Russell-Taylor v GOLDSTEIN & Martin

[2013] SAWC 1

Wardens Court of South Australia

(District Court Administrative and Disciplinary Division)

RUSSELL-TAYLOR v GOLDSTEIN & MARTIN

[2013] SAWC 1

Judgment of Senior Warden Dr Cannon

29 April 2013

MINING LAW

JURISDICTION OF THE WARDENS COURT

RUSSELL-TAYLOR v GOLDSTEIN & MARTIN
[2013] SAWC 1

1. This is an application to strike out this plaint on the grounds that this court has no jurisdiction to deal with it and that the relief sought is an abuse of the process of the court.

2. The plaint itself is an application that:

   “objects to the manner in which persons listed above (the respondents) have failed to act within the intent of relevant acts and regulations in relation to exploration lease applications: ELA924/04 and ELA925/04. Mr Russell-Taylor makes application for this matter to be examined and says:…”

3. These matters arise from circumstances that have been already considered in administrative review proceedings in the case Russell-Taylor v State of South Australia [2011] SASC 238 in the judgment by His Honour Justice Blue delivered on 21 December 2011 and by the Full Court in Mintech Resources Pty Ltd and another v Russell-Taylor and another [2012] SASCFC 67 delivered on 8 June 2012. There is a complaint that DMITRE “have worked in unison with the Crown Solicitor to act in contempt of the Supreme Court judgment of 22 December 2012.” He complains of conduct of the respondents subsequent to the Full Court judgment. The prayer for relief is that they withdraw the cancellation of exploration of lease applications ELA924/04 and ELA925/04 and respond to correspondence by the plaintor of 13 June and 31 July.

4. Before hearing the application to strike out his plaint I offered to disqualify myself but both plaintor and respondents agreed that I should continue to hear the matter and I did so on the understanding that I would not canvas any allegations of factual inaccuracy by officers of DMITRE who commonly appear before the court and in particular I had in mind Ms Martin, Ms Tyrteous and Ms Watson. I gave reasons at the time in relation to that issue and do not repeat them here. I also apologise for my delay in publishing these reasons.  The reason, but not excuse, is that in addition to my normal duties I have devoted a great deal of time to reviewing the Magistrates Court (Civil) Rules 1992 in anticipation of the commencement of a substantial increase in the jurisdiction of that court and this has made it hard to devote the time to this matter that it deserves. 

5. The plaintor at one stage worked with Mr Ivan Peter Lewis.   Mr Lewis has an interest in what Justice Blue described as the Goldus Group, namely Mintech Resources Pty Ltd, Goldus Pty Ltd, and Mawson Gold NL. In the proceedings before me there is an inference that Mr Lewis was also associated with Gladstone Resources Ltd.

6. Mr Russell-Taylor points to these matters:

   ·     On 19 February 2001 the Minister granted EL 2799 to Mintech Resources Pty Ltd for six months and this was renewed until 19 February 2004 (Blue J para.51).

   ·     On 17 July 2001 the Minister granted ELs 2822, 2823 and 2824 to Goldus Pty Ltd for one year which were renewed to expire on 17 July 2003 (Blue J para.60).

   ·     Mr Ivan Peter Lewis became speaker of the House of Assembly after the formation of the Rann Labor Government in March 2002.

   ·     On 12 February 2003 the Minister granted EL 3060 to Mawson Gold NL for one year.

   ·     On 8 February 2004 Mintech Resources Pty Ltd asked for a renewal, but it did not pay the application fee of $69, it did not pay the annual fee or $1,298.95 for 2004/2005 and did not later that year submit the technical report and semi annual reports that were due under the terms of the licence (Blue J para.54).  This licence was not renewed (Blue J para.53).

   ·     On 16 June 2003 Goldus Pty Ltd requested renewal of its three licences.  It did not pay the prescribed renewal fees.  The renewals were not processed by the Department nor granted by the Minister (Blue J para.61).

