to find that the requirements of s 58(1)(b)(iv) were met was incorrect (Regis reason (4)).
Scope of the present hearing
Mr Richmond submits that Regis is not able to raise Regis reason (4) in these judicial review proceedings. Mr Richmond submits that an application for judicial review is not an appeal, therefore there are no procedural equivalents to a cross‑appeal and as Regis has not filed its own application for judicial review, Regis cannot now raise Regis reason (4) for consideration in this present application.
I do not accept this submission. The question before this court is whether a jurisdictional fact necessary to enliven the jurisdiction of the warden to consider Mr Richmond's applications for exploration licences exists. As outlined by Gaudron J in Corporation of the City of Enfield v Development Assessment Commission,[40] once that issue is raised, it is for the court hearing that application to determine the question of jurisdiction:[41]
Where, as here, the legality of an executive or administrative decision or of action taken pursuant to a decision of that kind depends on the existence of a particular fact or factual situation, it is the function of a court, when its jurisdiction is invoked, to determine, for itself, whether the fact or the factual situation does or does not exist. To do less is to abdicate judicial responsibility.
[40] Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135.
[41] Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 [60]. See also [22] and [38] (Gleeson CJ, Gummow, Kirby & Hayne JJ).
Accordingly, it is necessary for this court to determine for itself whether the jurisdictional fact necessary to enliven the jurisdiction of the warden, being a compliant s 58(1)(b) statement, exists. In making that determination, I consider that the following two distinct issues arise for consideration:
(1)the identification of the requirements of a compliant s 58(1)(b) statement. This is a question of statutory construction, and involves consideration of the issues raised by Mr Richmond in relation to Ground 1, and as well as Regis reasons (1), (2) and (3); and
(2)whether the s 58(1)(b) statements lodged by Mr Richmond comply with those statutory requirements. This involves this court considering the content of the s 58(1)(b) statement, including the matters raised in Regis reason (4).
In considering the above two issues, I consider it is open to the parties to raise any matters going to existence of the jurisdictional fact.
Preliminary observations
The legal issues raised by this ground are the latest in a line of decisions of both wardens and this court in which each have been called upon to construe various provisions of the Mining Act, and in particular the requirements for a valid application for a mining tenement, following the decision of the High Court in Forrest and Forrest v Wilson.
There was no dispute between the parties that a statement meeting the requirements of s 58(1)(b) of the Mining Act is required to be lodged contemporaneously with an application for an exploration licence, and that the lodgement of such a statement is a condition precedent to the exercise of the jurisdiction of the mining registrar or warden (as the case may be) under s 59 of the Mining Act. This proposition is consistent with the reasoning in Forrest and Forrest v Wilson and Golden Pig.[42]
[42] Golden Pig [44] - [46].
There was also no dispute that the Mining Act does not admit the notion of a 'non-compliant' s 58(1)(b) statement, in the sense of a document that only partially meets the description of the statement required by s 58(1)(b) of the Mining Act. A purported statement lodged with an application either meets the criterion stipulated in s 58(1)(b) or it does not, and there is no 'half‑way house' which enlivens jurisdiction to consider the application.[43]
[43] See Onslow Resources [48] - [53]. Whilst Onslow Resources concerned an application for a mining lease and a mining operations statement, there is no material difference relation to this issue in the context of an application for an exploration licence and a s 58(1)(b) statement.
The question which arises for consideration in ground 1 concerns the content of that statement. As observed by Allanson J in Golden Pig:[44]
The plain meaning of what is required for the content of the statement to comply with s 58(1)(b)(iv) is, perhaps less readily apparent.
[44] Golden Pig [53].
In Golden Pig, Allanson J considered the meaning of the word 'specify' in s 58(1)(b) and the word 'available' in s 58(1)(b)(iv). After considering the dictionary meanings, and noting the limited assistance that could be derived from definitions containing a range of meanings, his Honour concluded as follows in relation to the meaning of 'specify':
58The following factors, in my opinion, are relevant in discerning the meaning the legislature intended by the words of s 58(1)(b).
59 First, the court must have regard to the words used. Specify is generally used when some degree of certainty or detail is intended. The word 'specifying' is used also in relation to the proposed method of exploration, the proposed program of works, and the estimated expenditure over a program of exploration. These are matters which need to be stated with some degree of certainty or detail. The same requirement of specificity should apply for all of the subparagraphs of s 58(1)(b).
60 Second, the matters in s 58(1)(b) are required to be in a written statement that accompanies the application for an exploration licence. Should there be no objector, the report of the mining registrar is forwarded to the Minister under s 59(2). If satisfied that the applicant has complied with the provisions of the Act, the mining registrar is required to recommend the grant of the exploration license. On receipt of the report, the Minister may grant or refuse the exploration licence. Any licence granted is deemed to be granted subject to conditions, including that the holder will explore for minerals.
61The apparent intention of the section is that the mining registrar or other person reading the application and accompanying statement should be informed, by those documents, what resources are available to the applicant to carry out the proposed method of exploration and the proposed program of works, and to fund the estimated expenditure. The mining registrar should be able to be satisfied, from the prescribed form and documents which accompany it, whether the applicant has complied in all respects with the provisions of the Act, and accordingly whether to recommend the application be granted or refused, and the reasons for that recommendation.
62 That intention will be frustrated unless the matters prescribed by s 58(1)(b) are stated definitely and in sufficient detail.
(citations omitted)
I respectfully agree with and adopt these conclusions.
