Siberia Mining Corporation Pty Ltd v O'Sullivan

[2020] WASC 214

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 Magnet, Library Vol 12 Folio 5, 26 February 1997)

Siberia Mining Corporation Pty Ltd v Thompson [2014] WAMW 7

Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19

Siberia Mining Corporation Pty Ltd v Wilson [2015] WASC 322

Taylor v Owners of Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531

Tortola Pty Ltd v Saladar Pty Ltd [1985] WAR 195

Wentworth v Woolhara Municipal Council [1982] HCA 41; (1982) 149 CLR 672

TOTTLE J:

Introduction

1. 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.

2. 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?

3. 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.

The legislative framework

1. 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).

2. 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.

3. The expenditure for a mining lease is prescribed by reg 31 of the Mining Regulations 1981 (WA) (the Regulations).

4. 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).

5. Where the expenditure conditions applicable to a mining lease are not complied with, 'any person' may apply to the warden for forfeiture of the lease.[5]  The application must be made within the expenditure year or within eight months thereafter.  The application for forfeiture is to be heard in open court by the warden.  Where the warden finds that the holder has failed to comply with the expenditure requirements, the warden may recommend forfeiture of the lease, or may impose a penalty not exceeding $10,000 as an alternative to forfeiture, or may dismiss the application.  Where a penalty is imposed, the warden may award the whole amount of the penalty or any part thereof to the applicant.[6]  Where a mining lease is forfeited pursuant to these provisions, the applicant for forfeiture has, for a period of 14 days after publication of the notice of forfeiture, a right in priority to any other person to mark out or apply for a mining tenement upon the whole or part of the land the subject of the forfeited lease.[7]

   [5] Mining Act 1978 (WA), s 98.

   [6] Mining Act 1978 (WA), s 98.

   [7] Mining Act 1978 (WA), s 100.

6. Exemption from expenditure conditions is dealt with in s 102 of the Act which provides:

   102.Exemption from expenditure conditions

   (1)Subject to this Act, on an application (an application for exemption) made, as prescribed, by the holder of a mining tenement (other than a retention licence) or his authorised agent prior to the end of the year to which the proposed exemption relates, or within the prescribed period after the end of that year, the holder may be granted a certificate of exemption in the prescribed form totally or partially exempting the mining tenement to which the application relates from the prescribed expenditure conditions relating thereto, in an amount not exceeding the amount required to be expended —

   (a)in respect to any mining tenement other than a mining lease, in any one year; and

   (b)in respect to a mining lease, subject to subsection (7), in a period of 5 years.

   (1a)An application for exemption may relate to more than one mining tenement.

   (2)A certificate of exemption may be granted for any of the following reasons -

   (a)that the title to the mining tenement is in dispute; or

   (b)that time is required to evaluate work done on the mining tenement, to plan future exploration or mining or raise capital therefor; or

   (c)that time is required to purchase and erect plant and machinery; or

   (d)that the ground the subject of the mining tenement is for any sufficient reason unworkable; or

   (e)that the ground the subject of the mining tenement contains a mineral deposit which is uneconomic but which may reasonably be expected to become economic in the future or that at the relevant time economic or marketing problems are such as not to make the mining operations viable; or

   (f)that the ground the subject of the mining tenement contains mineral ore which is required to sustain the future operations of an existing or proposed mining operation; or

   (g)that political, environmental or other difficulties in obtaining requisite approvals prevent mining or restrict it in a manner that is, or subject to conditions that are, for the time being impracticable; or

   (h)that -

   (i)the mining tenement is one of 2 or more mining tenements (combined reporting tenements) the subject of arrangements approved under section 115A(4) for the filing of combined mineral exploration reports; and

   (ii)the aggregate exploration expenditure for the combined reporting tenements would have been such as to satisfy the expenditure requirements for the mining tenement concerned had that aggregate exploration expenditure been apportioned between the combined reporting tenements.

   (2a)In subsection (2)(h) -

   aggregate exploration expenditure means expenditure -

   (a)on, or in connection with, exploration for minerals on the combined reporting tenements; and

   (b)worked out in a manner specified in the regulations.

   (3)Notwithstanding that the reasons given for the application for exemption are not amongst those set out in subsection (2), a certificate of exemption may also be granted for any other reason which may be prescribed or which in the opinion of the Minister is sufficient to justify such exemption.

   (4)When consideration is given to an application for exemption regard shall be had to the current grounds upon which exemptions have been granted and to the work done and the money spent on the mining tenement by the holder thereof.

   (5)An application for exemption -

   (a)where an objection to the application is lodged, shall be heard by the warden; but

   (b)otherwise, shall be forwarded to the Minister for determination by the Minister.

   (6)The warden shall as soon as practicable after the hearing of the application transmit to the Minister for his consideration the notes of evidence and any maps or other documents referred to therein and his report recommending the granting or refusal of the application and setting out his reasons for that recommendation.

   (7)Where the warden finds that the reasons given by the holder of the mining lease are sufficient to justify the granting of a certificate of exemption and so recommends, or if the Minister is satisfied whether or not a recommendation is made by the warden, the Minister may grant a certificate of exemption in an amount not exceeding the amount required to be expended in respect of the mining lease in the period of 5 years from the commencement of the year to which the application relates.

7. The 'prescribed period' for the purposes of s 102(1) is 60 days.[8] Reasons prescribed for the purposes of s 102(3) include the death, bankruptcy, insanity or liquidation of the holder of the tenement.[9]

   [8] Mining Regulations 1981 (WA), reg 54(1a).

   [9] Mining Regulations 1981 (WA), reg 102(2).

8. The Mining Regulations 1981 (WA) (the Regulations)provide that any objection to an application for exemption is to be lodged within 35 days after the date on which the relevant exemption application to which it relates is lodged or within such further period as the Warden considers reasonable.[10]

   [10] Mining Regulations 1981 (WA), reg 146.

9. The effect of an exemption is that the holder of the mining tenement is relieved, to the extent allowed for in the certificate, from the holder's obligations under the prescribed expenditure conditions relating to the mining tenement.[11]

   [11] Mining Act 1978 (WA), s 103. cf Mining Act 1978 (WA), s 82(1)(c).

10. The formal requirements for an application under s 102 are set out in reg 54 of the Mining Regulations which provides:

    (1)An application for a certificate of exemption under section 102 shall be made in the form of Form 18 and lodged with the prescribed fee.

    (1a)For the purposes of section 102(1), the prescribed period in which an application may be made, after the end of the year to which the proposed exemption relates, is 60 days.

    (1b)The mining registrar shall, on the lodging of an application for a certificate of exemption under section 102, post a copy of the application on the notice board at his office.

    (2)An application for a certificate of exemption under section 102A shall be accompanied by the prescribed fee.

    (3)An applicant for a certificate of exemption under section 102 or 102A shall also lodge reasons in the form of a statutory declaration supporting the application for the certificate of exemption within 28 days after the lodgment of the application.

11. In Re Warden Nicholls; Ex parte Plutonic Operations Ltd[12] Wheeler J, (as her Honour then was), with whom Murray & Miller JJ agreed, expressed the view that it is not necessary in filling out the Form 18, for the applicant to set out the material facts and circumstances upon it which it relies in order to justify the request for exemption. Rather, it is sufficient for (what might in other contexts be called) the 'grounds' of the application to be identified broadly, by reference to the statute and the reasons listed in s 102(2) or by reference to some other reason which is either prescribed pursuant to s 102(3) or which the applicant considers the Minister may consider sufficient. Her Honour was of the view that the reasons to be included in the statutory declaration required by reg 54 would comprise a more detailed statement of the matters relied upon as justifying the exemption.

    [12] Re Warden Nicholls; Ex parte Plutonic Operations Ltd [2002] WASCA 232; (2002) 27 WAR 56.

Factual background

1. The following account of the factual background is derived from the warden's reasons and three affidavits affirmed by Siberia's solicitor, Timothy Paul O'Leary on 13 June, 10 July and 6 December 2019 and is not contentious.[13]

   [13] Mr Thompson did not adduce any evidence.

2. Siberia is a wholly owned subsidiary of Ora Banda Mining Ltd, which has changed its name twice since Siberia applied for the exemption.  In 2011 Ora Banda's name was Swan Gold Mining Ltd.  In late 2015 the company changed its name to Eastern Goldfields Ltd and then more recently to Ora Banda Mining Ltd.

3. In 2010 Ora Banda and its subsidiaries held approximately 135 contiguous mining tenements located near Kalgoorlie.  These included the three mining leases held by Siberia (16/262, 16/263, 16/264) with which this application is concerned.  The three mining leases were known individually as Iguana, Lizard and Blue Tongue, and collectively as the 'Lady Ida tenements'.  They had been held by Ora Banda since 2004 when the company name was Monarch Resources Ltd.