   ·     On 17July 2003 annual fees for 2003/2004 totalling $11,707.15 became payable for the three licences but were not paid.  The Department wrote requesting payment of these fees on 20 April 2004, 21 June 2004, 30 July 2004 and 15 September 2004 and in the last two letters warned that if payment was not made within seven days the licences may be cancelled (Blue J para.62). 

   ·     Goldus Pty Ltd did not submit the semi annual reports for the licences due on 17 February and 17 August 2004 nor the technical reports due by 17 September 2004 (Blue J para.63).

   ·     On 9 December 2004 Mr Russell-Taylor by letter drew these defaults to the attention of the Minister and applied for two Exploration Licences over the area in the ELs 2799 (Mintech Resources Pty Ltd), 2822 (Goldus Pty Ltd) and 3060 (Mawson Gold NL) and other land (Blue J para.65).

   ·     On 21 December 2004 the Mining Registrar, Ms Thomas, sent a minute to the Acting Executive Director recommending that the licences be cancelled and letters dated 21 and 22 December 2004, signed on 23 December 2004 were sent by registered mail cancelling licences 2799 (Mintech Resources Pty Ltd), 2822-2824 (Goldus Pty Ltd) and 3060 (Mawson Gold NL).  These were received on 29 December 2004 (Blue J paras.66-70).

   ·     Mr Russell-Taylor who had expressed an interest in the area was also notified of the cancellation (and found out by his own enquiries) and on 29 December personally lodged two new applications for ELs in identical terms of his applications of 9 December 2004 and paid the application fees of $442 and they were accepted by the Mining Registrar and designated ELAs 924 and 925 of 2004 (Blue J paras.72-3).

   ·     On 31 December 2004 PepinNini Minerals Pty Ltd lodged an application for an Exploration Licence which partially overlapped ELA 924 and areas within the former Mintech and Goldus licences. On 4 January 2005 Gladstone Resources Limited, lodged an application for an Exploration Licence which partially overlapped ELA 925 and part of the former Mawson licence (Blue J paras.75-6).  It is alleged by Mr Russell-Taylor that Mr Lewis was associated with Gladstone Resources Limited which he says was incorporated only two days before the Goldus licences were cancelled.

7. On 5 January 2005 Mr Russell-Taylor issued a plaint in this court complaining about the lenient treatment extended to the Goldus Group and seeking orders against officers of DMITRE. It was contended by both parties to that plaint that this court had no jurisdiction (for different reasons) and the matter was adjourned sine die. Those proceedings were called back on in June 2006 and listed for trial in December 2006. That trial date was vacated. A further plaint was filed on 13 February 2007 seeking orders that the court require relevant departmental officers to approve Mr Russell-Taylor’s Exploration Licence applications. His applications in the Warden’s Court were dismissed by consent on 19 April 2007 in anticipation of his judicial review proceedings which he commenced in the Supreme Court on 28 June 2007. Those proceedings sought an order that the Exploration Licences be granted to him (Blue J para.83).

8. On 18 January 2005 the Goldus Group filed notices of appeal against cancellations in the ERD Court and the Acting Mining Registrar wrote to the competing applicants, Mr Russell-Taylor, PepinNini and Gladstone advising them that their applications were on hold pending the outcome of the appeal. It also went on to state that any competing applications would be determined by a ballot (Blue J para.80).

9. On 20 October 2005 the Crown Solicitor’s Office advised DMITRE that, notwithstanding the companies in the Goldus Group were in breach of their respective licence conditions by failing to pay annual fees and by failing to lodge summary and technical reports, that there may not have been proper grounds to cancel the licences.  By the time this ERD Court application was filed the only current licences were those of Mawson and Mintech and it was recommended that the appeals by them be settled on the basis that the cancellation of those two licences be declared void and each party bear its own costs. It was noted that the three Goldus licences had expired due to the passage of time (Blue J para.81-2).