Allanson J went on to note that counsel for Golden Pig submitted that s 58(1)(b) must be read as a whole, and in a practical way, submitting that an application will not fail to comply by reason only of the 'quality' or 'sufficiency' of information in the accompanying statement, provided the statement 'addressed' the matters in s 58(1)(b). That is, a statement may be compliant even if it may be unclear. In these circumstances, further information may be requested and supplied before a decision is made by the mining registrar or warden, if the information initially provided is unclear or insufficient to satisfy the mining registrar or warden about the capacity of the applicant to explore the land the subject of the application.
In relation to this submission, his Honour concluded:
65One difficulty with that submission is that s 58(1)(b), by its words, requires a statement accompanying the application and 'specifying' not simply 'addressing' the four prescribed matters. A s 58 statement is not required merely to indicate that an applicant has the resources available to it to carry out a program of exploration, but to say what those resources are.
66 The power to request further information does not overcome the legislative policy that the required information must be in the statement that accompanies the application.
I understand his Honour, in these paragraphs, to be focusing on the requirement that a s 58(1)(b) statement must 'specify' as opposed to 'address' each of the required matters. These paragraphs are directed towards the construction of s 58(1)(b) of the Mining Act. When considering the requirement in s 58(1)(b)(iv) to specify the technical and financial resources available to the applicant, his Honour concluded that it is not sufficient that a s 58(1)(b) statement indicate in some way that an applicant has resources available to it to carry out a program of exploration. The subsection requires that it specify what those resources are.[45] I respectfully agree with his Honour in this regard.
[45] Golden Pig [69].
The subsequent issue which then arises is whether a particular s 58(1)(b) statement specifies each of the required matters (as properly construed). In Golden Pig, Allanson J concluded that the purported s 58(1)(b) statement did not meet the statutory criteria of specifying the technical and financial resources available to the applicant.
Whilst Regis reason (4) is also concerned with s 58(1)(b)(iv) of the Mining Act, the remainder of the judicial review application is concerned with different aspects of the requirements of a s 58(1)(b) statement, being the requirement in s 58(1)(b)(ii) to specify the details of the programme of work proposed to be carried out, and the requirement in s 58(1)(b)(iii) that the statement specify the amount of money proposed to be expended on the exploration.
There have been no cases since the High Court decision in Forrest & Forrest v Wilson which have considered the requirements of s 58(1)(b)(ii) or s 58(1)(b)(iii) in this context.
The applicant did refer the court to the earlier decision of the Full Court of Supreme Court in Ex parte Aberfoyle Resources Ltd.[46]This decision, delivered in April 1989, pre‑dates the decisions of the High Court in Hot Holdings Pty Ltd v Creasy[47] and Forrest & Forrest v Wilson. I have discussed this case later in these reasons.
Is there a 5-year requirement contained in s 58(1)(b)(ii) and s 58(1)(b)(iii)?
[46] Ex parte Aberfoyle Resources Ltd (Unreported, Full Court of the Supreme Court of Western Australia, Library No 7612, 19 April 1989, BC8901132) (Aberfoyle Resources).
[47] Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149.
It is convenient to first consider whether, as a matter of construction, s 58(1)(b)(ii) and s 58(1)(b)(ii) each contain a temporal requirement that the matters required by those subsections to be specified in the statement must be specified for a 5‑year period. I will refer to this issue generally as the 5‑year requirement or the temporal requirement.
This question of construction addresses ground 1 of the application for judicial review as advanced by Mr Richmond, and the Regis reasons (1) and (3).
For the reasons set out below, I have respectfully come to a different conclusion to that of the wardens, and I am of the view that there is no such 5‑year requirement contained in s 58(1)(b)(ii) of the Mining Act. I have also come to the conclusion that there is no 5‑year requirement contained in s 58(1)(b)(iii) of the Mining Act.
Text
Owing to its centrality to the question of construction, it is helpful to set out the text of s 58(1)(b) in full:
(1) An application for an exploration licence —
…
(b) shall be accompanied by a statement specifying —
(i) the proposed method of exploration of the area in respect of which the licence is sought; and
(ii) the details of the programme of work proposed to be carried out in such area; and
(iii) the estimated amount of money proposed to be expended on the exploration; and
(iv) the technical and, subject to subsection (1aa), financial resources available to the applicant; and
What is immediately apparent is that there is no express requirement in s 58(1)(b) that the statement specify the details of the programme of work, or the estimated amount of money proposed to be expended, for a period of 5 years, or indeed any period of time at all.
Rather, the text of s 58(1)(b)(i) and (ii) makes express reference to, and is concerned with, the area of land the subject of the application, and not any period of time.
Section 58(1)(b)(i) provides that the statement shall specify the proposed method of exploration of the area in respect of which the licence is sought, and s 58(1)(b)(ii) refers to the programme of work proposed to be carried out in such area. The reference in (ii) to 'such area' should be understood as being a reference to the area referred to in (i). Section 58(1)(b)(iii) refers to the estimated amount of money proposed to be expended on the 'exploration'. The reference to 'exploration' in (iii) should be understood as a reference to the same 'exploration' referred to in (i), and to the programme of works referred to in (ii).
Accordingly, on its face, the plain text of s 58(1)(b) does not support the construction adopted by the wardens and as advanced by Regis.
