Stow v Mineral Holdings (Australia) Pty Ltd

[1979] HCA 30

HIGH COURT OF AUSTRALIA

BARWICK CJ, STEPHEN, MASON, MURPHY AND AICKIN JJ

STOW AND OTHERS v MINERAL HOLDINGS (AUSTRALIA) PTY. LTD.

(1994) 180 CLR 295

22 June 1979

Mining (Tas.)—Prospector's licence—Grant—Minister's power—Application—Right to object—Persons claiming estate or interest in affected land—Mining warden to hear and determine objections Objectors not claiming estate or interest—Competency—Jurisdiction of warden—Power to grant or refuse licence—Appeal to Supreme Court from final decision of warden—Refusal of licence—Whether final decision—Whether determination of objections judicial function—Mining Act 1929 (Tas.), ss. 2 "Warden's Court", 15A(1), 15c(3), 110(1).

Decisions

BARWICK CJ This appeal arises out of an application under s. 15A of the Mining Act 1929 as amended (Tas) ("the Act"), for a special prospector's licence. The Act, like most mining legislation in Australia, has been concerned with the encouragement of mining. No express and certainly no mandatory provision is made for the consideration in relation to the grant of mining licences or tenures of the impact of that activity on the more abiding features and values of the environment. This Court, however, can only be concerned in this case with the construction and application of the Act as it stands.

2. I have had the advantage of reading the reasons for judgment prepared in this matter by my brother Aickin. I am thus relieved of any necessity to recite the relevant facts and circumstances or the applicable statutory provisions.

3. The appeal raises, first, whether the applicants or any of them were competent under the Act to object to the granting of the respondent's application for the special prospector's licence; secondly, whether the warden of mines had jurisdiction to decide whether in law or in fact they had any relevant estate or interest in the subject land; thirdly, whether the objections they purported to raise were in their nature objections within the meaning and scope of s. 15c(3) of the Act; fourthly, whether the warden of mines, in hearing and determining these objections, was the warden's court within the meaning of the Act, that is to say, whether he was then

(1) Stow v. Mineral Holdings (Aust.) Pty. Ltd., (1975) Tas SR 25.

acting in a judicial capacity: see definition of warden's court in s. 2(1).

4. I am in full agreement with my brother Aickin and for the reasons he assigns that within the meaning of s. 15c(3) none of the appellants were persons who had any estate or interest in any land thin the area in respect of which the special prospector's licence was sought. But, as my brother points out, none of them claimed to have any such estate or interest.

5. In my opinion, the Act does not commit to the warden the determination of the question whether the objector has in law the estate or interest he claims: that would be a most unlikely function for the warden to perform, particularly if his decision were to be treated as judicial and binding. Sub-section (3) pointedly describes the competent objector as one who "claims any estate or interest" and sub-s. (4) limits the power of the warden to the hearing and determination of the objection in fact made. No doubt the warden could decide that the interest claimed by the objector was not a relevant estate or interest: and therefore could decline to accept the proffered objection. But that is quite different from deciding whether the person claiming a relevant estate or interest in the subject Ind had in law and in fact such an estate or interest.

6. Hence I agree that the objectors were not competent objectors, not because they had no relevant estate or interest, but because they claimed no such estate or interest. But I am unable in any case to agree that the warden has jurisdiction to decide whether, in fact and in law, an objector has the estate or interest in land which he claims to have. As I have said, the warden can decide that the objector is not competent to object because he does not claim an estate or interest in the subject land.

7. Sub-section (3) of s. 15c does not state the nature of the permissible objection and, in particular, does not limit it to an objection relevant to the estate or interest claimed. I do not find any basis in the language of the Act or of its legislative history for confining the nature of the objection which may be made to the granting of an application. It must, of course, put forward a reason why the application should not be granted: this quite obviously affects the nature of the objection. By limiting the possible objectors to those claiming an estate or interest in the subject land, the legislature may have assumed that that circumstance would itself secure objections which in some way related to the impact of the exercise of the proposed licence upon the proprietary interests of the objector. But that surmise does not justify, in my opinion, the conclusion that in point of construction objections are so limited. The legislature apparently did not find it desirable to specify what might be the nature of an objection to the grant of the application. I feel unable by a process of construction to infer specific limitations on the nature of the permissible objection.

8. Further, the obligation under sub-s. (4) to hear and determine the objection is mandatory. It is not made contingent on the existence in fact and in law of the requisite estate or interest or upon a finding of that existence: or upon the particular nature of the objection. The one condition to which that obligation is expressly subject is that the objection should be current and not have been withdrawn or abandoned. The warden could, in my opinion, decide that what was set up as an objection, even if true, afforded no reason why the application should not be granted. In that sense, he could decide it was not an objection, because it did not put forward a reason for not granting the application.

9. No consequence of a determination of the objection by the warden is provided by the Act. In particular, the Act does not provide that the warden's conclusions are in any respect binding on the Director or on the Minister or for that matter on the objector. The objector would be at liberty, it seems to me, to raise his objections in representations to the Minister who could give effect to them despite the views of the warden. No relevant power of the Minister is made contingent on any decision or recommendation of the warden. Nothing in the Act would in terms or, in my opinion, by implication preclude the Minister from granting or refusing a special prospector's licence whatever the warden may have determined about an objection.

10. Then, as I have pointed out, the warden's duty is to hear and determine the objection. I take no more from the word "determine" in the context of the Act than "decide the validity of or the acceptability of". Although the formula "hear and determine" is frequently indicative of a judicial role, it is neither universally nor necessarily so. I do not think it does so in this instance. But I assume that the hearing of the objection involves receiving evidence of facts; and determining the objection involves deciding whether what is raised affords a valid reason for not granting the application.