4. Ora Banda was placed into voluntary administration between 10 July 2008 and 26 February 2010. Prior to entering voluntary administration Ora Banda's mining operations primarily comprised an open cut gold project at Davyhurst and an underground gold project located at Mt Ida. A processing plant was located at Davyhurst.  The project was originally known as the Carnegie Gold Project but, more recently, has been known as the Davyhurst Gold Project.

5. Siberia's mining leases are located approximately 70km south of the Davyhurst Plant.

6. The minimum amount of expenditure required for the leases in the 2010-2011 year as compared to the actual expenditure reported by Siberia was as follows:

Lease No.	Required Minimum Expenditure	Actual Reported Expenditure
16/262	$99,000	$48,306
16/263	$100,000	$48,643
16/264	$99,100	$63,248

1. On 10 May 2011 Siberia lodged an application for exemption from compliance with expenditure conditions in relation to the Iguana, Lizard and Blue Tongue mining leases for the year commencing 12 March 2010 and ending on 11 March 2011 (the Expenditure Year).[14]  The application identified six reasons for granting an exemption.  For the purposes of this judicial review application only two are relevant.  They were expressed as follows:

   Section 102(2)(b) - Time has been required to evaluate work done on the Leases, to plan future exploration/mining and raise capital therefor; and

   Section 102(3) - Any other reason which may be prescribed or which in the opinion of the Minister is sufficient to justify such exemption, including matters dealing with the company placing itself into voluntary administration after an unsuccessful debt restricting [sic] program, ongoing discussions with potential investors/buyers and the recent cessation of some of those discussions.

   [14] Affidavit of Timothy Paul O'Leary affirmed 10 July 2019, par 5.

2. The copy of the application for exemption in evidence contained a section marked 'OFFICE USE', and within that section there was an endorsement 'No Stat Dec Lodged' from which I infer that the application was not supported by a statutory declaration as required by reg 54 of the Regulations. This inference is reinforced by the fact that no copy of a statutory declaration was included in the evidence placed before this court and a copy does not appear to have been before the warden.

1. On 27 May 2011 Mr Thompson lodged an objection to the application.[15]

   [15] Affidavit of Timothy Paul O'Leary affirmed 10 July 2019, par 7.

2. In August 2012 the applications for exemption were heard by Warden Wilson.  On 31 January 2014 Warden Wilson recommended that the applications for exemption be refused.[16] In the reasons for his recommendation Warden Wilson referred to and reproduced particulars of the s 102(3) ground relied upon by Siberia. As set out in the reasons those particulars were as follows:[17]

   (a)The exhaustive efforts of the Board of Swan Gold to obtain funding prior to, and during the 2011 year;

   (b)The economic conditions which prevailed during the 2011 Year and the resultant low investor confidence, including by reason of the Global Financial Crisis (GFC) and the proposed introductions of the Federal Government’s ‘Mining Tax’;

   (c)The significant past developments and expenditure on the Project, including the Leases; and

   (d)The impending injection of funds by Investment and significant planned development and expenditure on the Carnegie Project, including the leases.

   [16] Siberia Mining Corporation Pty Ltd v Thompson [2014] WAMW 7.

   [17] Siberia Mining Corporation Pty Ltd v Thompson [2014] WAMW 7 [12].

3. In Mr Thompson's submissions he referred to particulars of Siberia's application filed on 30 August 2011, seemingly those particulars differed from the particulars reproduced by Warden Wilson.  Unfortunately, although referred to in submissions, no other particulars were in evidence on this application.

4. Siberia sought judicial review of the warden's recommendation.  On 1 September 2015, Allanson J allowed the application for judicial review, quashed the decision of the warden and directed that the matter be reheard according to law.[18]

   [18] Siberia Mining Corporation Pty Ltd v Wilson [2015] WASC 322.

5. Siberia's application was heard for a second time by Warden O'Sullivan. Relevantly:

   (a)The hearing took place between 28 and 30 November 2017.

   (b)Siberia filed nine affidavits which were read at the hearing, witnesses were examined and cross-examined.[19] 

   [19] Affidavit of Matthew Dean Bampton affirmed 29 September 2016; Affidavit of Keith John Vuleta sworn 23 September 2016; Affidavit of Jacquiline Nhung-Hong Ly sworn 3 October 2016; Affidavit of Andrew Edward Czerw sworn 10 October 2016; Affidavit of Michael George Fotios sworn 10 October 2016; Affidavit of Bryan Kevin Hughes sworn 15 December 2016; Second Affidavit of Andrew Edward Czerw sworn 22 December 2016; Second Affidavit of Michael George Fotios sworn 24 November 2017; Second Affidavit of Jacquiline Nhung-Hong Ly sworn 24 November 2017.

   (c)At the conclusion of the hearing directions were made for the filing and service of written closing submissions.

   (d)On 29 January 2018 Mr Thompson filed and served written closing submissions.

   (e)On 8 March 2018 (before filing its written closing submissions) Siberia filed an interlocutory application seeking the following orders:

   1.[Siberia] have leave to file an affidavit of Michael George Fotios sworn on 1 March 2018.

   2.The time for [Siberia] to file written submissions in response to [Mr Thompson's] written closing submissions dated 29 January 2018 be extended to the date 7 days after the determination of this application.

   3.[Mr Thompson] pay [Siberia's] costs of the application.

   (f)On 27 April 2018, Siberia filed submissions in support of the interlocutory application.

   (g)On 10 May 2018, Mr Thompson filed submissions in opposition to the interlocutory application.

   (h)On 27 August 2018, Siberia filed an affidavit of Michael George Fotios sworn on 27 August 2018 and by letter of the same date Siberia requested that the interlocutory application dated 8 March 2018 be amended to permit Siberia to rely on Mr Fotios's further affidavit.

   (i)On 11 October 2018, Siberia made a further interlocutory application for leave to file an affidavit of Andrew Edward Czerw sworn 11 October 2018.

   (j)On 12 October 2018, Siberia filed its written closing submissions in support of its application for exemption.

   (k)On 2 November 2018, Mr Thompson filed submissions in opposition to the further interlocutory application.

6. Before the warden, Siberia advanced two reasons why a certificate of exemption should be recommended. These reformulated and expanded the s 102(2)(b) and s 102(3) reasons identified by Siberia in its exemption application filed on 10 May 2011. First, Siberia contended that exploration planning conducted during the Expenditure Year and 'significant efforts' to obtain funding during the Expenditure Year constituted a reason for the purpose of s 102(2)(b) of the Act. Secondly, Siberia contended that the following five circumstances constituted a reason or reasons for the purposes of s 102(3) sufficient to justify the granting of an exemption:

   (a)the difficult circumstances of the company during the Expenditure Year (it having emerged from administration on 26 February 2010);

   (b)the expenditure and exploration on the mining leases since the end of the Expenditure Year;

   (c)the mineralisation on the mining leases and the company's plan to recommence mining at the Davyhurst Gold Project;

   (d)the realisation of the company's plan following the Expenditure Year; and

   (e)the planned development of the mining leases as part of the Davyhurst Gold Project.

The warden's reasons

1. The grounds of the application and the parties' submissions require detailed reference to the warden's reasons.

The warden's factual findings

1. After referring to the basis upon which Siberia sought an exemption, the warden outlined the legislative framework, referred to the objects of the Act and to the principles applicable to statutory construction.  Next the warden recited those parts of the evidence that he appeared to accept.  It is implicit in the warden's reasons that he made findings of fact in accordance with the evidence so recited.  The findings relevant to this application may be summarised as follows:

   (a)In February 2010 Stirling Resources Ltd invested $15 million in Swan Gold and it came out of administration.  Three creditors' trusts were created and the trustee of those trusts held security over Swan Gold's assets.

   (b)Most of the $15 million invested in Swan Gold was applied in the payment of debts and in February 2010 Swan Gold had approximately $1.2 million for working capital and needed to raise further capital in order to recommence mining operations.

   (c)Disputes arose between Swan Gold's shareholders and attempts to raise further capital were frustrated.

   (d)In October 2010 the trustee of the creditors' trusts determined that Swan Gold's assets should be put on the market and shortly thereafter requested that they be placed in 'care and maintenance' whilst options were considered.

   (e)By December 2010 Swan Gold's available cash was $230,000.

   (f)In January 2011 Swan Gold announced that it had undertaken a public marketing of the assets over which the trustee of the creditors' trusts held security.

   (g)In 2012 Investmet Ltd acquired an interest in Swan Gold with a view to re-capitalising it.