The textual hook relied upon by the wardens in their decisions is the reference in s 58(1) to an application for an exploration licence. The wardens concluded that this reference to a licence, when read with s 61 of the Mining Act, must be a reference to a licence with a term of 5 years. Accordingly, the information required to be specified by s 58(1)(b), must be specified for the entire 5‑year period.
Regis also submits that there is no need for s 58(1)(b)(ii) and s 58(1)(b)(iii) to include the express words 'for the term', as it is 'obvious and implicit' from the term, nature of and process leading to the grant of an exploration licence. In this regard, Regis relies on the following elements of the Mining Act:
(a)the inclusion of the words 'accompanied' and 'specified' in s 58(1)(b) of the Mining Act;
(b)that in accordance with s 61(1) of the Mining Act, the term of an exploration licence is for 5 years, and cannot be for any shorter period of time;
(c)that when a period less than the term of an exploration licence is intended it is expressly referred to, for example as in s 58(1)(c) which imposes a requirement to pay the amount of the prescribed rent for the first year of the term of the licence; and
(d)the use of the word 'the' in s 58(1)(b)(ii) in combination with the words 'details' and 'programme'.
I do not consider the above textual elements support a conclusion that s 58(1)(b)(ii) and s 58(1)(b)(iii) each contain a requirement that the matters required by those subsections to be specified must be specified for a 5‑year period.
Whilst the terms 'accompanied' and 'specified' are relevant to the overall construction of s 58(1)(b) of the Mining Act, I consider each offers limited assistance in relation to the question of whether the content of a s 58(1)(b) statement must specify the details of the proposed programme of work and the estimated amount of money proposed to be expended over a 5‑year period.
The use of the word 'specified' is relevant in so far as it requires the statement to state with some degree of certainty or detail each of the matters identified in s 58(1)(b)(i) ‑ s 58(1)(b)(iv), as opposed to merely addressing each of those matters. However, it does not meaningfully assist in determining the content of those matters, and in particular whether the 5‑year requirement applies.
The use of the word 'accompanied' is also relevant to the conclusion that the provision of a compliant s 58(1)(b) statement is a jurisdictional fact conditioning the exercise of the jurisdiction of the mining registrar, the warden and the Minister. It is also relevant to an overall understanding of the approval process under the Mining Act, and indicates the need for a statement specifying all required matters to be lodged at the time of the application so that each subsequent stage of the approval process can proceed with that information. However, again, it offers limited assistance in determining the content of that statement.
In Golden Pig, Allanson J relied on each of these words in concluding that the intention of s 59(2) of the Mining Act (concerning the role of the mining registrar upon receipt of an application for an exploration licence) would be frustrated unless the matters prescribed by s 58(1)(b) are stated definitely and in sufficient detail in the statement that accompanies the application. This much can be accepted. However, this of itself does not assist in determining whether the matters prescribed by s 58(1)(b) include the 5‑year requirement.
Regis relies upon s 61(1) of the Mining Act, which provides that the term of an exploration is for 5 years. Regis also relies on the lack of any provision in the Mining Act providing that an exploration licence for any shorter period of time can be granted. This factor was also relied upon by the wardens.
This submission (and conclusion) requires a large degree of work to be done by the word 'licence', in circumstances where the text of s 58(1)(b)(i) ‑ s 58(1)(b)(iv) does not make any express reference to a 5‑year period of time and instead refers to the area of land the subject of the application. I consider the preferable construction of the use of the word 'licence' in the opening words to s 58(1) of the Mining Act is a reference to the application being made, and the word 'licence' is s 58(1)(b)(i) is used to delineate the area of land the subject of the application.
In these circumstances, I do not consider the fact that an exploration licence is for a period of 5 years, overcomes the lack of any express reference in s 58(1)(b)(ii) and s 58(1)(b)(iii) to the information required needing to be specified for a period of 5 years in circumstances where the focus of s 58(1)(b) is on information concerning the area of land the subject of the application as opposed to any period of time.
Regis also submits that the reference in s 58(1)(c) to an application for an exploration licence being accompanied by the amount of the prescribed rent for the first year of the term of the licence is an indication that where a period of time less than the full 5‑year term is intended, it is expressly stated in the legislation. However, this submission suffers from assuming the proposition it advances. An equally open construction is that no time period is intended, unless expressly stated.
Regis places reliance on the use of the word 'the' in s 58(1)(b)(ii) in combination with the words 'details' and 'programme'. Regis submits that the requirement to specify 'the' details of 'the' programme of work to be carried out, emphasises that there is only one plan of works at the time the application is made, which is then relied upon in the subsequent approval process. Regis relies on the definition of programme, being 'an outline of activities or events', and submits that this word drives the need for an organised plan or course of works to be stated, and such a plan necessarily proceeds over a period of time.
Regis therefore submits that this language does not permit an applicant to specify only part of that programme of works. Rather, sub‑paragraph (ii) is directed towards the entire programme, or plan or organised course of works which, given the term of an exploration licence, means the programme over the entire 5‑year term.
I consider the question of whether s 58(1)(b)(ii) permits only part of a programme of works to be included in an accompanying statement is a matter better addressed when considering Regis reason (2) below. However, in so far as Regis submits that the programme must include what is proposed for the entire 5‑year term, Regis also accepts that the programme does not need to specify exactly what was proposed for each year of the 5‑year term. Rather, what is required to be included was what was proposed over the entire term.[48]
[48] ts 71- 72.
This submission is, in my view, consistent with a recognition that s 58(1)(b) is concerned with the exploration and programme of works proposed in relation to the land the subject of the application. It is a recognition that this is what is required not only by s 58(1)(b), but also the approval process contained in the Mining Act including the requirements of s 57(3) of the Mining Act.
