Savage v Blackhill Minerals Limited

Blackhill Minerals Limited applied to the High Court of Australia for special leave to appeal a decision of the Full Court of the Supreme Court of Western Australia. The dispute concerned the exercise of a warden's discretion under the *Mining Act 1978* (WA) in relation to mineral claims. The applicant argued that the Full Court's reasons for decision were likely to lead to error in two respects: first, in relation to the warden's discretion under conversion provisions of the Act, and second, generally, in circumstances where a warden determines a fact to be irrelevant to the exercise of their discretion.

The legal issues before the High Court revolved around the grounds of judicial review sought before the Full Court. The first ground argued that the warden's finding amounted to a determination that the holder of the mineral claims did not possess a purpose recognised by the statute, and in the absence of any other reason for the tenement not to be forfeited, the warden was compelled to order forfeiture. The second ground contended that while the warden had a discretion, it was exercised on the wrong principle by taking an irrelevant consideration into account. The core of the applicant's submission was that a complete breach of labour conditions, coupled with a finding that the tenement holder had abandoned the tenement and that there was no reason for its continued existence, foreclosed the warden's discretion not to forfeit.

The applicant's counsel contended that the warden's finding in this case went beyond merely establishing a breach of labour conditions. It was argued that the finding indicated a complete lack of compliance and, crucially, that the tenement holder had effectively abandoned the tenement, leaving no statutory purpose for its continued existence. This, it was submitted, meant that the warden was not merely exercising a discretion but was bound by the legislative provisions to order forfeiture, as no basis remained for the tenement to continue. The applicant sought to distinguish this from situations where a breach might be serious but some compliance had occurred, or where the discretion was simply exercised on an incorrect basis.