   (h)As explained by Mr Andrew Czerw, the General Manager of Project Development, of Eastern Goldfields Ltd (whose evidence I take the warden to have accepted) the history of Swan Gold's dealings with the tenements that made up the Davyhurst Gold Project was follows:[20]

   In 2006, … the project was on sold to Monarch Resources [who then became Swan Gold].  What Monarch Resources did was they went on the acquisition trail.  So they acquired all the - the Riverina tenements off Barrow Resources, the Mount Ida Tenements off Mount Ida Gold and the Siberia and Lady Ida Tenements off the Siberia Mining Corporation and they folded those little microcap companies under the one umbrella.  So they did an excellent job of consolidating this very large tenure.  So it grew from a very small number of tenements surrounding the processing plant to, basically, the landholding we have today.  So it - what that has done is allows a lot of optionality in relation to the future of that processing plant.  What they did not allow themselves to do was allow themselves sufficient time to leverage of that consolidation.  So they basically rushed it into production and probably did not pick the right deposits out to develop first and, as a result of that, they came unstuck …

   When the consolidation happened, what happened was all those individual companies had individual drilling databases and they were basically all thrown together in the one database.  Were still trying to validate the database as we speak today, because it is such a massive undertaking that we - we can only do it - in a logical way, we can only do it a piece at a time.  So we will still prioritise the - that a re-evaluation of the - or the – validation of the database.

   (i)The Lady Ida tenements covered an area on which there was a desire to do further drilling and further deep drilling because not much had been done historically.

   (j)As explained by Mr Matthew Bampton, Swan Gold's technical manager responsible for planning and managing the geological activities of Swan Gold (whose evidence I take the warden to have accepted) between August 2009 and October 2010 when Swan Gold came out of administration a plan was formulated for start-up drilling of three pits known as Missouri, Sand King and Riverina.  The Lady Ida tenements were not part of this 'start up scenario'.  There were obstacles to the development of the Lizard and Iguana tenements because a miscellaneous licence was required to connect the tenements to a haulage road and certain environmental approvals were no longer in force.  Iguana was a low-grade deposit and required a significant amount of drilling to prove up the resource estimate - it was not an immediate target but was viewed as a medium term target.  A major problem with the development of the Lady Ida tenements was their location - they were not located near the main road to Davyhurst and this presented a haulage issue that was unresolved as at October 2010.  As at that date more work had to be done in relation to Iguana and Lizard before any determination could be made about the viability of mining the resources.  Further the Blue Tongue deposit was a far lower priority than Iguana and Lizard - it was significantly smaller.  In 2010 Swan Gold's strategy was to restart mining on the project that had existing legal approval and in the short term that did not include Iguana and Lizard.  Mr Bampton did not know whether Siberia was able to mine Iguana in 2010 and a similar situation prevailed in relation to the Lizard deposit. 

Siberia not entitled to exemption under s 102(2)(b)

[20] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [39].

1. The warden considered Siberia's reliance on s 102(2)(b)[21] and concluded that it was not entitled to an exemption on that basis. Although there is no challenge to this element of the warden's recommendation the warden's reasons provide some context for his approach to Siberia's reliance on s 102(3). The warden found the evidence established that whilst some capital raising was undertaken during the Expenditure Year it was not for the purpose of developing the Lady Ida tenements, it was to facilitate the development of the start-up pits located on other tenements. The warden then went on to deal with whether there was a plan for future exploration or mining on the Lady Ida tenements. His Honour observed:[22]

   Apart from the vague statement that the Lady Ida tenements may provide feed for the Davyhurst Mill, the evidence was incapable of establishing that there was a plan for future exploration or mining.  At best the evidence established that insufficient work had been done to ascertain the viability of the Lady Ida tenements.  There were additional problems in terms of environmental licenses, haulage and the need for a miscellaneous license that remained unresolved.

   In my view, there was insufficient evidence to support the conclusion that a plan existed for the future mining or exploration of the Lady Ida tenements, let alone the time was utilised during the Expenditure Year to develop one.  This is consistent with the fact that the Lady Ida tenements were not a priority during the expenditure year.

   As Warden Wilson observed in Berkeley Resources Ltd v Limelight Industries Pty Ltd:

   To plan is the method or course of action to do something.

   In my view, an intention to carry out exploration or mining of an unspecified nature at some time in the future does not constitute a plan for the purpose of s 102(2)(b). Nor would time be required during the expenditure year to develop a plan involving that level of generality.

The warden's construction of s 102(3)

[21] 'time is required to evaluate work done on the mining tenement, to plan future exploration or mining or raise capital therefor'.

[22] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [62] - [65].

1. The warden then turned his attention to Siberia's reliance on s 102(3). The warden recited the five circumstances said by Siberia to constitute a sufficient reason to justify the grant of an exemption to which I have referred earlier.

2. The warden observed that s 102(3) is broadly expressed and that apart from the words 'other reason' contains no words of limitation. The warden commented that the absence of words of limitation did not mean that the power was otherwise unfettered. His Honour observed that the nature and extent of power must be inferred from the Act read as a whole and, whether the circumstances relied on by the applicant constituted a sufficient reason for an exemption, is to be determined having regard to the Act's subject matter, scope and purpose. His Honour went on to explain:[23]

   Section 102(3) provides for an exemption if some 'other' sufficient reason is established. This calls for the identification of some reason other than those enumerated in s 102(2) and not merely a re-agitation of one or other of the grounds in s 102(2).[24]

   In MH Gold v Phoenix,[25] whilst acknowledging that each case will depend on its own facts, I made a number of observations about the operation of s 102(3). I adopt those observations without repeating them. (emphasis in original)

   [23] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [72] - [73].

   [24] MH Gold Pty Ltd v Phoenix Rise Ltd [2018] WAMW 13 [272] - [275].

   [25] MH Gold v Phoenix Rise [267] - [276].

3. The observations in MH Gold v Phoenix Rise to which the warden referred were as follows:[26]

   In my view, s 102(3) directs attention to the identification of a sufficient reason that is a different character to those in s 102(2). It follows that a tenements holder should not receive an exemption under s 102(3) simply because it failed to establish one of the grounds in s 102(2). Not only does the language used in s 102(3), in particular the word 'other', support such a construction but it would undermine the purpose of s 102(2), if s 102(3) was used to subvert or relax the requirements posed by grounds in s 102(2).

   While the circumstances to which s 102(3) extends is unlimited in each case will depend on its own facts, I doubt it was intended to be used to agitate what is in reality a ground to which s 102(2) relates that the tenements holder accepts it could not establish or failed to establish having attempt to do so.

   In short, whether the legislature has by s 102(2) stipulated the circumstances capable of giving rise to an exemption, the criteria or limitations that apply to each subparagraph of s 102(2) should not be ignored.

   For example, where a tenement holder is not eligible for an exemption under s 102(2)(h) because expenditure across the combined reporting group in connection with exploration fails to meet the minimum requirement, it is doubtful an exemption under s 102(3) should be granted on the basis that expenditure of mining activities across the group exceed the minimum requirement. The legislature having expressly turned its mind to the circumstances in which expenditure across a group of tenements can be aggregated, it is unlikely it intended that the general power in s 102(3) could be used in a way that is inconsistent with that objective. (emphasis in original)

The warden's assessment of the s 102(3) reasons relied upon by Siberia

[26] MH Gold v Phoenix Rise [272] - [275].

1. The warden expressed his view that none of the grounds relied upon either individually or collectively supported the granting of an exemption for the tenements.[27]  The warden set out his assessment of each ground.

   [27] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [74].

2. '[T]he difficult circumstances of the company during the Expenditure Year, it having just emerged from administration':[28] the warden observed that administration unlike liquidation was not itself a ground of exemption.  The warden noted, however, that the applicant did not rely on Swan Gold being under administration in the Expenditure Year but that having just emerged from administration it was confronted by difficult circumstances during the Expenditure Year.  The warden considered the circumstances relied upon were essentially the fact that a substantial proportion of funds raised by the re-capitalisation of the company (Ora Banda) in February 2010 were required to pay down debts and therefore there was a need to raise further capital and that ultimately Swan Gold found it difficult to raise capital.  The critical paragraphs in his Honour's reasoning in relation to this ground were as follows:[29]

   In my view, this ground is, in reality, a re-agitation of that advanced in relation to s 102(2)(b) albeit expressed with a greater degree of generality.

   A tenement holder needing to raise capital is exactly what s 102(2)(b) is directed to. As discussed earlier, to fall within s 102(2)(b) certain conditions must be met. Any capital raising undertaken by Swan Gold was not for the purposes of implementing a plan for the Lady Ida tenements that was developed during Expenditure Year. It was to develop the three start-up pits; Missouri, Sand King and Riverina.