Context
This focus on the area of the land the subject of the application in the text of s 58(1)(b) is consistent with the broader context of the Mining Act, when considered as a whole.
First, a central aspect of the scheme of the Mining Act is that 'land is open for mining' unless it is land which is the subject of a mining tenement (with some exceptions and exclusions).[49] The Mining Act establishes a regime whereby applicants can apply for various types of mining tenements and, if granted, the result is that the land the subject of the grant is no longer available for mining (subject to exceptions and exclusions for example, miscellaneous licences).
[49] Mining Act, s 18 and s 27.
Section 57 of the of the Mining Act also places emphasis on the land the subject of an application. Section 57(2) provides that the area of land in respect of which an exploration licence may be granted shall be a block or blocks. Section 57(2) ‑ s 57(2f) go on to address, in some detail, the requirements regarding these blocks of land and whether land is unavailable for exploration. Further, s 57(4) provides the Minister with the power to declare that no application for an exploration licence shall be made or granted with respect to specified areas of land.
Significantly, s 57(3) of the Mining Act provides that the registrar or the warden shall not recommend the grant of an exploration licence unless satisfied that the applicant is able to effectively explore the land in respect of which the application has been made. There is no reference in s 57(3) to the registrar or warden needing to be satisfied that the applicant is able to effectively explore the land over the 5‑year term of the licence. The focus is on being able to effectively explore the land.
Secondly, whilst s 61(1) provides that the term of an exploration licence is for a period of 5 years, there is no requirement in the Mining Act that the holder of an exploration licence retain the licence for the full 5‑year period. An essential element of the scheme of the Mining Act is that the holder of an exploration licence may apply (in priority to others) for a mining lease or a general purpose lease over all or part of the land the subject of their exploration licence.[50] The holder is not required to wait until the expiry of the exploration licence to make such an application and therefore could chose to do it after, for example, one year of exploration. The holder may also surrender the licence prior to expiry of the 5‑year term.
[50] Mining Act, s 67.
Thirdly, there is no requirement in the Mining Act that the holder of an exploration licence comply with the programme of works outlined in the s 58(1)(b) statement. Whilst the holder of an exploration licence is required to meet the prescribed expenditure conditions of the exploration licence,[51] assuming that is done, there is nothing preventing the holder from otherwise conducting the majority of its programme of works (and expenditure) over the initial 1 ‑ 2 year period of licence, and then applying for a mining licence if that exploration locates minerals. Equally, there is nothing preventing the holder from spreading the exploration (and expenditure) out in a more even manner over the term of the licence.
[51] Mining Act, s 62.
Turning to Mr Richmond's statements themselves, whilst each statement is not lengthy, they contain the following information:
(a)that Mr Richmond draws on the technical services used by Respot;
(b)that Respot is a consulting and contracting business specialising in geophysical survey design, acquisition, processing, modelling, inversion, data integration, interpretation and drill hole targeting;
(c)details regarding the personnel at Respot, including that the team are trained and mentored by Dr Jayson Meyers. Dr Jayson Meyers has a BSc in geology, MSc in geochemistry and a PhD in geophysics, and that the other (unnamed) team members include, but are not limited to, hydrologists, mining engineers and metallurgists; and
(d)that the 'team at Respot will assist the project at a variety of development stages, from tenement evaluation and initial exploration program planning, to drill targeting and resource definition' and that the other team members 'will be used, when required, to assist Dr Jayson Meyers with performance of William Robert Richmond work programs'. Examples of those work programs are then detailed.
I agree with the conclusion of the warden that whilst the statements could have included more detailed information and could have been drafted in a more clear and precise manner, they nonetheless meet the requirements of s 58(1)(b)(iv) of the Mining Act.
I note that it is not a requirement of s 58(1)(b)(iv) that an applicant themselves must have the required technical resources. It is sufficient if those resources are available to an applicant. Therefore, the section contemplates that an applicant may (amongst other things) procure some or all of the technical resources from a third party provider.
I consider that the statements contain, with some degree of certainty or detail, the technical resources that are available to Mr Richmond to carry out the proposed programme of works. Those technical resources are the technical resources provided by Respot. The statements explain what Respot is, identifies the key person at Respot (Dr Meyers), provides an overview of the qualifications or specialties of other (unnamed) team members of Respot and identifies the work programmes of Respot that will be used, if required.
In terms of whether the statements specify how these technical resources are available to Mr Richmond, the statements do not contain details of any formal agreement entered into between Mr Richmond and Respot. However, I do not consider the statements fall into the category of simply outlining technical resources available at large, without specifying any details as to how the technical resources are available to Mr Richmond.
Mr Richmond's statements are not in the category of statement that was before Allanson J in Golden Pig, which detailed only the following information:[61]
The following work program will be conducted by consulting geologists, geochemists and geophysicists with a strong emphasis on initially evaluating past geological and geochemical work programs.
[61] Golden Pig [23].
Mr Richmond's statements reveal that Respot and Mr Richmond are known to each other. The statements provide that 'the team at Respot will assist the project' and the other team members 'will be used, when required, to assist Dr Jayson Meyers with performance of William Robert Richmond work programs'. The statements also attach a letter of support from Respot endorsing its financial support for Mr Richmond's applications and attaching a bank statement for Respot. I consider that, taken as a whole, these pieces of information are consistent with some form of relationship or agreement between Mr Richmond and Respot, such that it can be said that the statement specifies how the resources of Respot are available to Mr Richmond.
