Savage v Blackhill Minerals Limited

[1988] HCATrans 151

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No PS of 1988

B e t w e e n -

CHRISTOPHER SAVAGE

Applicant

and

BLACKHILL MINERALS LIMITED

and MACAPA PTY LTD

Respondents

Application for special leave

to appeal

MASON CJ
BRENNAN J

TOOHEY J

Savage

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 AUGUST 1988, AT 11 .56 AM

Copyright in the High Court of Australia

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MR A. CAMP:  Your Honours, I appear for the applicant

in this matter . (instructed by Granich & Associates)

MR P. BLAXELL:  May it please the Court, I appear for the

respondent. (instructed by D.L. Johnston)

MASON CJ:	Yes, Mr Camp.
MR CAMP:	One matter of public importance in this case,

Your Honours, is the likelihood of the Full Court

reasons leading into error in cases on the exercises

of the warden's discretions, in two respects.

And those errors - I will come to the two respects - but

those errors will arise in the context of the 1978

MINING ACT, either under the conversion provisions

section 49, and the conversion provisions are referred

to in paragraph 15 of my summary - that is the last
paragraph - paragraph 15(d), in particular the
striking resemblance between those provisions and
the transitional provision clause 8(3)(b) and
clause 8(3) (c) and clause 3(2) of the second schedule

of the 1978 Act.

So what I am saying is simply that the error

of the Full Court, or the likely error that the the warden's exercise of discretion under the 1978 Act in the context of conversion provisions, or conversion applications, and secondly generally, in

any event, where the warden's discretion is

exercised, or where the warden is called upon to

determine whether a fact is irrelevant and unable

to be taken into account in the exercise of his

discretion under the 1978 Act; the likelihood of

error following the Full Court reasons arise in this

way. Before the Full Court there were two grounds

upon which judicial review was sought.

(Continued on page 3)

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MR CAMP (continuing): The first ground - and both grounds

are set out in the reasons for decision of both

Their Honours, Mr Justice Wallace and

Mr Justice Olne_y, with whose reasons

Mr Justice Smith agreed. The first ground was

in terms that the warden's finding amounted to

a finding that the purpose of the holder of the

mineral claims was not the purpose that was known
to or recognized by the statute and the issue
that arose from the ground was whether, it being
the case that there was no other reason why the
tenement should not be forfeited, whether the

warden could find or could hold - could decide

other than to forfeit.

MASON CJ:  But when you speak of the holder's purpose,

what do you have in mind, the holder's purpose

in doing what?

MR CAMP:	The holder's purpose, Your Honour, in exercising
his rights and complying with his obligations
under the grant of the tenement.
MASON CJ:	But the holder held a relevant tenement and

the question was what action should be taken

by reason of breach of the labour conditions?

MR CAMP:	That is how the question arose because there
was a breach of the labour conditions. We say
two questions really arose.  The first was, in
the circumstances of this case, not only did the warden find a complete breach of labour conditions but that his finding amounted to a statement or a holding that the tenement or that the holder
of the tenement did not have a purpose which
was acknowedged and known to the statute - to
the legislation.

TOOHEY J: Mr Camp, I am not clear whether you are saying

that there was no discretion in the warden, he

having found a breach of labour conditions to

have occurred or that there was a discretion but it was exercised on some wrong principle?

MR CAMP:	Your Honour, before the warden and before the
Full Court there were two questions. The second,
if I can go to the second, briefly, was that
he had a discretion but that he took an irrelevant
consideration into account.  But the first ground
was that although he had a discretion we were
not saying the discretion was removed. We were
saying it was foreclosed, if you like. We were
saying that upon a proper view of the relevant
legislative provisions the warden was required
to understand that the provision for forfeiture
required that there being no purpose or reason for
the tenement to continue to exist, it was required of him to forfeit the tenement.

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TOOHEY J:	I am not sure that I understand that.	Are you

saying that no relevant purpose having been found

there was simply no other basis upon which he

could exercise his discretion not to forfeit

or that as	a matter of law no discretion remained
in him?