   [28] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [75] - [82].

   [29] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [78] - [79].

3. The warden also observed that the fact that a tenement holder was entertaining the prospect of selling its tenements is not a valid reason not to perform its expenditure obligations.

4. '[T]he expenditure and exploration on the mining leases since the end of the Expenditure Year' and 'the realisation of the company's plan following the Expenditure Year':[30] the warden observed that both these grounds relied on events after the expiry of the Expenditure Year and neither ground explained why the minimum expenditure commitment for the tenements had not been met during the Expenditure Year.  His Honour characterised the reasons relevant to the questions of forfeiture in the event that the Minister did not grant the applicant exemptions,[31] subject to an exception that his Honour described as follows:[32]

   An exception of course is where the development of tenements for which an exemption is sought subsequent to the expenditure years lends credibility to the assertion that time was required during the Expenditure Year to plan for future exploration or mining or raise capital therefore. 

   [30] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [83] - [88].

   [31] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [84].

   [32] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [85].

5. The warden observed, however, that limited development of the Lady Ida tenements had taken place in the year following the Expenditure Year and, furthermore, that as at the end of 2016 little had changed.[33]  His Honour commented that even if considerable work had been undertaken on the tenements by the end of 2016 it was so remote from the Expenditure Year to be of little probative value - he observed that the fact that tenements, the subject of an exemption application, are developed at some distant future date did little to demonstrate that a reason for exemption was established during the Expenditure Year.[34]

   [33] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [86] - [87].

   [34] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [88].

1. '[T]he mineralisation on the mining leases and the company's plan to recommence mining at the Davyhurst Gold Project' and 'the planned development of the mining leases as part of the Davyhurst Gold Project':  the warden characterised these grounds as an argument that embraced the following propositions:

   (a) The tenements were part of the project and as long as capital was being raised to advance the project then an exemption under s 102(3) ought to be granted.

   (b)It matters not that there was no immediate plan to develop the tenements so long as they remained part of the project and would be developed in accordance with priority accorded to those tenements within the project. 

   (c) Acquiring and holding multiple tenements on the basis that they will be developed in a staged approach was consistent with the objects of the Act. 

   (d) Whilst a staged approach to development is unfolding the tenements holder is entitled to an exemption under s 102(3) or s 102(2)(b) as long as capital raising for the project or some of the tenements in the project takes place during the expenditure year.

   (e)An exemption may be sought on the basis that capital raising is occurring to develop one or some of the tenements within the project with a view to those tenements becoming operational and the proceeds then being used to fund the development the other tenements in the project including those for which an exemption is sought.

2. The warden identified three difficulties with Siberia's argument, which he termed the 'project' argument: 

   (a)The warden considered that for various reasons the 'project' argument did not promote the objects of the Act,[35] in particular the primary object that prospective land should be available for mining or exploration. His Honour observed it was inconsistent with the policy of the Act for a tenement to be warehoused whilst the holder used its funds to explore other tenements and the Act did not support security of tenure 'at all costs'. His Honour considered that the argument advanced by Siberia undermined the operation of s 102(2)(b) which required tenement holders to be raising capital or attempting to do so to fund activities on the tenements for which an exemption is sought and that the fundraising or attempted fundraising should occur in the year to which the application for exemption related. Having referred to those matters His Honour stated:[36]

   Having regard to the history of Swan Gold's acquisition of these tenements provided by Mr Czerw, this is exactly what has occurred in this case.  Monarch (as Swan Gold then was) took on more tenements than it could handle and has struggled to develop them since.  It has also had difficulty planning for future exploration or mining because it had not examined all of the data it received.

   (b) His Honour commented that there were various options available to Swan Gold that may have enabled it to secure exemptions for the Lady Ida tenements and referred to the possibility of applications being made under s 102(2)(f), s 102(2)(e) and s 102(2)(b). By reference to his earlier findings of fact his Honour explained why applications for exemptions under each of those paragraphs of s 102(2) would not have been successful.[37]

   (c) His Honour then analysed Siberia's application for exemption under s 102(3) by reference to the criteria specified in s 102(2)(h) and held, in effect, that Siberia's application did not satisfy the requirements of s 102(2)(h).

The warden's assessment of the relevance of s 102(4)

[35] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [94] - [102].

[36] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [102].

[37] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [104] - [107].

1. Finally, the warden referred to s 102(4) of the Act and to a contention advanced by Mr Thompson that repeated applications for exemption had been made in relation to the Lady Ida tenements for the expenditure years ending 11 March 2007, 2009 and 2010 and that an exemption had been sought for the Iguana and Lizard tenements for the 2008 expenditure year. His Honour observed, 'there is no basis to believe that any of the matter [sic] referred to in s 102(4) would assist the applicant.'[38]

Siberia's application to adduce further evidence

[38] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [117].

1. The warden then dealt with an application to adduce the further affidavit evidence from Mr Fotios and Mr Czerw which was the subject of the interlocutory applications made after the hearing.[39]  His Honour observed that both Mr Fotios and Mr Czerw gave evidence at the hearing and that it was not in dispute that they had only become involved with Swan Gold and Siberia after the Expenditure Year. 

   [39] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [118] - [130].

2. The warden noted that at the commencement of the hearing Mr Thompson had objected to significant portions of the evidence Siberia wished to adduce on the basis that it related to events and activities that post-dated the Expenditure Year and, 'did not explain why the applicant had not met the minimum commitment for each of the Lady Ida tenements for the Expenditure Year'.[40]  The warden recorded that he had admitted the evidence (at the hearing) over Mr Thompson's objection on the basis that he would consider its relevance when he had the benefit of hearing all of the evidence.  His Honour then observed that he had difficulty seeing how events after the Expenditure Year explained why the, 'Lady Ida tenements were under expended during the Expenditure Year' and that much if not all of the evidence that was the subject of objection taken at the hearing was not relevant.[41]

   [40] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [121].

   [41] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [123].

3. The warden then considered the fresh evidence which was the subject of the application made after the conclusion of the hearing.  His Honour said that for the most part the fresh evidence did no more than set out what had taken place since the hearing was completed whether it be by way of an updated previous matters raised during the hearing or new developments.  His Honour observed the fresh evidence did not explain why the tenements were 'under-expended' and he observed that the evidence was 'very remote from the Expenditure Year', it was not relevant, and it should not be admitted into evidence.  His Honour concluded his reasoning in relation to the application to adduce fresh evidence with these paragraphs:

   I am also of the view that there is no real possibility that the further evidence would produce a different result were it admitted.  The public interest in the finality of litigation and the further delay that would likely result were it admitted militate against its admission.

   Ultimately, I am not satisfied that it is in the interests of justice to admit the fresh evidence.  The public interest in the finality of litigation and the further delay that would likely result were it admitted militate against its admission.  (citations omitted)

The judicial review grounds

1. The grounds relied upon by Siberia are as follows:

   1.The Warden erred in law by misapplying the legal test for exemption under s 102(3) of the Mining Act 1978 (WA) (Mining Act) in three respects:

   (a)the Warden erroneously considered that grounds for exemption advanced under s 102(3) cannot encompass arguments that relate to matters the subject of ss 102(2)(a) - (h), but in respect of which exemption was not sought under ss 102(2)(a) - (h);

   (b)the Warden failed, when considering whether to recommend the grant or refusal of an exemption under s 102(3) of the Mining Act, to take into account grounds for exemption that had been advanced under both ss 102(2)(b) and 102(3), but that the Warden considered were insufficient to ground an exemption under s 102(2)(b); and

   (c)the Warden erroneously found that evidence of matters that occurred after the end of the twelve month period beginning on 12 March 2010 and ending on 11 March 2011 (Expenditure Year) was not relevant to the Applicant's claim for exemption from expenditure under s 102(3) of the Mining Act because those matters did not explain why the minimum expenditure commitment for the Mining Leases was not met during the Expenditure Year.

   2.As a consequence of the errors in 1(a), 1(b) and 1(c) above, the Warden failed to consider relevant materials, including the affidavits of Michael George Fotios dated 1 March 2018 and 27 August 2018 and the affidavit of Andrew Edward Czerw dated 11 October 2018.

Availability of judicial review

1. The function of an order in the nature of certiorari is to remove the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights.[42]

   [42] Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1 [28]; Carnegie Gold Pty Ltd v Maughan [2018] WASC 366 [50].

2. There was no dispute in the current case that the decision of the warden to recommend the refusal of a grant of an exemption was an exercise of power which had a discernible or apparent legal effect on Siberia's rights, making it amenable to an order in the nature of certiorari.[43]  Further, it was not in dispute that the remedy sought by Siberia was available for jurisdictional error or error of law on the face of the record.