10. On 18 November 2005 the ERD Court made a consent order that the cancellation of each of the five Goldus Group of licences was void. The Mintech and Mawson licences also had expired in February 2005 and so there were no current licences reinstated as a result of that decision. However, Goldus had applied for renewal of its licences (but without paying the required fee for renewal – Blue J para.61) and on 13 December 2005 the Mining Registrar wrote to Mr Lewis advising him that the Department would now proceed to make a decision as to the renewal. She said:

    Where applications involve the same piece of land an assessment of the relevant merits of the application will be undertaken. (Blue J para.84)

11. In January 2006 Mr Lewis wrote to the Mining Registrar contesting this approach and claiming that the Goldus Group was entitled to reinstatement of all its licences without competition. In February 2006 Dr Paul Heithersay, the Executive Director, sent a minute to the Minister recommending that Mawson and Mintech be permitted to lodge applications over the areas within their expired Exploration Licences and that those applications be given priority over competing applicants due to the cancellations having been deemed to be void. He further recommended that the Minister grant renewals of the three Goldus licences:

    If Goldus provided the requisite information and if it were found that Goldus had complied with the conditions, Act and Regulations during the term for which the licences were last renewed’. (Blue J para.87)

12. On 16 February 2006 the Minister wrote to Mr Lewis and invited him to meet with departmental officers to discuss the lodging of new Exploration Licence applications. A meeting occurred on 18 July between Mr Lewis and Dr Heithersay and Dr Heithersay wrote on 17 August 2006 and recommended the Goldus Group apply for new Exploration Licences over the area of the expired licences. Mr Lewis’ pursuit of the Goldus renewals had been abandoned (Blue J para.89).

13. On 22 December 2006 Dr Heithersay wrote to Mr Lewis and ‘noted that no applications had been lodged and stated that he required that all necessary applications and documentation be lodged on or before 28 February 2007 after which the Department would proceed to determine all undecided applications’. (Blue J para.90) It was not until 27 February 2007, the day before the final date given, that Mawson lodged an Exploration Licence application (ELA99) in respect of part of the area previously held by it and Goldus lodged an Exploration Licence application (ELA101) in respect of part of the area formerly held by Mintech (and the name of the applicant was later changed from Goldus to Mintech). Goldus lodged an Exploration Licence application (ELA116) in respect of portion of an area previously held by it on 2 March 2007, after the expiry date that had been given but it was accepted (Blue J paras.90-93).

14. On 20 July 2007 the Acting Mining Registrar wrote identical letters to all current applicants making it clear that the success of the applications would be determined by a technical panel of departmental officers, not by order of lodging nor by a ballot (Blue J para.90).  On 9 August 2007 Gladstone withdrew its application (Blue J para.102).

15. The panel met, assessed the applications and ranked Mawson as the preferred applicant in relation to area one, PepinNini in relation to areas two and three and Mintech in relation to areas four and five and Exploration Licences were offered to those companies in respect of those areas. Mr Russell-Taylor and Goldus were only offered Exploration Licences to the extent that their applications covered uncontested areas. Mr Russell-Taylor was allowed to make further submissions but they were to no avail (Blue J para.108-121). Those decisions were put on hold as a result of an injunction in the Supreme Court judicial review proceedings but ultimately once those proceedings were resolved that was the outcome.

16. The departmental information sheet at that time contained the following passage:

    Applications are treated on a first come, first served basis. If two or more applications arrive for the same area on the same day, priority will be based on the relative merits of the applications.  (Blue J para.127)

17. The Warden’s Court jurisdiction concerns mainly Claims of various types and Leases of various types and disputes between landowners and miners. Claims and Leases are historic mining titles and priority between them is almost invariably dealt with on a first come, first served basis. The exception of which this court is aware, is the circumstance where a particular block of land is released on a date that is anticipated by miners and so that competing applicants are all ready to peg at the one time. To avoid the obvious conflict that a first come, first served basis would lead to in that circumstance, the Department on such occasions has used a ballot system. For example, this occurred when land in the old Mintabie airstrip was released for opal mining.