MR CAMP:	The former, I think, Your Honour, is really the
question raised by the first ground before the
Full Court and might I illustrate the difference.
On an application for forfeiture where it is
established that there has been a breach, it might be that the breach is serious in the sense that there has been some compliance but that
it is still serious. In a case where, as with
this case, there was a finding that there had
been a complete breach, that is, no compliance
whatsoever, then not only is there a breach of
condition but the immediate question arises -
I am not saying it is answered by the finding
of a complete breach but the immediate question arises whether there is any reason for the tenement to continue in existence.

In this case we would say the warden's finding

went further than just a finding of a complete

breach. It amounted to a finding that the whole

of the tenement had conceded his abandonment
of it and that there was no reason for the tenement

to continue in existence. Or, at least, that

is what the warden should have concluded.

(Continued on page 5)

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BRENNAN J:  When you say abandonment of it under the new Act,

he was given a priority right to a mining lease,

was he not?

MR CAMP:  If I can just answer Your Honour's question this

way. The question before the Full Court and for the

warden was whether the transitional provisions
provided a purpose or made relevant the fact of

the application for a transitional provision. In

our respectful submission, both of those questions

were required to be determined by consideration

of the scheme and purpose of the transitional
provisions and it is submitted the transitional
provisions scheme and purpose is to provide,

firstly, for · transition, and does that in the

case of mineral claims by expressly subjecting the

currency or the life of the transitional application
to the holder's obligation, that is, the holder of
the mineral claim obligation to comply with the

conditions attaching to it under the 1904 Act

and, further, the transitional provisions subject

the life and currency of the transitional application

to the exercise of the warden's discretion under the

1904 Act.

What I say _is,in my submission, the necessary

consequence of the transitional provisions rendering
the life and currency of the transitional application,

subject to the exercise of the warden's discretion,

is that the fact of the transitional application

cannot be relevant to the exercise of his discretion

in a case where there is no basis, or no other

relevant reason for the tenement to be other than

forfeited.

BRENNAN J:  I rrilst_ say,for the moment it escapes me why it is

that if the discretionary power under the old

regulation 178 is given its current validity by

the 1978 Act, by the exercise of the- ·discretion

under regulation 178, should not rightly take

into account the operation of the 1978 Act?

MR CAMP:	Well, Your Honour, our point now is - I do not think it was expressed quite that way before the
warden - that the warden must, in order for him to determine what is relevant or what is irrelevant and cannot be taken into account, he must consider
the scheme an~ purpose of the transitional provisions
and it is under those provisions, and in particular
clause 8(3)(b), that his discretion power is
preserved.  That, as Your Honour points out, is
regulation 178. But the warden then must determine upon an application of proper principle, namely upon
reference  -to relevant provisions or notions that
are derived from those provisions, whether or not
the fact that he wants to take into account can be taken into account or is irrelevant and cannot be

C2T15/l/MB	5	5/8/88
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taken into account. What, in my submission, is the

position upon a proper consideration of the

transitional provisions purpose and scheme is to render irrelevant to the warden's discretion the

fact of a transitional application. That is the

necessary consequences, I have said, because the

transitional provisions themselves render the

very application,or the right to the grant of it,

subject to the exercise of the warden's discretion.

So to test my proposition - and this case is a

good example of such a test - in a case where the warden has no reason to do other than forfeit the

tenement, which was the warden's finding, and

when he turns to the only questions left relevant,

or said to be relevant, he is, in effect, for all

intents and purposes deciding whether the

transitional application should go forward.

He says, "In deciding whether it should or it should

not, I take into account that it exists."

(Continued on page 7)

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MR CAMP (continuing): That absurdity, in my submission, reveals

the absurdity, as it seems, in my submission, that it

is, saying that the transitional applications, in

rendering the life and currency of the transitional

applications subject to the exercise of the warden's

discretion, intend other than to mean that the fact

of the transitional application or the period of

the transition in such circumstances relating to the

transitional application can be other than irrelevant.