   [43] See also Siberia Mining Corporation Pty Ltd v Wilson [2015] WASC 322 [20].

Ground 1

Overview of the parties' submissions

Siberia's submissions

Ground 1(a) and (b)

1. Siberia's overarching submission was that the warden adopted a construction that fettered the exercise of the discretion under s 102(3) in a way which is not supported by the legislative text and is inconsistent with the objects of the Act. The construction resulted in a failure by the warden to consider under s 102(3) matters that might, wholly or in part, have fallen within s 102(2) of the Act. Siberia contended the erroneous construction of s 102(3) led to the warden asking himself the wrong question in a manner similar to the way the Minister was held to have asked himself the wrong question in Pangolin Resources Pty Ltd v The Hon Norman Moore MLC, Minister for Mines and Petroleum.[44] In the present case, Siberia argued, the warden similarly failed to consider the central question of whether, notwithstanding that the elements of s 102(2)(b) may not have been satisfied, there had, nevertheless been sufficient compliance with the underlying policy of the Act to warrant an exemption under s 102(3).

Ground 1(c)

[44] Pangolin Resources Pty Ltd v The Hon Norman Moore MLC, Minister for Mines and Petroleum [2012] WASC 343 [15] (EM Heenan J).

1. Siberia submitted that the warden erred by considering that events which took place after the Expenditure Year were not relevant because they did not explain why the minimum expenditure commitment for the mining leases was not met during the Expenditure Year. Two propositions were central to Siberia's submission, first, that as a matter of construction s 102(3) did not contain a temporal restriction of the nature implicit in the warden's approach to the relevance of evidence and, second, neither s 102(2) nor s 102(3) required a tenement holder to explain a failure to meet the minimum expenditure conditions. In support of these propositions Siberia contended:

   (a)There was no textual warrant for a temporal restriction of the nature applied by the warden.

   (b)Section 102(3) is to be contrasted with s 102(2). Section 102(2) expressly contemplates that the various states of affairs constituting the reasons specified in the subsection exist at the date of the application while s 102(3) does not.

   (c)Section 102(4) requires the Minister to have regard to the work done and money spent on the tenement by the holder without any qualification on when the work was done and the money spent - Siberia contended this supported construing s 102(3) as not being subject to a temporal restriction.

   (d)Section 102(3) directs attention to the necessity of establishing a reason for exemption at the time the Minister is required to form an opinion and it would ignore the commercial realities of the mining industry to disregard events that occurred after the end of the Expenditure Year.

   (e)There are authorities in which events subsequent to the expenditure year have been considered.  In this respect Siberia relied on the decision of Allanson J in Siberia Mining Corporation Pty Ltd v Wilson,[45] and the decisions of the wardens in GMK Exploration Pty Ltd (subject to Deed of Company Arrangement) v Morgan,[46] and Inca Minerals Ltd v Brewer.[47]

   (f)The warden erred in considering that events subsequent to the Expenditure Year were relevant to forfeiture of the tenements but not to the exemption application. The warden was in error, because, in effect, the statutory provisions in relation to forfeiture were not relevant to the construction of s 102 and the existence of forfeiture applications was an irrelevant consideration in the context of the exemption application.

   (g)A requirement to explain a failure to meet expenditure conditions is not to be implied into s 102(2) or s 102(3). This proposition was supported by:

   (i)s 102(7) which confers a power to grant an exemption from expenditure conditions for a period of five years from the commencement of the year in which the application relates;

   (ii)the decision of Archer J in Carnegie Gold Pty Ltd v Maughan, in which her Honour held that the fact that a tenement holder may have satisfied the expenditure conditions did not disentitle the tenement holder from applying for and being granted an exemption from the expenditure requirements.[48]

Mr Thompson's submissions

Grounds 1(a) and (b)

[45] Siberia Mining Corporation Pty Ltd v Wilson [2015] WASC 322.

[46] GMK Exploration Pty Ltd (subject to Deed of Company Arrangement) v Morgan [2016] WAMW 14.

[47] Inca Minerals Ltd v Brewer [2016] WAMW 9.

[48] Carnegie Gold v Maughan [74], [93] - [94].

1. The starting point of Mr Thompson's submissions was the text of s 102(3). He contended the words 'Notwithstanding that the reasons given for the application for exemption are not amongst those set out in subsection (2), a certificate of exemption may also be granted for any other reason' indicates that s 102(3) requires the consideration of reasons other than those raised for the purpose of s 102(2). That is to say, if an applicant is unsuccessful in persuading the Minister to make a favourable decision under s 102(2) then those matters cannot form the basis for a favourable decision under s 102(3) because s 102(3) refers to the identification of a sufficient reason that is of a 'different character' from the reasons set out in s 102(2). Mr Thompson argued a contrary construction would give no effect to the word ‘other’ in s 102(3).

2. Mr Thompson contended that the construction adopted by the warden was not only supported by the text of s 102(3) but it advanced the primary statutory purpose of the Act of ensuring that land prospective for minerals was open for mining and exploration.

3. Mr Thompson supports the construction adopted by the warden, contending that if Siberia's construction of s 102(3) is accepted then s 102(2) has no work to do. If all reasons specified in s 102(2) can be considered for the purposes of an application for exemption that relies on s 102(3), then s 102(2) is redundant. It was said that Siberia's construction is contrary to the principle that 'a Court construing a statutory provision must strive to give meaning to every word of the provision'.[49]

   [49] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [71]; Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405, 414, 419.

4. In the course of oral submissions Mr Thompson's counsel developed two further contentions: 

   (a)The first was that the warden did not make the error of which Siberia complains because, for the purposes of considering Siberia's application under s 102(3), the warden did, in fact, take into account and assess each of the matters relied upon by Siberia. In other words the warden undertook the exercise Siberia says should have been undertaken even if the warden held an erroneous view of the construction of s 102(3).

   (b)The second contention was that the warden did not construe s 102(3) as preventing reliance on any of the reasons specified in s 102(2) but, in effect, held that if a tenement holder wished to rely on a reason specified in s 102(2) for the purpose of an application that relies on s 102(3), then the reason had to be established in accordance with criteria set out in s 102(2).

Ground 1(c)

1. Mr Thompson's submissions were as follows:

   (a)Section 102 is subject to a temporal limitation which is inherent in the requirement that the application for an exemption be made prior to the end of the expenditure year to which the application relates or within the prescribed period after the end of the year: s 102(1).

   (b)Section 102(2) requires that the specified reasons exist or occur during the expenditure year and s 102(3) should be subject to a similar requirement because otherwise there would be a complete breakdown in the policy of the Act and the forfeiture process. If tenement holders were able to raise events that occur after the expiry of the relevant year of expenditure this would be a disincentive for parties to object to applications for exemption or to make forfeiture applications.

   (c)The essential question posed by s 102(3) is whether there is some reason why a tenement holder did not meet the expenditure commitments during the expenditure year. Whilst the authorities have accepted that evidence of events occurring after the expenditure year may be relevant, this was because the evidence bears on the reason advanced for the exemption and explains why the minimum expenditure commitment has not been met.

Construction of s 102 of the Act

General principles

1. The general principles of statutory construction were summarised by the Court of Appeal in Mohammadi v Bethune,[50] it is unnecessary to recite those principles.  Importantly, the statutory text is construed by reference to its context and purpose.  The text may present a range of potential rational meanings, some of which may be less immediately obvious or more awkward than others.[51]  In such cases, the High Court has noted, that the choice 'turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.'[52]

Statutory objects and contextual matters

[50] Mohammadi v Bethune [2018] WASCA 98 [31] - [36] (Martin CJ, Mazza and Beech JJA).

[51] Taylor v Owners of Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531 [66].

[52] Taylor v Owners of Strata Plan 11564 [66].

1. As noted earlier, the Act's primary purpose is to encourage the exploitation of the State's mineral wealth and a related purpose is to protect tenement holders who have defaulted in compliance with the Act in some minor respect or because of circumstances beyond the control of the tenement holder.  Pullin JA observed in Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd:[53]

   … Another object reflected in the Act is, in one sense, contrary to the primary object. This object is found in provisions in the Act which excuse tenement holders in certain circumstances from making land with known potential for mining, or which is worthy of exploration, available for mining or exploration. Some of these provisions have been in the Mining Act 1978 or its predecessor for a long time, and other provisions have been added more recently, perhaps to reflect the fact that the mining industry in Western Australia has increasingly matured and now involves the investment of billions of dollars.