Regis also submits that to the extent the statements identify various types of team members by way of their qualifications (hydrologists, mining engineers and metallurgists) and various types of work programmes that these team members will assist Mr Richmond with, there is no attempt to identify how or why those qualifications will be required or how those work programmes will be needed.
I am not satisfied that the absence of these matters results in Mr Richmond's statements failing to comply with s 58(1)(b)(iv) of the Mining Act.
The task of this court is to consider whether Mr Richmond has lodged a compliant s 58(1)(b) statement, such that the statutory jurisdiction of the warden and in turn the Minister, is enlivened. It is not the role of this court to consider whether Mr Richmond's applications should be recommended or ultimately granted. It is also not the role of this court to form an opinion as to whether it is satisfied that Mr Richmond is able to effectively explore the land the subject of the applications.
Mr Richmond has specified in his statements the technical resources which he says are available to him. It is a matter for the warden to consider whether they are satisfied, in light of all relevant information including these technical resources, that Mr Richmond is able to effectively explore the land the subject of the applications, and whether to recommend the grant of the applications. The extent to which the technical resources identified by Mr Richmond in his statements demonstrate an ability to effectively explore the land (or not) is accordingly a matter for the warden to consider.
It is then for the Minister to determine whether to grant the applications. The extent to which the technical resources identified by Mr Richmond in his statements (and any further information requested by the warden or the Minister) demonstrate an ability to effectively explore the land may be a matter to which the Minister has regard.
I do not consider this conclusion is inconsistent with the decision of the High Court in Forrest & Forrest v Wilson. Provided the s 58(1)(b) statement accompanying an application specifies the technical resources available to Mr Richmond, the statutory approval regime will be facilitated. Further, it remains open to an objector to make submissions along the lines of those submitted by Regis, and to submit that the warden should not be satisfied, on the basis of the technical resources specified in the s 58(1)(b) statement, that the applicant is able to effectively explore the land the subject of the application.
Ground 2
In light of my conclusion in relation to ground 1, it is not strictly necessary to consider ground 2 of the application for judicial review. However, as the ground was fully argued before me, and in the event I am wrong in relation to my conclusion regarding ground 1, I have set out below my conclusion and reasons.
Submissions
Both parties accept that the warden can only award costs if a statutory provision empowers the warden to award costs, and that accordingly the question is one of statutory construction.
Mr Richmond submits that the warden's power to award costs under reg 165(4) of the Mining Regulations is conditioned by the phrase 'hearing and determining proceedings under Division 3'. The term 'proceedings' is defined in s 137(1) as being 'proceedings relating to an application under Part IV in relation to which an objection has been lodged'. Mr Richmond submits that the reference to 'an application' in this definition means a valid application under pt IV of the Mining Act for a mining tenement.
Accordingly, Mr Richmond submits that the power of a warden to award costs under reg 165(4) is conditioned by the same preconditions that govern the warden's power to hear an application for an exploration licence. If an application is non‑compliant, then it is not an application for the purposes of the Mining Act, and there are no 'proceedings relating to an application under Part IV' for the purposes of reg 137(1) and reg 165(4) of the Mining Regulations.
Mr Richmond submits that to conclude that the warden has power to order costs in circumstances where the warden has concluded that a valid application has not been made leads to an absurd result and an untenable construction of the Mining Regulations.
Regis submits that the warden does have the power to award costs under reg 165(4) of the Mining Regulations. Regis submits that the reference in reg 165(4) to the warden hearing and determining proceedings under div 3, is descriptive of the type of hearing being conducted, as opposed to a condition precedent requiring a valid application.
Regis relies on the fact that reg 165(1) provides that the starting point is that each party bears their own costs. Regulation 165(2) and reg 165(4) then identify two different situations in which costs may, nonetheless, be awarded. Regis submits that the reference to hearing and determining proceedings under div 3 is used in contradistinction to the power conferred in reg 165(2), which is concerned with proceedings under div 2 being forfeiture proceedings.
Regis submits that pt VIII div 3 only contains two regulations, both of which concern objections. Regulation 146 concerns making an objection and reg 147 concerns the procedure when an objection is heard together with a proceeding under div 2.
Accordingly, Regis submits that the words 'warden hearing and determining proceedings' includes a warden hearing proceedings with the person who has lodged an objection and for which there will be something determined. Regis submits that these are general words, and there is nothing in these words to suggest that these general words operate to exclude a warden who has heard and upheld an objection on the invalidity of an application, or the absence of jurisdiction, from making a costs order.
Regis submits that a contrary construction would lead to unreasonable and capricious results. Regis submits that the power in reg 165(4) to order costs against those who frivolously or vexatiously pursue proceedings should, sensibly, cover cases of applications that cannot lead to a valid grant. Regis submits that to hold otherwise would undermine the purpose of reg 165(4) of the Mining Regulations.
Is there a power for a warden to award costs?
Source of power to award costs
An administrative decision‑maker does not have any common law power to award costs, and any such power must come from a statutory source.[62]
[62] Queensland Fish Board v Bunney [1979] Qd R 301, 303; Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259 (S) [11].