MASON CJ:	Yes, Mr Camp.
MR CAMP:	In my submission, Your Honours, if the warden had

applied, or if the Full Court had applied also, a

correct approach to the question of determining whether

the fact taken into account was irrelevant, and. that

approach being to consider the scheme and purpose of

the transitional provisions, then the conclusion that

would have been arrived at would be that which I say

should have been arrived at. The warden, in his reasons,

shows or reveals that he did not apply his mind to
the question of what the transitional provisions
intended.and the Full Court not only did not state the issue
raised or refer to the second ground, but in the

Full Court's judgments passing reference or reference

to what the warden had done, was a description of what

he had done and not an analysis of whether or not
he had considered the scheme and purpose of the

transitional provisions.

The Full Court should have applied their minds

to that question. In that they did not, their reference
and apparent endorsement of the warden's reasoning
will, in the future ,lead to error, in so far as the

warden's reasoning - I refer Your Honours to page -

starting at page 16 - may I quickly summarize and say

the warden's reasoning goes	through the factors
that were put up to be taken into account by him.	It

is apparent that the warden is referring to the reasons

and applying his mind to what - applying considerations

to what he thought ought to determine whether or not

a fact was relevant or irrelevant. Nowhere in any of

his reasons does he refer to the relevant statutory

provisions or use notions or reason from notions

or ideas that can be recognized to have been derived

from relevant statutory provisions or the scheme and

purpose of the legislation under which he was exercising

his discretion.

TOOHEY J~ Mr Camp, if you had succeeded before the Full Court,

would the matter have gone back to the warden? Or

would have been asking for some sort of order of

the Full Court that would have had the effect of

forfeiting the - - -

MR CAMP:	No, it would have had to have gone back to the warden.
TOOHEY J:	So it would have had to go back to the warden?

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MR CAMP:	Yes, it would have gone back to the warden.	If the

applicant before the Full Court had succeeded on

the second ground, it would have gone back to the

warden to decide the exercise of his discretion, but

with direction not to take into account the irrelevant

fact - circumstances that he did. If it had been

decided on the first ground, it would have been

sent back to the warden with a direction that, in the

circumstance - or that the warden was satisfied that

there was no reason for the continuing existence of the mineral claims, then the warden should forfeit.

But, in any event, it would have to go back to the warden.

TOOHEY J: Yes.

MR CAMP:	Your Honours, the warden's reference to the passage -
the warden, in incorporating the passage from the
case of the MINISTER FOR ABORIGINAL AFFAIRS V
PEKO-WALLSEND, which is set out at page 15 of the book,
is not followed by any reasoning of the warden that
shows that he understood the principle that that
passage intends to be applied by a discretionary decision-maker called upon to determine whether or not
a fact is irrelevant and unable to be taken into
account.

BRENNAN J: Mr Camp, what is the provision of the second schedule

or other transitional provision of the Act which gives

vitality forthe purposes of clause 3 of that

second schedule, to r.egulation 178 of the old r.egulations?

(Continued on page 9)

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MR CAMP: It is, Your Honours, in fact clause 8 which applies.

In clause 8(3)(b) is where my contention starts

and ends in clause 8(4). If I can go to 8(3)(b),

the words of the amendment, and I understand

Your Honours would have before you a photocopy

of two pages of my Act which have updated these

transitional provisions - the latest amendment

which is what I am referring to is section 27 of

Amending Act 105 of 1986.

MASON CJ: Section 27 of Amending Act 1986?

MR CAMP:	105 of 1986, yes, which amended by substituting
the whole of clause 8(3)(b).  Your Honours, I understand
from the library of the High Court that your papers
will not include that amendment.

MASON CJ: It looks to me as if though do not.

MR CAMP:  And the people in the library asked me for

a photocopy of that amendment which I sent to them

and we confirmed that it was received. Now, it

should be a photocopy of pages on the back of your

papers.

MASON CJ:  Can you hold up the page that you would have sent

through and then we may be able to identify it.

BRENNAN J: Is that page 105?

MR CAMP:	105 is where the original is - yes, that is it -
and the attaching page is where the amendment
appears.
BRENNAN J:	Now, on the attachment page where do we find 8(3)(b)?
MASON CJ:	Does it start, "The holder of the mining tenement

under the repealed Act"?

MR CAMP:  Yes.