18. It is to be expected that these well established principles that have been the method of resolving competing interests in the industry for well over a hundred years should find their way into the basis of allocating Exploration Licences. Exploration Licences are a departure from the traditional mining titles and rather than being managed by pegging on the ground, which would be impractical because they are granted over such large areas, they are managed administratively within the Department. In my term as Senior Mining Warden for 25 years I am not aware of this Court ever having to rule upon the priority between competing Exploration Licence applications or on the consequences of a failure to observe the terms of a licence. The jurisdiction of this Court, for the purpose of this application, lies in Section 67(1) of the Mining Act 1978 which provides:

    (1)   The Warden’s Court shall have jurisdiction to determine, in such manner as may be just, all actions concerning any right claimed in, under, or in relation to, any mining tenement or purported mining tenement.

19. This directs the work of the court to matters that arise from a tenement or purported tenement rather than giving the court any jurisdiction over the process whereby the tenement is granted. For that reason it seems clear that this Court does not have jurisdiction to permit an investigation of, nor interfere with, the process of granting of Exploration Licences.

20. This Court has a substantial jurisdiction in relation to breaches of the terms and conditions of Claims and Leases. This Court has always taken the view in relation to Claims and Leases that the conditions must be strictly complied with, otherwise miners may feel free to ignore their obligations. However, the process for enforcing the obligations under Exploration Licences is administrative and under the direction of the Minister.

21. Section 33(1) provides:

    (1)   Where the holder of an Exploration Licence has contravened, or failed to comply with, any provision of this Act or any condition of the licence, the Minister may suspend the licence (in which case the licence shall, during the period of suspension, be of no force or effect) or cancel a licence.

22. Section 33 grants an appeal against that cancellation to the ERD Court, as was exercised by Goldus in the circumstances here.  The grant of jurisdiction to the ERD Court over such appeals makes it clear that the Warden’s Court has no supervisory jurisdiction over the non-compliance with conditions in Exploration Licences.

23. It will be noted that I have drawn my summary of facts from the judgment of his Honour Justice Blue in Russell-Taylor v State of South Australia & Ors [2011] SASC 238 delivered on 21 December 2011. His Honour dealt comprehensively with most of the issues raised in this Plaint and to the extent that his Honour has traversed those issues, that is a matter of res judicata, or simply put, once a court has given a final decision on an issue the only remedy lies in an appeal from that court.   The same case cannot be litigated again in any court and certainly not in one lower in the hierarchy of courts.

24. Paragraphs 7 to 12 of Mr Russell-Taylor’s plaint traverses issues subsequent to the Supreme Court judgment. To that extent they may not be covered by the principle of res judicata. Those paragraphs make complaints about the subsequent conduct of DMITRE and that it has ‘worked in unison with the Crown Solicitor to act in contempt of the Supreme Court judgment of 22 December 2012.’  The jurisdiction over contempt lies within the court against which the contempt may be shown, in this instance the Supreme Court.  To the extent that paragraphs 7 to 12 complain of the process of offering and granting of new Exploration Licences, for the reasons given above, this Court has no jurisdiction to entertain an application in relation to those processes.

25. This court has no jurisdiction to consider any issues of which these facts may speak.  The plaint is dismissed.

26. The Crown has made it clear that it limits its application for costs to a quite modest amount. In all the circumstances, I am not convinced that the Crown is entitled to any costs in relation to this matter and I decline to make an order for costs. Having given that determination, I make it clear to Mr Russell-Taylor that should he take a further application in this Court in relation to these matters, he can expect, if he is unsuccessful, to have costs awarded against him on the usual basis.

27. I shall have my staff send this judgment to the parties by post.  The deemed date of delivery will be 29 April 2013 by which date they should have received it.  I give liberty to apply.