There is not necessarily any legislative impediment to a statutory grant of a power to award costs in circumstances where an administrative decision‑maker, or tribunal, determines that they do not have jurisdiction to hear the substantive application. As explained by Quinlan CJ in the context of the State Administrative Tribunal:[63]
137The Tribunal's power to award costs is a statutory power, which arises in relation to a 'proceeding'. Leaving aside considerations arising out of ch III of the Constitution, there is no reason in principle why a State Parliament could not confer upon a court or tribunal (such as the Tribunal) the power to make an order for costs consequential upon an order dismissing a proceeding for want of jurisdiction. Indeed, given that a superior court (such as this Court) has jurisdiction to determine the extent of its own jurisdiction, there may well be occasions where an order for costs can be made following a successful application to dismiss a matter for want of jurisdiction.
138For this reason, I would leave for another day the question as to whether the Tribunal would be unable to make a costs order in every case in which it concludes that it is without jurisdiction. In particular, given that the Tribunal's jurisdiction will, in some cases, be determined by reference to the scope of State legislation, I would leave open the question as to whether there may be circumstances in which the Tribunal could make an order for costs following a successful application to dismiss a proceeding for want of jurisdiction (citations omitted)
[63] GS v MS [2019] WASC 255.
The scope of any statutory power to award costs is a matter of statutory construction.
Text
Owing to its centrality to the question of construction, it is helpful to set out the text of reg 165(4) of the Mining Regulation in full again:
Subject to subregulation (6) and in addition to the power to award costs under regulation 139, a warden hearing and determining proceedings under Division 3 may make an order for costs against a party if the warden is satisfied that the party —
(a) frivolously or vexatiously commenced or defended the proceedings, or any step in the proceedings; or
(b) otherwise occasioned undue delay in the proceedings.
The reference to 'Division 3' ought be understood a reference to div 3 of pt VIII of the Mining Regulations.
The term 'proceedings' is relevantly defined in reg 137(1) as being:
(b)when used in Division 3, means proceedings relating to an application under Part IV in relation to which an objection has been lodged; and
Accordingly, the text of reg 165(4), when read with the above definition of 'proceedings', is as follows:
Subject to subregulation (6) and in addition to the power to award costs under regulation 139, a warden hearing and determining proceedings under Division 3, being proceedings relating to an application under Part IV in relation to which an objection has been lodged, may make an order for costs against a party if the warden is satisfied that the party …
The text of reg 165(4) does not expressly address the scenario faced by the warden in the present case, being whether the power to award costs can be exercised in circumstances where a warden concludes that an application for a mining tenement is invalid, and therefore the warden does not have jurisdiction to hear the application for the tenement and make a recommendation to the Minister.
Given the broad meaning of the words 'relating to',[64] on its face the plain text of reg 165(4) would appear to extend to a situation where a warden hears an objection concerning an application for a mining tenement and concludes that the application is non‑compliant and that the warden therefore does not have jurisdiction to hear the application and make a recommendation to the Minister. That is because, in those circumstances, it may be said that hearing the objection involves proceedings 'relating to' an application made under pt IV in relation to which an objection has been lodged.
Mr Richmond's proposed construction
[64] Although these words must always be interpreted in their specific legislative context, they are ordinarily words of wide import. See Oceanic Life Ltd v Chief Commissioner of Stamp Duties [1999] NSWCA 416; (1999) 154 FLR 129 [56]; Commonwealth Bank of Australia v Garuda Aviation Pty Ltd [2013] WASCA 61; (2013) 45 WAR 92 [32].
Mr Richmond submits, however, that the proper construction of reg 165(4) is that the power to award costs is conditional upon a valid application for a mining tenement being lodged. This is because the reference in the definition of proceedings to an 'application under Part IV', is a reference to a valid application under pt IV. In circumstances where a warden finds that the application was not valid because one or more of requirements for a valid application are not met (for example a compliant s 58(1)(b) statement does not accompany the application), then there is never a valid application for the purposes of pt IV of the Mining Act, and never an 'application' for the purposes of the definition of 'proceedings' in reg 137(1) of the Mining Regulations.
Mr Richmond relies on the following two inter-related propositions in support of that submission:
(a)First, Mr Richmond submits that the reference to an 'application' in the definition of proceedings must be a reference to a valid application, given that conclusion has been adopted in respect of the meaning of 'application' in the context of other provisions of the Mining Act in Ex parte Hot Holdings Pty Ltd;[65] and
(2)Secondly, the principle that words are presumed to be used consistently throughout an act. Mr Richmond relies on the decision of Registrar of Titles (WA) v Franzon[66] in this respect.
[65] Ex parte Hot Holdings Pty Ltd, Hot Holdings Pty Ltd v Creasy (1996) 16 WAR 428, 444 (Steytler J, with whom Malcom CJ agreed on this issue).
[66] Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611, 619.
It is helpful at this stage to outline the authorities relied on by Mr Richmond.
In Ex parte Hot Holdings Pty Ltd, the Full Court of the Supreme Court considered whether orders nisi for writs of certiorari directed to a warden's decision to hold a ballot under s 105A of the Mining Act should be discharged or made absolute. The application had been remitted to the Full Court following the High Court decision in Hot Holdings Pty Ltd v Creasy,[67] in which the High Court held that a decision of a warden to hold a ballot was a decision amenable to certiorari.
[67] Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149.