MASON CJ:	And that is the end of the first lin~ is it?
MR CAMP:	Yes, that is it and the relevant amendments to
the former - and may I quickly summarize the effect of that provision: it is that the holder of a mineral claim could apply for a transitional
application.  The original form of the provision
was that his right to apply was subject to the
Act. The amendment made not only the right to apply but the right to the grant subject to
this Act.
BRENNAN J:	What gives the right to somebody who held a m1n1ng

tenement under the repealed Act to apply for a

mining lease under the new Act?

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Savage
MR CAMP:	Your Honour, there was a dual scheme.	One was

the holder of a lease under the old Act, then there

was an automatic deeming - an automatic transmission,

but if one was the holder of a mineral clai~ which

is an animal of the regulations of the old Act,

in a lesser tenement then one had to continue to

comply with the regime of the old Act and be subject

to it pending an application made under the
transitional provisions, namely, clause 8(3)(b)

to which we are referring.

BRENNAN J: Well, I see that.

MR CAMP:	So the relevance of clause 8(3)(b) is that the holder of the mineral claim has the right to the
grant and that the right to the grant therefore
depends upon him remaining holder. Secondly, that
it is subject to this Act and this Act of course,
if one refers to clause 8(4), subjects the mineral
claim to the repealed Act. Clause 8(4) provides
by amendment in section 30, Amending Act 122 of 1982,
that the mineral claim continues in force:

subject to the repealed Act and as though

that Act had not been repealed -

is the first point of importance and the second

point -

until that application -

that is the transitional application

1s finally disposed of under this Act.

BRENNAN J:  Now, Mr Camp, the provisions which subject the

mining tenement under the repealed Act to the

forfeiture provision in regulation 178 of the repealed

Act are therefore provisions which confer upon

the holder of the relevant tenement a right to

apply for and, subject to certain conditions, to

be granted inter alia a mining lease under the

new Act.

MR CAMP:  Yes.

(Continued on page 11)

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BRENNAN J:  How can it be that in exercising the repeal power

under regulation 178 the warden can be precluded from

taking into account the expectations of the holder

of the mineral tenement to the obtaining of a mining

lease under the new Act, when it is that very

provision which activates the old regulation 178?

MR CAMP:  Yes. The answer falls to be determined by

consideration of the very provision, that is the

scheme and purpose of the transitional provisions

and, in my submission, the scheme and purpose of
the transitional provisions in the case of a

mineral claim, as opposed to an old lease, require

compliance with the former obligations and subject

the holder to the risk, if you like, of the warden's

exercise of discretion, but - - -

BRENNAN J:	Of course it subjects it to the risk, but the question is in the quantification of the risk,
if you like to put it that way, why should it not
MR CAMP:	Yes, that is, of course, the very point, but in my

submission, the transitional provisions, in subjecting

the life and currency of the transitional application

to that risk, necessarily cannot be intending that the

fact of the life and currency of the tenement can be

relevant, in any case, but in the case which I earlier

cited as an example, or a test case, if you like,

I set it up to show an absurdity, and I rely on the

absurdity to prove the point. I do not know whether

I was going over it more quickly than I ought to have

and whether Your Honours want me to repeat my test

case, but on the facts before the warden the warden

found, it was his finding that there was no other

reason for not forfeiting the tenement.	That is at
page 23 of his reasons.

He has just referred to, at the end of page 22,

the provision for exemption, so the rights of the old

mineral claim holder had the right to apply for and

be granted exemption and had done for a time, but then

for a time had not, and the warden concluded that:

In my opinion the existence of these

provisions would oblige the Warden

in the absence of any special

circumstance to forfeit for any

failure for a time when no such

license or exemption was operative.

That is the conclusion, Your Honours, of the whole of

his reasoning beginning after his reference to the

passage from PEKO WALLSEND and continuing through

pages 17 to 23 where he referred to the facts of a

complete failure, that is that there had been

no persons engaged or no machinery engaged on

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the tenements in question at all throughout their

life, and other facts that I might say, or describe

as being facts that would have been taken into

account under the 1904 Act. Then at the top
of page 23 he comes to the conclusion of his reasoning

on those 1904 Act considerations, and then says,

at line 6:

I now arrive at what I consider to be a crucial issue.

