JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SIBERIA MINING CORPORATION PTY LTD -v- O'SULLIVAN [2020] WASC 214
CORAM: TOTTLE J
HEARD: 21 JANUARY 2020
DELIVERED : 15 JUNE 2020
FILE NO/S: CIV 2036 of 2019
BETWEEN: SIBERIA MINING CORPORATION PTY LTD
Applicant
AND
JOHN FRANCIS O'SULLIVAN
First Respondent
MICHAEL ALLAN THOMPSON
Second Respondent
Catchwords:
Judicial review - Warden's decision to recommend refusal of an application for exemption from the expenditure conditions of a mining lease - Construction of s 102 of the Mining Act 1978 (WA)
Legislation:
Mining Act 1978 (WA)
Mining Regulations 1981 (WA)
Result:
Decision quashed
Order for rehearing made
Category: B
Representation:
Counsel:
| Applicant | : | T C Russell & L A Shave |
| First Respondent | : | No Appearance |
| Second Respondent | : | C McKenzie |
Solicitors:
| Applicant | : | Gilbert + Tobin |
| First Respondent | : | No Appearance |
| Second Respondent | : | McKenzie & McKenzie |
Case(s) referred to in decision(s):
Carnegie Gold Pty Ltd v Maughan [2018] WASC 366
Commissioner For Equal Opportunity v Adi Limited [2007] WASCA 261
Commonwealth of Australia v State of Western Australia [1999] HCA 5; (1999) 196 CLR 392
Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Ex parte Savage and Savage [1989] WAR 46
FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; [2017] 262 CLR 510
GMK Exploration Pty Ltd (subject to Deed of Company Arrangement) v Morgan [2016] WAMW 14
Haoma Mining NL v Tunza Holdings Pty Ltd [2006] WASCA 19; (2006) 31 WAR 270
Inca Minerals Ltd v Brewer [2016] WAMW 9
Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875
MH Gold Pty Ltd v Phoenix Rise Ltd [2018] WAMW 13
Mohammadi v Bethune [2018] WASCA 98
Newmont Duketon Pty Ltd v Angelopoulos [2006] WAMW 20
Nova Resources NL v French (1995) 12 WAR 50
Pangolin Resources Pty Ltd v The Hon Norman Moore MLC, Minister for Mines and Petroleum [2012] WASC 343
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Minister for Indigenous Affairs; Ex parte Woodley (No 2) [2009] WASC 296
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175
Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343
Re Warden French; Ex parte Serpentine-Jarrahdale Ratepayers and Residents Association (1994) 11 WAR 315
Re Warden Heaney; Ex parte Serpentine-Jarrahdale Ratepayers' and Residents' Association (Inc) (1997) 18 WAR 320
Re Warden Nicholls; Ex parte Plutonic Operations Ltd [2002] WASCA 232; (2002) 27 WAR 56
Roberts v Hugill (unreported, Warden's Court at Mount…
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- Case
- [2020] WASC 214
- Decision Date
CaseChat Overview and Summary
The Court was required to determine the meaning of the expression 'any other reason... which in the opinion of the Minister is sufficient to justify such exemption' as it appears in s 102(3) of the Act. This involved determining whether the reason for exemption must be of a different character to the reasons specified in s 102(2) of the Act, whether the reason must exist at the time the application is made, whether the reason must explain or justify why the expenditure conditions have not been satisfied, and whether the expression 'the work done and the money spent on the mining tenement' extends to work done and money spent between the date of the application for exemption and the date on which the application is considered. The Court also had to determine the construction of s 102(4) of the Act.
The Court held that the expression 'any other reason... which in the opinion of the Minister is sufficient to justify such exemption' in s 102(3) of the Act refers to reasons which are of a different character to the reasons specified in s 102(2) of the Act. The Court held that the reason for exemption must exist at the time the application is made. The Court held that the reason for exemption need not explain or justify why the expenditure conditions have not been satisfied. The Court held that the expression 'the work done and the money spent on the mining tenement' in s 102(4) of the Act extends to work done and money spent between the date of the application for exemption and the date on which the application is considered. The Court held that the Warden's recommendation to refuse the application for exemption was unreasonable because the Warden failed to properly consider the effect of the work done and money spent on the mining tenement between the date of the application for exemption and the date on which the application was considered.
The Court quashed the Warden's recommendation to refuse the application for exemption and remitted the application to the Warden for reconsideration.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The applicant, Siberia, applies for judicial review of a recommendation made by the first respondent, the warden, to the Minister of Mines, Industry Regulation and Safety (the Minister) that an application for exemption from expenditure conditions applicable to mining leases held by Siberia be refused.[1] Siberia seeks orders that the recommendation be quashed and that the warden determine the application in accordance with law.[2] The second respondent, Mr Thompson, lodged an objection to Siberia's exemption application.[1] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19.[2] The warden filed a notice of intention to abide. This case concerns the discretion in s 102(3) of the Mining Act 1978 (WA) (the Act) to grant exemptions from the expenditure conditions applicable to mining tenements and in particular, the construction of the expression 'any other reason ... which in the opinion of the Minister is sufficient to justify such exemption' as it appears in that subsection. The questions to be determined may be expressed as follows:(a)Is the 'reason' required to be of a different character to the reasons specified in s 102(2) of the Act?(b)Is the 'reason' required to exist at the time the application is made or may the Minister grant an exemption on the basis of a reason which has arisen in the period between the date on which the application is made and the date on which it is determined?(c)Is the 'reason' required to explain or justify why the expenditure conditions have not been satisfied or (potentially in the case of a mining lease), will not be satisfied? There is a subsidiary issue concerning the construction of s 102(4), that is, whether the expression 'the work done and the money spent on the mining tenement' extends to work done and money spent between the date of the application for exemption and the date on which the application is considered, or whether it is limited to work done and money spent up to the date of the application. Section 82(1) of the Act provides that every mining lease shall be deemed to be granted subject to the conditions set out in that section. The conditions include that the holder must 'comply with the prescribed expenditure conditions applicable to such land unless partial or total exemption therefrom is granted in such manner as is prescribed': s 82(1)(c). The expression 'expenditure conditions' is defined in s 8(1) of the Act to mean:expenditure conditions in relation to a mining tenement means the prescribed conditions applicable to a mining tenement that require the expenditure of money on or in connection with the mining tenement or the mining operations carried out thereon or proposed to be so carried out. The expenditure for a mining lease is prescribed by reg 31 of the Mining Regulations 1981 (WA) (the Regulations). The Act's primary purpose is to encourage and promote the prospecting and exploration for, and mining of, mineral deposits in the State.[3] Expenditure conditions reflect the policy objective that land with the potential for mining or exploration for minerals should be made available for those purposes. As explained by the Court of Appeal in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum,[4] other objects of the Act include:1.Identifying circumstances in which a tenement holder will be allowed to hold a mining tenement without mining or giving it up for others who may wish to actively mine the land.2.Protecting tenement holders who have defaulted in compliance with the Act in some minor respect, or because of some circumstances beyond the control of the tenement holder, against loss of the tenement.3.Providing that, in general, the holder of a mining tenement should carry out the relevant mining activity on the tenement. (footnotes omitted)[3] Nova Resources NL v French (1995) 12 WAR 50 57 (Rowland J, Kennedy & Pidgeon JJ agreeing); Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175 [70] (Buss JA, Wheeler JA agreeing); Commonwealth of Australia v State of Western Australia [1999] HCA 5; (1999) 196 CLR 392 [172] (Kirby J).[4] Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [96] (Murphy, Mitchell & Beech JJA).