One issue before the full court was whether each of the applicants had 'complied with the initial requirement in relation to their applications'. This involved, in relation to one applicant, a consideration of whether the failure to lodge a s 58(1)(b) statement until several days after the application had been lodged, meant that the applicant had failed to comply with the 'initial requirement'. Steytler J (as his Honour then was), with whom Malcolm CJ agreed on this issue, held that the reference to compliance with the 'initial requirement' in s 105A refers to lodging an application at the office of the mining registrar which complies with the requirements of s 58 of the Mining Act. Steytler J held that there can be no valid application for the purposes of s 58(1) of the Mining Act in the absence of the accompanying statement referred to in s 58(1)(b) of the Mining Act.
Registrar of Titles (WA) v Franzon concerned a situation in which the registered proprietors of land were the subject of a fraud by their solicitor who obtained and registered a mortgage over their property without their knowledge or consent. The question which arose for consideration was whether the registered proprietors were able to seek damages from the mortgagee or the registrar of titles under the relevant provisions of the Transfer of Land Act 1893 (WA). The court was required to consider the meaning of the term 'fraud' in the relevant sections. The court adopted the same definition as used in other sections of the legislation. For present purposes, it is sufficient to outline the legal principle relied on by Mr Richmond, which was explained by Mason J (with whom Barwick CJ and Jacobs J agreed) as follows:[68]
It is a sound rule of construction to give the same meaning to the same words appearing in different parts of a statute unless there is reason to do otherwise.
What is the appropriate construction?
[68] Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611, 618.
I do not accept Mr Richmond's construction.
The principle of construction referred to in Registrar of Titles v Franzon is the starting point, or the usual position, when construing a word in a piece of legislation. However, it may be displaced if there is a positive reason, to be found in the text, context or object of the provision or of the legislation as a whole, for doing so.[69]
[69] Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611, 618; NDA v The State of Western Australia [2023] WASCA 50 [41].
I am of the view that when regard is had to the text, context and purpose of the relevant provisions, the reference to 'application' in the definition of 'proceedings' in reg 137(1) includes a reference to a purported application, and therefore reg 165(4) confers power on a warden to award costs to a party in circumstances where a warden hears an objection concerning an application, including a purported application, for a mining tenement. Accordingly, I am of the view that reg 165(4) confers power on a warden to award costs to a party in circumstances where a warden hears an objection to an application or a purported application for an exploration licence, and concludes that the application is non-compliant and that the warden therefore does not have jurisdiction to hear the application and make a recommendation to the Minister.
The following factors are relevant to my conclusion in this regard.
First, the legislative scheme, in so far as it concerns an award of costs under reg 165(4), contemplates that the jurisdiction of the warden is engaged when (relevantly) an objection is lodged and heard and determined by the warden.
In order to put reg 165(4) in context, it is necessary to consider what matters are being heard and determined by a warden under pt VIII div 3 of the Mining Regulations.
Part VIII of the Mining Regulations is concerned with proceedings before a warden under pt IV of the Mining Act, which in turn is concerned with applications for mining tenements.
In the context of an application for an exploration licence, under s 57 of the Mining Act the Minister may, on the application of any person and after receiving a recommendation of the mining registrar or the warden in accordance with s 59, grant a person an exploration licence.
The process for the making of the recommendation to the Minister is detailed in s 59 of the Mining Act. Relevantly, s 59 provides for the lodgement of a notice objection to the grant of an application for an exploration licence. If a notice of objection is not lodged (or one is withdrawn) then the mining registrar shall forward to the Minister a report which recommends the grant or refusal of the exploration licence and sets out the reasons for that recommendation.
If a notice of objection is lodged (and is not withdrawn), then the warden shall hear the application for the exploration licence on a day appointed by the warden and may give any person who has lodged such a notice of objection an opportunity to be heard and shall, as soon as practicable, forward to the Minister a report which recommends the grant or refusal of the exploration licence and sets out the reasons for that recommendation.
That is, the warden only has a role in the process if a notice of objection is lodged.
Part VIII of the Mining Regulations deal with various matters concerned with those proceedings before a warden, including the service of documents (div 4); interlocutory orders and directions (div 5); the conduct of hearings before a warden (including attendance and that the warden is to act with as little formality as possible and is bound by the rules of natural justice, but not the rules of evidence) (div 6); and evidence (div 7).
Division 3 itself headed 'Objections under the Act Part IV' and contains only two regulations. Regulation 146 details how an objection shall be made, including the form to be used, the time for lodging an objection and service of the objection. Regulation 147 details the procedure to be employed when proceedings for an objection are heard together with proceedings under div 2.
Significantly, reg 137(2) provides that 'proceedings' for the purposes of pt VIII are taken to have commenced when (relevantly) an objection has been lodged.
When the above provisions of the Mining Act and the Mining Regulations are considered as a whole, what becomes clear is the only way in which the warden is ever required to consider an application for an exploration licence is when both an application for an exploration licence and a notice of objection has been lodged. If only an application is lodged, the application is considered by the mining registrar.
Secondly, there is nothing in the legislative scheme which prevents a notice of objection addressing questions going to the validity of an application for a mining tenement, or the jurisdiction of the warden to consider the application.
Thirdly, s 59(1) of the Mining Act provides that a person who wishes to object to 'the granting of an application for an exploration licence' must lodge a notice of objection. If Mr Richmond's submission is correct, then this reference to an application must also be read as a reference to a 'valid application'. This would have the result that a person can only lodge a notice of objection to a valid application and would be unable to lodge a notice of objection alleging the invalidity of an application and/or objecting to the jurisdiction of the warden to hear the application and make a recommendation to the Minister.