He goes on to say in the following four pages

that the fact that the holder of the mineral claim

had applied for the transitional application to

entitle him to search for gold was a matter that he had

to give great weight to. His reasoning, as I have

said, does not refer to the transitional provisions.

He certainly does refer to the transitional provisions

at page 23, but only for the purpose of setting the

background to what he is considering. His reasons

that appear at page 24 and following are in terms of

his own form of fairness or logic which do not refer

to the transitional provisions.

Now, what I am saying is that in such a case as

this then the warden is determining only whether the

transitional application should go forward. To

drive that point home, the holder of the mineral claims

had no right to search for gold, pursuant to the
holding of his mineral claim, and that was quite clear

and the warden was conscious of that.

(Continued on page 13)

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MR CAMP (continuing):	The warden was determining then not

whether the mineral claim should continue to exist

for some reason or purpose for which it was granted

but was determing, for all intents and purposes,
whether the transitional application should go

forward because the only conceivable reason for

the mineral claim to remain on foot would be to

provide some - shall I call it a jurisdictional

base - for the continuing currency in life of the

transitional application. So that the warden then

is simply asking himself the question whether the transitional application should go forward and he

answers it by saying, "I will take into account and

give great weight to the fact that the transitional

application has been made." That, in my respectful

submission, is an absurdity and illustrates that it

could not have been the intention, indeed, was the

intention of the transitional provisions to exclude

as irrelevant, in the exercise of the warden's

discretion the fact of the transitional application.

Now, Your Honours, the scheme might have been

otherwise. The scheme of the transitional

provisions might have been that, notwithstanding ·the

forfeiture, the minister was empowered to consider

the mining lease and grant the mining lease
application. The reasoning that Your Honour is
referring to and, I think, the reasoning behind

the warden's thinking - or the thinking behind

the warden's reasons, I should say - is that that

would not be a surprise if despite forfeiture

the minister was empowered to proceed upon the

transitional application and grant it. But my

point is simply this, that the transitional provisions
provide otherwise, and in providing otherwise the

necessary implication is that the exercise of

discretion - or in quantifying the risk, as

Your Honour puts it - cannot be taking into account.

the very thing which is subject to the risk.

TOOHEY J:  Mr Camp, what it seems to me the warden was saying

was this. When the transitional provisions came

into effect they permitted the respondents to

seek a mining lease which if granted would give

them the right to mind for gold, a right which

they did not hitherto have under the mineral claim

which had been granted to them under the old Act.

But an application having been made for a mining

lease, then while that application was on foot

and until it had been determined, it was a bit

unreal to expect the respondents to keep on working

when the mineral in which they were primarily
interested was gold which they had no right to

mine unless and until a mineral lease was granted. Was

it not during the period in respect of which

the application for a mineral lease had been made

that the breaches were said to have occurred?

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MR CAMP:	Yes, for the whole of the period, I think.	Yes,

in that period, yes, that is correct.

TOOHEY J:  Well, that would give some force to what the

warden is saying, namely, during that period why

should I, as it were, forfeit the lease because the

respondents have taken no action during that period,

they waiting until they know the outcome of their

application for a mineral lease?

MR CAMP:  Yes, I agree that is appropriate reasoning, perhaps,

and that it might be a bit unreal but, in my respectful

submission, the answer to Your Honour's point is

that the statute so provided.

TOOHEY J :  . In a sense that begs the question. Why do you say the

statute so provided?

MR CAMP:  Can I answer Your Honour's question this way. In

my submission, the only way you can agree with the

warden - and I am not saying that as a matter of

what some people's minds might seem fair, who cannot

agree with the warden - the only way you can agree

with the warden is if you apply reasoning which

says, "Is it not a bit unreal or is it not a bit

unfair that the holder of a mineral claim who was

obliged to pursue the purpose of the grant of that claim,

namely pursue base metals,then should have to comply
with his ~bligations if he does not want base metals."