   …

   Title to a mining tenement is not as secure as title to real property.  This relative lack of security sits uneasily with the fact that very large amounts of capital may be expended on mining infrastructure.  Miners desire as much security of title as possible if they are to make such investment.  The State also has an interest in ensuring reasonable security of title so that investment will be encouraged.  If this happens, the chance that greater royalties may be earned for the benefit of the State is enhanced.  Parliament has demonstrated that it intends that the relative insecurity of title should be balanced out by provisions in the Act which reduce the risk that a tenement may be lost due to error or inadvertence.  

   [53] Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175 [21], [24].

1. The nature of the statutory regime is also relevant to the construction of the Act. In Forrest & Forrest Pty Ltd v Wilson,[54] the High Court considered whether non-compliance with the Act in relation to matters preliminary to the grant of a mining lease would render the grant invalid.  In holding that non-compliance did result in invalidity, the majority (Kiefel CJ, Bell, Gageler and Keane JJ) referred to the principle of statutory construction to the effect that 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 provisions to the contrary, be understood as mandating compliance with the requirements of the regime as essential to the making of a valid grant.  Their Honours explained:[55]

   This 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)

   [54] Forrest & Forrest Pty Ltd v Wilson[2017] HCA 30; [2017] 262 CLR 510.

   [55] Forrest & Forrest Pty Ltd v Wilson[65].

2. This case is not concerned with the requirement for compliance with matters preliminary to the grant of a mining lease and the observations cited above are not directly applicable. It is, however, relevant to the construction of s 102(3) that it forms part of a regime for the grant and retention of exclusive rights to exploit the State's mineral wealth, and the observations of the majority in Forrest & Forrest v Wilson provide context for the interpretation of the discretion conferred on the Minister.

3. Section 102(1) enables the holder of a tenement to apply for the grant of a certificate of exemption 'totally or partially exempting the mining tenement to which the application relates from the prescribed expenditure conditions relating thereto'. The public interest is served by ensuring that tenement holders exploit tenements held by them, however, s 102 recognises that circumstances will arise where a tenement holder ought to be relieved from their expenditure obligations. This is part of the statutory context in which s 102 must be construed. A tenement holder who applies for a certificate of exemption is applying for dispensation from compliance with a statutory requirement imposed to fulfil the public interest. An application for exemption, therefore, inevitably directs attention to why the expenditure conditions have not been, or will not be, satisfied.

4. It is to be noted that a certificate of exemption relieves the tenement holder of the obligation to comply with the expenditure conditions rather than from the consequences of non-compliance.[56]

   [56] Mining Act 1978 (WA), s 103.

5. Section 102(2) specifies reasons that may justify the grant of a certificate of exemption. As Archer J observed in Carnegie Gold Pty Ltd v Maughan, with the exception of s 102(2)(h), the reasons specified in s 102(2) do not focus expressly on 'under expenditure' - the reasons do not require a tenement holder to explain non-compliance. [57] That said, it must be noted that each reason specified in s 102(2) describes factual circumstances which, in effect, may provide an explanation as to why the tenement holder has failed to meet the applicable expenditure conditions. Put another way, each reason specified in s 102(2) by its very nature constitutes a reason - an explanation or justification - both as to why a certificate of exemption may be granted and a reason or explanation as to why the expenditure conditions have not been or will not be satisfied.

   [57] Carnegie Gold Pty Ltd v Maughan [74].

6. Each s 102(2) reason is constituted by a state of affairs that exists at the time the application for exemption is made or, in respect of an application made prospectively, is anticipated (at the time the application is made) will exist in future expenditure years.

No requirement for an 'other reason' to be of a different character to the s 102(2) reasons

1. There is no textual warrant for a construction of s 102(3) that requires an 'other reason' to be of a different character to the reasons specified in s 102(2). No express limitation is imposed on the reasons that may be sufficient for the grant of an exemption under s 102(3) other than that 'the reasons are not amongst those set out in subsection (2)'. It follows that a reason, which does not satisfy the criteria of one or more of the reasons specified in s 102(2), is capable of being 'any other reason ... which in the opinion of the Minister is sufficient to justify such exemption.'

2. Section 102(3) provides a broad discretionary power to grant a certificate of exemption for reasons other than those specified in s 102(2).[58] The breadth of the discretion is reinforced by s 102(7) which provides that the Minister may grant a certificate of exemption in respect of a mining lease 'whether or not a recommendation is made by the Warden'.

   [58] Haoma Mining NL v Tunza Holdings Pty Ltd [2006] WASCA 19; (2006) 31 WAR 270 [76].

3. Sections 102(2) and 102(3) constitute separate pathways to the grant of a certificate of exemption - they are separate sources of discretionary power and the inclusion of specific reasons in s 102(2) does not justify reading down the broad discretionary power in s 102(3). In short, the power in s 102(3) is not confined by s 102(2) in the way contemplated by the warden.

4. The discretion is bounded by the subject matter, scope and purpose of the Act.[59] In my view, however, the subject matter, scope and purpose of the Act do not require a reason relied on for the purposes of an application under s 102(3) to be of a different character from the reasons specified in s 102(2). To the contrary, the wide variety of circumstances (geological, economic, environmental, political, financial and legal) that have the capacity to affect mining activities favour the subsection being construed broadly. A combination of factors, each of which individually may not ground a successful application under s 102(2) may nonetheless justify the grant of a certificate of exemption under s 102(3).[60]

Reasons upon which application is based must exist when application made

[59] Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875 [58] (French J); FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, 368 (Mason J); Commissioner For Equal Opportunity v Adi Limited [2007] WASCA 261 [44] - [46] (Martin CJ, Wheeler & Pullin JJA agreeing).

[60] GMK Exploration Pty Ltd v Morgan [174].

1. In my view when an application for exemption is made under s 102(3) the reason or reasons justifying the exemption must be constituted by reasons that exist in the expenditure year to which the application relates and thus they must exist at the time the application is made. When an application for exemption for future years is made in respect of a mining lease, the material facts, which constitute a reason, will include an expectation that circumstances will exist in the years to which the application relates that justify the exemption.

2. My reasons for holding the view expressed in the preceding paragraph are as follows:

   (a)An application for a certificate of exemption must be made prior to the end of the expenditure year to which the proposed exemption relates or within the prescribed period of 60 days after the end of that year.  The prescribed period does not extend the expenditure year but provides an opportunity to undertake the necessary accounting and assess whether an application should be made.

   (b)It follows from the requirement that an application must be made during the expenditure year or within 60 days thereafter, that the reason or reasons for applying for a certificate of exemption will be constituted by material facts (a state of affairs) that exist in the year to which the proposed exemption relates, or, in the case of an application in respect of a mining lease made prospectively, by material facts that constitute a reason why it is anticipated that an exemption will be justified in future expenditure years.

   (c)The reality that an application for a certificate of exemption will be grounded in facts that exist (or are expected will exist) in the expenditure year to which the application relates provides powerful support for construing the word 'reason' in s 102(3) as being a reason constituted by facts that exist or are expected to exist in the expenditure year. This is not to say that, in relation to an application made where there has been non-compliance, or where there may have been non-compliance,[61] evidence of subsequent events may not be relevant to reasons given to justify the grant of an exemption which exist in the expenditure year. Such evidence may advance the strength or legitimacy of the reasons given.

   (d)It may be acknowledged, as Siberia submitted, that the expression 'any other reason ... which in the opinion of the Minister is sufficient ...' is not circumscribed by any express temporal limitation. The omission of any temporal limitation is, however, explicable by the requirement that the application be made within the expenditure year or 60 days thereafter - a requirement which of itself imports a temporal limitation.

   (e)A relevant object of the Act, apparent both from the right of a person to lodge an objection to an exemption application and from the provisions governing forfeiture, is that those involved in the mining industry are encouraged to monitor compliance with expenditure conditions and to act on non-compliance by other tenement holders by making forfeiture applications.[62]  This is a form of industry self‑regulation. As it has been put, 'by providing a system of applications for forfeiture with consequent advantages for successful plaintiffs, Parliament has cunningly co-opted the general public as an enforcement agency for the conditions imposed upon holders by the Act'.[63]  If a tenement holder was able to rely on events occurring after the end of the expenditure year, which were unconnected to facts existing in the expenditure year, as constituting a reason for exemption then an objector or applicant for forfeiture would be prejudiced.  An objection or plaint, well-founded when it was made, could be defeated by the tenement holder's reliance on subsequent events. This would undermine the policy of self‑regulation.