This would be, in my view, a surprising construction of s 59 of the Mining Act, and one which is not consistent with the context in which s 59 sits, or the objects and purpose of the Mining Act. It would deprive potential objectors, including those who are directly affected by an application for a mining tenement, from making objections going to validity and jurisdiction.
To the extent there are restrictions on matters which can be subject of a notice of objection, these are expressly stated. See, by way of example, s 59(1B) of the Mining Act which provides that a person is not entitled to lodge a notice of objection to an application for an exploration licence if the basis for the objection is that the exploration licence, or activities authorised by it, would affect an offsets project. See also s 75(1A) of the Mining Act which provides that a person is not entitled to lodge a notice of objection to an application for a mining lease if the basis for the objection is that (a) there is no significant mineralisation in, on or under the land, or (b) that the mining lease, or activities authorised by it, would affect an offsets project.
A construction of s 59(1) of the Mining Act which extends to a person being able to lodge a notice of objection in relation to an application, including a purported application, for an exploration licence, is more consistent with the context of the objections and approvals regime established by the Mining Act, and its objects and purpose.
Fourthly, the warden, as an administrative decision‑maker, has the authority to consider whether they have jurisdiction to hear an application for the mining tenement and to make a recommendation to the Minister. This is often described as the 'authority to decide', and the scope of that authority was described by Brennan J in Re Adams & Tax Agents' Board as follows:[70]
It follows that neither the Tribunal nor the Board can give a definitive answer to the question of constitutional validity. It is one thing to deny to the Tribunal and the Board the power definitively to answer the question; it is another thing to deny their competence to consider and to reach an opinion on the question. An opinion formed by an administrative body on such a question does not, however, produce any effect in point of law.
...
Although [an administrative body] cannot judicially pronounce upon the limits [of its authority] its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, so that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect.
[70] Re Adams & Tax Agents' Board (1976) 12 ALR 239, 241 ‑ 242; R v Hickman [1945] HCA 53; (1945) 70 CLR 598, 618, cited in Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216 [24] and [60].
When a warden is considering whether they have jurisdiction, it cannot have been intended by the Mining Act and the Mining Regulations that a warden can only consider the question of their jurisdiction for valid applications. Rather, a warden must also be expected to consider whether a purported application is valid and whether the warden has jurisdiction to hear the purported application and make a recommendation to the Minister. Otherwise, it is unclear how a warden could consider whether they have jurisdiction to hear an application which has been placed before them following the lodging of a notice of objection that alleges that that application is invalid and the warden does not have jurisdiction.
Fifthly, such a construction does not involve the reading in of additional words to the definition of 'proceedings' or the wording of reg 165(4) of the Mining Regulations. Rather, it involves the meaning of the existing word 'application' being construed in a manner which includes a purported application.
Sixthly, a construction of reg 165(4), and the definition of proceedings in reg 137(1), which includes a 'purported application' does not mean that the warden will end up exceeding their jurisdiction under s 59(4) of the Mining Act and hearing an invalid application for an exploration licence, and/or making a recommendation to the Minister in relation to an invalid application.
A warden who hears a notice of objection going to validity and/or jurisdiction has the authority to decide that question. If the warden concludes that the application is valid, they will continue on to hear the application and make a recommendation to the Minister in accordance with s 59(4) of the Mining Act. If the warden concludes that the application is not valid and therefore the warden does not have jurisdiction, then I am of the view that what has been occurring is that the warden has been hearing a purported application. The warden will then cease to hear the purported application and will not make a recommendation to the Minister. The situation therefore never arises whereby the warden hears an invalid application and makes a recommendation in relation to it to the Minister for the purposes of s 59(4) of the Mining Act.
Seventhly, such a construction is consistent with the objects and purpose of the costs regime contained in the Mining Regulations. Regulation 165(4) of the Mining Regulations establishes a power for a warden to award costs contrary to the starting point that each party bears their own costs. The circumstances in which that power can be exercised are where the warden is satisfied that a party has:
(a)frivolously or vexatiously commenced or defended the proceedings, or any step in the proceedings; or
(b)otherwise occasioned undue delay in the proceedings.
Matter (a) above includes consideration of the circumstances whereby a party commences or defends proceedings. This is sufficiently broad to include circumstances where an applicant's purported application is invalid in some way, and the applicant frivolously or vexatiously defends the proceedings before the warden. The evident purpose of this regulation is to provide the warden with the ability to award costs in circumstances where (in the opinion of the warden) the conduct of a party falls within the above categories and, in so doing, to compensate the other party for the costs of engaging in the proceedings in these circumstances. Mr Richmond's construction of reg 165(4) would undermine the objects and purpose of reg 165(4) by automatically excluding conduct which would otherwise have the potential to fall within the category of circumstances intended to fall within the scope of the regulation.
I also consider that such a construction is consistent with the broader purpose of the objection and approval process contained in the Mining Act, in that it facilitates the making of objections and the consideration of those objections by the warden.
Finally, nothing in the above construction is inconsistent with the reasoning of Steytler J in Ex parte Hot Holdings Pty Ltd, which was considering the interaction between the reference to the 'initial requirement' in s 105A and the requirements of a valid application under s 58 of the Mining Act.
Conclusion
For the above reasons, I would uphold ground 1 of the application for judicial review.
I will hear further from the parties in relation to the appropriate relief, including as to whether, in light of my reasons, each of the declarations sought are necessary or appropriate. I will also hear further from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MA
Associate to the Honourable Justice Seaward
19 SEPTEMBER 2025
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