(Continued on page 15)

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TOOHEY J:  No, he should have to comply with his obligations

in the sense of running the risk of forfeiture

if he has applied for a mineral lease which the

transitional provisions contemplate that he will get or

is likely to get and during that period takes

no active steps to comply with the conditions

because he is waiting on the outcome of his

application for a mining lease.

MR CAMP:	The beginning of the answer, Your Honour, is
that the transitional provisions contemplate
a  transition for the holder of a person active
under the holding of a tenement for base metals
to a tenement that enables him to pursue that purpose and the transition provisions provide - or at least the transition provisions provide
transition to a new scheme which, incidentally,
grants the power to the base metals miner the
power to mine for gold but the transition provisions
are not thereby providing for transition from
a base metals tenement to a gold tenement. I
could understand the reasoning or the logic behind
what Your Honour is putting to me if that was
the case but the transition provisions recognize the scheme of the old Act and proceed on the assumption that the purpose of a tenement holder holding a base metals tenement was to pursue base metals.
TOOHEY J:	You seem to be suggesting that the warden, as

it were, ignored the breach. The warden did

not ignore the breach but he said, "In the

particular circumstances", and we have been through

them, "forfeiture would be an undue penalty to

impose. I wi 11 therefore impose a fine. 11 It

is not as if he said, "Well, I do nothing." He had alternatives open to him and, in the circumstances of the particular case, he considered

that a fine was more appropriate than forfeiture.

MR CAMP:	Yes. All of what I say, Your Honour, is based
on simply this, that the warden was of the view
that the tenement should be forfeited but for the fact of the transitional ;:_~_p:p_lication and the time of its transition. And it is my respectful submission that that is the very thing, if you
like, that the transitional application was making
subject to the warden's discretion. To then say
that the legislation intended the very thing
that was subject to the discretion could be taken
into account cannot be right.

MASON CJ:  But why? To take the opposite point of view

would be effectively to deny the holder of the
mining tenement of the fruits of his exercise

of his statutory entitlement, that is, to apply

for the gold-mining lease. He had exercised

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that entitlement, he was awaiting the realization

of it; to exercise the discretion one way only,
in favour of forfeiture, would be to deny him

the fruits of it.

MR CAMP:	But with respect, Your Honour, the denial was
provided for by the transitional provisions because, in effect, it was saying there was no work done,
there was nothing to bear fruit.  The transitioral
provisions were making the very right to apply
subject to compliance and subject to the continuing
regime, that is, the obligations and continuing
pursuit of the purpose of the original grant.
MASON CJ:	But that is to assume that the discretion does

not apply in the circumstances which you mention.

MR CAMP:	Whether it is to say that the statute intended that there be no discretion or that the discretion
being exercised cannot take into account the factor is perhaps just a matter of words but -
I do not know whether I am answering Your Honour's
point. It seems to me that was the very point
of the transitional provisions.

MASON CJ:  Yes. What you are saying is that there 1s a

negative implication when you come to construe

the provisions in their entirety, particularly

in the context of the transitional provisions,

and that is the critical question.	Can you get
this negative implication out of it?

(Continued on page 17)

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MR CAMP:	Yes, that is right. That is the question.
MASON CJ:	Well, we really have covered the ground, have we not?

There is not much more that can be said about it.

MR CAMP:  No, I do not think so, Your Honour. Perhaps just to

refer to what the transitional provisions had in mind

when it preserved the old regime. That was not only

the obligations I have referred to, but also the
right to obtain exemption, if there was proper grounds

for exemptions, and under ·regula.tion55 that was an

exemption provided by the minister. The scheme of

the transitional provisions, if the warden's view

was correct, would be, in effect, to provide a form

of exemption, if you like, at the hands of the warden

and that, in my respectful submission, is the distinct point, that in the case of a transitional application

it could have left the discretion to the minister, or

it could have indeed said that the warden - well, it

could have left the discretion to grant the transitional

application to the minister, or it could have set up a

scheme whereby there was an automatic transmission;

but it did not.

That is all there is to be said about the

irrelevant gr0und, that is the second ground that was before

the Full Court. I think that the first ground really

merges with it. Before the Full Court, or in the

reasons of the Full Court, Their Honours saw only one

issue as arising, and they misstated what that issue was.