   (f)A further object of the Act is that matters affecting the security of tenure of tenement holders should be resolved expeditiously. This object is evident in the requirement that an application for exemption be made in the expenditure year to which the application relates or within 60 days thereafter, and that forfeiture applications must be commenced within the expenditure year or within eight months thereafter.[64]  The object is reflected also in the requirement that an objection to an exemption application must be lodged within 35 days of the application being made.  An expeditious process assists in achieving the broader object of certainty of tenure.  By ensuring that objections and plaints are dealt with expeditiously, the public interest in ensuring the exploitation of mineral wealth is achieved.  If 'any other reason' were construed as permitting events after the end of the expenditure year to constitute a reason for the grant of an exemption this would encourage delay.  Delay would work in favour of those applicants - especially those in financial difficulty - who hope that 'something will turn up'.  For example, it would be in the interests of an impecunious tenement holder to prolong the determination process in the hope of an improvement in its financial position in later expenditure years which might then be advanced as a reason for granting an exemption.

   (g)Expenditure conditions must be complied with on an annual basis, subject to the possibility of an exemption being granted in respect of a mining lease for a period of up to five years. Construing 'any other reason' in s 102(3) as requiring a reason constituted by material facts that exist in the expenditure year to which the application relates is consistent with the requirement that expenditure be assessed and satisfied on an annual basis as opposed to by reference to some longer period.

   (h)The breadth of the discretion conferred by s 102(2) (as recognised in the authorities) is a matter that weighs in favour of a construction of 'any other reason' which is not confined by a requirement that the reason be constituted by material facts existing in the expenditure year to which the application relates. In my view, however, the construction I favour aligns more closely with the several objects of the Act to which I have referred, particularly when regard is had to the requirement that an application for exemption be made within the expenditure year or within 60 days of its end.

   (i)In my view nothing said by Allanson J in the passages in Siberia Mining Corporation Pty Ltd v Wilson,[65] relied on by Siberia, constitutes a clear statement of principle on the point of construction under consideration.  I accept that Warden Maughan's decision in GMK Exploration Pty Ltd (subject to Deed of Company Arrangement) v Morgan supports Siberia's contentions, but I am not persuaded that Warden Hall's decision in Inca Minerals Ltd v Brewer provides support for Siberia.  In Inca Minerals Warden Hall specifically stated at [88] that his conclusion was based on a satisfaction that time was required 'during the Expenditure Year'. In my view Warden Hall's reasoning reflects the proposition (recorded in the warden's reasons in this case at [85]) that evidence of events after the end of the expenditure year may be relevant if it lends support to evidence about matters alleged to have taken place during the expenditure year.

Work done and money expended after the exemption application is made is a mandatory consideration

[61] See Carnegie Gold Pty Ltd v Maughan [94].

[62] See Mining Act 1978 (WA), s 100(1): a successful applicant for forfeiture has 'a right in priority to any other person to mark out or apply for, or both, a mining tenement upon the whole or any part of the land that was the subject of the surrendered licence or lease'.

[63] Roberts v Hugill (unreported, Warden's Court at Mount Magnet, Library Vol 12 Folio 5, 26 February 1997).

[64] Mining Act 1978 (WA), s 98(2).

[65] Siberia Mining Corporation Pty Ltd v Wilson [2015] WASC 322.

1. Before turning to the issue of whether a reason relied on for the purposes of s 102(3) must explain or justify non-compliance with expenditure conditions it is helpful to consider the construction of the expression 'the work done and the money spent on the mining tenement by the holder thereof'.

2. Section 102(4) requires regard to be had to two mandatory considerations 'when consideration is given to an application for exemption', they are:

   (a)The current grounds upon which exemptions have been granted; and,

   (b)The work done and the money spent on the mining tenement by the holder thereof.

3. The mandatory considerations are not reasons for granting an exemption, indeed when considered they may result in an application being refused. They form part of the consideration that the Minister must make before the application is to be determined.

4. The reference to 'current grounds upon which exemptions have been granted' requires regard to be had to those of the current grounds relied upon for exemption as have previously resulted in the grant of an exemption or exemptions in respect of the tenement under consideration.[66] 

   [66] Haoma Mining NL v Tunza Holdings Pty Ltd [57], [60].

5. The introductory words to the subsection 'when consideration is given' combined with the use of the past tense in the phrase 'work done and the money spent on the mining tenement by the holder thereof' support the construction that it is work done and money spent up to the date of consideration of the application that must be taken into account when considering an application for a certificate of exemption.

6. There are three further matters that support the construction of the words 'work done or the money spent on the mining tenement by the holder thereof' as identified in the preceding paragraph.  They are as follows:

   (a)The subsection has two distinct parts and, whilst the words 'current grounds upon which exemptions have been granted' necessarily refer to expenditure years that precede the application, syntactically, there is no reason why the words 'work done and the money spent on the mining tenement' should be taken to refer to work done and money spent prior to the application as opposed to prior to the date on which consideration is given to the application.

   (b)The subsection contains no reference to any date other than the date on which 'consideration is given to the application'.  Had the legislature intended the mandatory consideration to be work done and money spent on the mining tenement prior to the application as opposed to prior to consideration of the application that could easily have been made plain.

   (c)The objects of the Act do not require the words 'work done and money spent' to be construed restrictively as work done and money expended up to the date of the application.  In this context the policy of self-regulation to which I have referred above does not have the same significance.  An objector to an exemption application or a plaintiff to a forfeiture application knows at the time the objection is lodged or the plaint is filed that work may be done or money may be expended on a tenement between the application for exemption and the consideration of the application.  This presents a known risk and in that sense is qualitatively different from a 'reason' arising after the date of the application and before the date on which the application is considered.

   (d)This construction is supported by the objects of the Act identified by Pullin JA in Ex parte Cazaly Iron, to which I have referred earlier. Section 102(4) should be given its full effect such that the Minister must have regard to all work done and money spent on the tenement up to and including the time when the exemption application is before the warden for hearing, and, in the case of the Minister, up until final determination by the Minister.[67]

Reason not required to explain or justify non-satisfaction of expenditure conditions

[67] Newmont Duketon Pty Ltd v Angelopoulos [2006] WAMW 20 [114] (Warden Calder).

1. The question of whether the reason relied upon for an application under s 102(3) must explain or justify non-compliance with expenditure conditions involves a finely balanced constructional choice.

2. On the one hand, the public interest in tenement holders exploiting tenements held by them coupled with the requirement that the Minister form the opinion that the reason is sufficient to justify the exemption, supports a construction that requires the reason to explain or justify non-expenditure. It is difficult to conceive a reason for granting an exemption that did not relate to the non-compliance with the expenditure conditions. Further, s 102(3) cannot be divorced from its context. The purpose of the exemption is to relieve the applicant of the requirement to comply with the expenditure conditions in certain circumstances. Viewed from that perspective, to require the reason relied upon to be one that must explain or justify the non-compliance with the expenditure conditions is unexceptional and conforms with the statutory objects to which I have referred earlier. It may also be seen as consistent with the rationale that underlies the reasoning of the High Court in Forrest & Forrest v Wilson in the passage cited earlier.

1. On the other hand, the discretion in s 102(3) is not confined by a requirement to explain or justify the non-satisfaction of the expenditure conditions as opposed to a requirement to justify the exemption. The legislature has chosen to express the discretion in broad terms - whether the reason is sufficient to justify an exemption is a matter on which the Minister is to form an opinion. The absence of any express conditions on the discretion counts against implying a condition on its exercise that requires an applicant to explain or justify non-compliance with the expenditure conditions.

2. For the reasons set out in the following paragraphs, I have concluded that the discretion conferred by s 102(3) is not conditioned by a requirement that the reason relied on explain non-compliance with the expenditure conditions in the expenditure year.

3. First, there is no textual warrant for conditioning the discretion by a requirement that the reason explain non-compliance. Rather the language of the subsection is consistent with the grant of a broad discretion confined only by the subject matter scope and purpose of the Act.  The subsection requires a reason that justifies the exemption, not one that justifies non-compliance with the expenditure conditions. 

4. Second, the authorities make it plain that the Minister is entitled to take into account matters of broad policy and principle when making decisions concerning the grant of a licence or lease.[68]  There is no reason in principle why, in the absence of any express limitation, the Minister's discretion to grant a certificate of exemption should not be equally wide and embrace matters of policy and principle.

   [68] Tortola Pty Ltd v Saladar Pty Ltd [1985] WAR 195; 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 Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343.

5. Third, none of the mandatory considerations in s 102(4) are matters that explain non-compliance with the expenditure conditions in the expenditure year. It is difficult to accept that the legislature intended that the Minister be bound to take into account matters that did not explain non-compliance but that the Minister's discretion was otherwise limited to matters that did explain or justify non-compliance.