His Honour Mr Justice Olney misstated the issue as

being the consequence of an unlawful holding of a

tenement. That was not a question raised by the ground

and was not argued. It was argued before the Full Court

that the consequence of the holder of the mineral claim

having a purpose or an intention of conduct which was

contrary to the purpose of the grant of the mineral
claim was unlawful, but it was never put on the basis

that the holding itself was unlawful. His Honour then

relied on what he saw as an estoppel.

MASON CJ:  Well, we are not so much concerned with that. We are

concerned with whether or not the warden took a correct
view of the matter; whether these matters were open to

be considered by him.

MR CAMP: Well then, I take your point, Your Honours. Before

the warden - the other issue which I have said is a

related issue, although, in my submission, distinct,

was simply thi? question of whether, given under

the scheme of the 1904 Act there was no purpose for
the continuing existence, or no reason for the tenement

mineral claim to continue in existence - - -

MASON CJ:  Yes, well, that is to return to the ground that we

have already covered.

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MR CAMP:	Yes, although I return only to make this point,
Your Honour - to distinguish between the failure to
take into account, or the relevant consideration
question, and this: that the warden was seeing in the transitional provisions provision of a purpose other
and separate or further than that which existed
under the 1904 Act.  But I do agree it is a related
point, although, in my submission, distinct. That is
all I can say about the warden's. There was one
other point: that was that, upon a proper construction or consideration of the subject-matter, scheme and
purpose of the 1904 Act, an application for a mining
lease for gold could not be relevant to the exercise of the warden's discretion on whether to forfeit a
mineral claim.

The scheme of the Act is quite clear. All the

way through it is a distinction between base metals

and gold. Regulation 55(15) that His Honour

Mr Justice Wallace referred to for a different point,

but none the less referred to highlights the

distinction and highlights it by making express

provision for an applicant or a holder of a mineral

claim to apply for a mining lease for gold and gives

preference, but only in a circumstance where gold is

discovered in the course of, or directly resulting

from the holder's activity for base metals. The point

of the 1904 Act is that if the holder of a mineral
claim had applied for a holder of a mining lease
for gold or a holder of a tenement for gold in respect
of that ground, then it could not be relevant to the
question of whether the life of the mineral claim

should continue, that an applicant had applied for a

gold tenement and it could not be because there was no

provision which made the currency and life of the
application for the gold tenement dependent upon the

mineral claim and in the event - - -

(Continued on page 19)

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BRENNAN J: Mr Camp, this is only saying that if there had

been no transitional provisions this problem would

not have arisen.

MR CAMP:  No. I am simply saying that that was the scheme

and the transitional provisions did not change

that scheme; they preserved it.

BRENNAN J: That may be so.

MR CAMP:	They preserved it; that is the point, Your Honour. So if what I am saying about the 1904 Act is right
then it is in direct contradiction to what the
ward~n.saw was provided for by the transitional
prov1s1ons.
BRENNAN J:	Your case is simply that the 1904 Act was a

relevant statutory framework; the discretion falls

to be exercised in the light of that framework

and the transitional provisions make no difference.

That is your argument, is it not?

MR CAMP:	That is right.
BRENNAN J:	Well now, the question is whether that is right

or wrong.

MR CAMP: In my submission, it is only answered by reference

to the words of the provision which -

BRENNAN J: That is right.

MR CAMP:  Yes. If it please Your Honours, that is my application.

MASON CJ:  Yes. Thank you, Mr Camp. The Court need not

trouble you, Mr Blaxell.

MR BLAXELL: If it please Your Honours.

MASON CJ:  The Court is not persuaded that the discretion

of the warden miscarried in this case and, therefore,

there is not sufficient reason to doubt the

correctness of the decision of the Full Court.

Accordingly, the application for special leave to appeal is refused.

MR BLAXELL:  I seek an order for costs, if it please the

Court.

MASON CJ:  Yes. Mr Camp, you cannot oppose an order for

costs, can you?

MR CAMP:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 12.49 PM THE MATTER WAS ADJOURNED SINE DIE

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