6. Fourth, the construction of s 102(3) preferred by me is consistent with the reasoning of Archer J in Carnegie Gold v Maughan in which her Honour held that non-compliance with the expenditure conditions is not a pre-requisite of a valid application for an exemption.

Grounds 1(a) and (b) - disposition

1. Grounds 1(a) and (b) are established. In my view, for the reasons stated above, the discretionary power conferred by s 102(3) is not confined by a requirement to identify a reason, sufficient for the grant of an exemption, that is of a character that is different from the character of the reasons specified in s 102(2). Accordingly, with respect, I consider that the warden made an error of law that is apparent on the face of the record. Further, if a warden 'misconstrues the statute or other instrument and thereby misconceives the nature of the function which [the warden] is performing or the extent of its powers in the circumstances of the particular case', the warden commits a jurisdictional error.[69]  In this case, the warden's error of law constitutes a jurisdictional error.

   [69] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 177 - 178.

2. I have reflected on Mr Thompson's submission that the warden undertook the correct analysis even if the view his Honour expressed on the construction of s 102(3) was not correct. I am unable to accept the submission. The error was material. It is not possible to conclude with confidence that it did not affect the warden's decision-making process.

3. Before leaving ground 1, I observe that in practical terms if a tenement holder is unable to establish one of the reasons specified in s 102(2) it may well be that reliance on the same facts for the purposes of s 102(3), without more, will not be sufficient to persuade the warden to recommend the grant of an exemption. It may be, however, that those facts taken with others, constitute 'any other reason' that in the opinion of the Minister justifies an exemption.

Ground 1(c) - disposition

1. Ground 1(c) is established.  The warden's consideration of grounds (ii) and (iv) ('the expenditure and exploration on the Mining Leases since the end of the Expenditure Year' and 'the realisation of the company's plan following the Expenditure Year') proceeded on the basis that neither ground explained why the minimum expenditure commitments were not met during the Expenditure Year and thus were (implicitly) considered to be irrelevant. 

2. For the reasons given, work done and money spent up to the date of consideration of the application constituted a mandatory consideration and the warden was required to have regard to them.  Accordingly, and with respect, I consider the warden made an error of law in his approach to the expenditure and exploration since the end of the Expenditure Year.  In so concluding I do not overlook the fact that the warden in fact had regard to, at least, some work done after the end of the Expenditure Year - he observed that limited development had been undertaken in the following expenditure year and little had changed as at the end of 2016 - but it is not clear whether he considered the full extent of work done and money spent.

3. Further, in my respectful view, and conformably with the views I have expressed on the construction of s 102(3), the relevance of evidence adduced in support of an application under s 102(3) is to be determined by a question framed in terms of whether the applicant has established a reason that justifies an exemption and not whether the applicant has explained or justified a failure to meet the expenditure conditions.

4. Accordingly, ground 1(c) is established.  The warden made an error of law on the face of the record which constitutes a jurisdictional error.

5. There are two further points to be made in the context of ground 1(c). First, the requirement that the facts which constitute the reason for exemption exist at the time of the application - that is, in the expenditure year to which the application relates - confines the evidence that can be relied upon in support of an application under s 102(3). This is not to say that evidence of events that take place after the expenditure year are irrelevant. They may be relevant if they have some bearing on the facts relied to establish the reason, as in the example given by the warden at [85] of his Honour's reasons.

6. Second, in its original application Siberia's reliance on s 102(3) was expressed as follows:

   Section 102(3) - Any other reason which may be prescribed or which in the opinion of the Minister is sufficient to justify such exemption, including matters dealing with the company placing itself into voluntary administration after an unsuccessful debt restricting [sic] program, ongoing discussions with potential investors/buyers and the recent cessation of some of those discussions.

7. The words 'any other reason which may be prescribed or which in the opinion of the Minister is sufficient to justify such exemption' did not identify a reason for the purposes of s 102(3). Other than serving as an introduction to the matters mentioned in the remainder of that section of the application - they conveyed nothing of substance about Siberia's application - they were meaningless.

Ground 2

1. In rejecting the fresh evidence Siberia sought to adduce, the warden was guided in part, at least, by the view that the evidence adduced by Siberia was required to explain why the minimum expenditure conditions were not met. This approach departed from what was required by s 102(3), and for the reasons given, in that respect his Honour erred.

2. I have reservations, however, that the fresh evidence Siberia sought to adduce was relevant to the considerations that the warden was required to address. Much of the evidence seems to be directed to the financial and corporate difficulties of Ora Banda (far removed in time from the Expenditure Year) and their relevance to the grounds of Siberia's application is not immediately apparent. It should be borne in mind that the mandatory considerations in s 102(4) are directed to work done and money spent on 'the mining tenement'. I interpolate that the phrase 'the mining tenement' can only be interpreted as meaning the mining tenement for which exemption is sought.

3. Most significantly, relevant evidence of work done and money expended on the tenements, if it exists, is obscured by reference to voluminous documentary materials explaining Ora Banda's corporate and financial problems.  Further for the evidence to be relevant it must relate to material facts that existed in the Expenditure Year.  Plans formed after the Expenditure Year that have no relation to plans formed in the Expenditure Year are irrelevant.

4. Although, as I have explained, I consider that the warden's approach to the admission of the fresh evidence was guided by the wrong principle, his Honour was right to approach the application with caution.  It was an application to re-open the evidence and the power to re-open is to be exercised sparingly.[70]  There is a strong public interest in finality of litigation and, that interest applies with equal force to proceedings of an administrative nature being conducted before a warden.

   [70] Wentworth v Woolhara Municipal Council [1982] HCA 41; (1982) 149 CLR 672, 684 (Mason ACJ, Wilson and Brennan JJ).

5. I have not received submissions from the parties in relation to the fresh evidence other than at the relatively high level referred to in this judgment.  Determining ground 2 is not critical to the outcome of the application.  In the circumstances as I am without the benefit of detailed submissions from the parties the better approach is not to engage in an assessment of relevance of the evidence and for the relevance of the fresh evidence to be determined by the warden in the light of these reasons.

6. There is one final point to be made in relation to this ground.  The warden is obliged to have regard to work done and money spent on the tenements up to the point when the application is considered.  In my view, this means that the warden is obliged to consider the evidence as it stands at the time the hearing of the application is concluded.  If a decision on an application is reserved by a warden it is not open to the applicant for the exemption to supplement, as of right, the evidence to be considered by the warden with additional evidence of work done and money spent.  Evidence of further work done and money spent may be placed before the Minister so that it can be taken into account when the Minister considers the application.

Discretionary grounds for refusing relief

1. Mr Thompson submits that the relief sought by Siberia should be denied on discretionary grounds.

2. First, Mr Thompson submits that relief should be denied on the ground that the relief would be futile because the warden has previously expressed views on a matter and inevitably, would come to the same decision.[71]  In effect Mr Thompson pointed to the fact that two different wardens had rejected Siberia's applications for exemption despite Siberia's opportunity to argue the case twice with the benefit of many years preparation.  This submission was supported by reference to the warden's conclusion that there was no real possibility that the further evidence would produce a different result even if accepted.[72]

   [71] Ex parte Savage and Savage [1989] WAR 46 [53].

   [72] Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19 [123] - [124], [129].

3. If a decision-maker departs from a legislative requirement it is only in an exceptional case in which the court will refuse relief on the basis that actual compliance with the requirement would not have been material to the exercise of discretion.[73]  On the materials before this court Siberia's application faces difficulties but I am not persuaded that this is an exceptional case in which it can be said that the grant of relief is futile.

   [73] Re Minister for Indigenous Affairs; Ex parte Woodley (No 2) [2009] WASC 296.

4. Secondly, Mr Thompson submitted that there had been undue delay in bringing the application, notwithstanding that the application was brought within time for the purposes of O 56 of the Rules of the Supreme Court 1971 (WA). Mr Thompson submits that the delay in this case was 'undue' taking into account the circumstances of the case as a whole. The delay has been explained and I am not persuaded that it is undue delay that warrants refusing relief.

Conclusion and orders

1. I will make orders quashing the warden's decision and ordering that the matter be reheard and determined according to law.

2. Nine years have elapsed since the exemption application was made.  There have been two hearings in which a great deal of evidence has been adduced.  In my view a third hearing should not be required.   Although ultimately it is a matter for the warden, in my view, the application is capable of being resolved on the basis that the parties file and serve submissions as to the relevance of the fresh evidence and that Siberia have an opportunity to file and serve evidence of any work done and money expended on the tenements since the conclusion of the hearing on 30 November 2017 and for Mr Thompson to reply to that evidence.

3. I will hear the parties as to the terms of the orders and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AS
Associate to the Honourable Justice Tottle

15 JUNE 2020