11. I agree with my brother Aickin in thinking that the warden has no power or authority to accept or reject the application for the special prospector's licence. This, as my brother says, is within the exclusive power of the Minister. The Minister's discretion in that respect is not hedged round with stipulated considerations which he must have in mind or by reference to which he must decide whether or not to grant the licence. I would see no reason derived from the terms of the Act why the Minister should not be moved to reject the application on environmental grounds (2). In so far as the Minister may take such matters into consideration, the warden, in my opinion, by the determination of an objection cannot pre-empt the decision of the Minister or present him with a finding by which he is bound.

12. The legislative history of the Act shows that in 1958 a considerable change was made. The warden's function of recommendation was removed. I am unable to conclude that the function of determining the fate of an application by upholding an objection was then given to him. Indeed, I can see nothing in the actual terms of the Act which would lead me to think that the legislature in 1958 took from the Minister the capacity to grant or refuse an application, irrespective of the warden's views on the validity or otherwise of an objection. In my opinion, though the warden may decide whether an objection is valid, what he decides has no legal effect on the application.

13. No doubt thus to confine the operation of the Act to the express turns of s. 15c would appear to leave the warden's activity under s. 15c(4) as of no consequence. However, it may have significance in the public mind and in that of the Minister called upon to make the decision on the application. The effect it will have depends on the respect the Minister is prepared to give it, having regard to such other material as is available to him and to the attitude of the public which the warden's decision may excite. Nonetheless, I cannot think this is a very satisfactory administrative result. Yet, in my opinion, it is the proper result of the construction of the Act.

14. The alternative is to attempt to burgeon out the legislative void: and to do so upon the footing that the Act is an homogeneous and logically interrelated whole. I appreciate the seemingly workable result which could thus be achieved. The legislative history of the Act does not lead me to think that, in its present form, the Act represents a coherent and logically interrelated scheme. I feel unable to conclude that such a result is attainable by construction of the Act. The Court would not be warranted in constructing limitations upon the nature of the objection which a qualified objector could make or in erecting consequences of the warden's proper determination of an objection which in either case the Act has not enacted. To erect such limitations and consequences, in my opinion, is to legislate rather than to construe.

15. It is apparent from what I have written that, in my opinion, the

(2) cf. Murphyores Incorporated Pty. Ltd. v. The Commonwealth (1976), 136 CLR 1.

warden was not acting in a judicial capacity when hearing the objectors or in deciding the validity of their objections. As I construe the Act, the hearing by the warden of a determination of an objection had none of the characteristics of a judicial proceeding or a judicial decision. Consequently, in my opinion, the warden's determination upon the objections did not fall within s. 110(1) of the Act. The respondent's appeal to the Supreme Court of Tasmania was therefore, in my opinion, in that respect incompetent. But the order of the warden rejecting the respondent's application for the special prospector's licence was not authorized by the Act. Consequently, it could have been quashed by prerogative writ. In so far as the Supreme Court held that the warden's order was made without jurisdiction and should for that reason be set aside, the reasoning of the decision was correct. No doubt, had an application for an order absolute for certiorari to quash been made during or at the conclusion of the appeal, the warden's order should have been quashed.

16. The Act does not specify the grounds on which an appeal may be brought, though it contemplates the initiation of the appeal by a notice which shall set out the grounds on which the appeal is made. The Supreme Court is empowered to allow reliance by an appellant on grounds which have not been notified. Amongst the powers of that Court is the power to reverse the order or decision. But these powers are related to orders etc. of the warden's court. Thus, in my opinion, the Act does not give to that Court jurisdiction to set aside on appeal an order made by the warden otherwise than in a judicial capacity. There is no room, in my opinion, to treat the appeal of the respondent as effective to enable that Court to set aside the warden's order, that order not being, in my opinion, an order of the warden's court though, as I have said, it was, in my opinion, made without jurisdiction.

17. In the result, therefore, the orders of the Supreme Court ought to be set aside, as the appeal to it was incompetent. The appeal to this Court should be allowed. Again, this cannot be regarded as a satisfactory result. But it stems, in my opinion, from the inadequate attention paid by the legislature in the enactment of the provisions of the Act.

STEPHEN J. I have had the advantage of reading the reasons for judgment of Aickin J. I agree with all that he has said. The appeal should be dismissed.

MASON J. I agree, for the reasons given by Aickin J., that this appeal should be dismissed. In support of this conclusion I would add the following comments.

2. The true character of the warden's function under s. 15c(4) of the Mining Act 1929 (Tas.) is related to the grounds upon which an objection may be made under s. 15c(3) to the issue of a special prospector's licence. If the Act places no limitation upon the grounds on which an objection may be made and sustained, they will include considerations of policy relevant to matters of public interest. In this event there might be something to be said for the view that the warden's function, despite the presence of the words "hear and determine", is that of recommendation and not that of determination. The concession to the warden of a power to determine far-reaching issues of policy in such a way as to bind the Minister would be quite at odds with the wide general discretion conferred by s. 15A(1) on the Minister himself to grant a special prospector's licence upon the recommendation of the Director.

3. Conversely, if the grounds of objection permitted under the Act are limited in scope and are confined to matters going to the validity of the application including compliance by the applicant with the requirements of the Act and the regulations and priority of marking out, there is no reason for failing to acknowledge that the warden's duty to hear and determine the objection is, as those words so plainly indicate, definitive and judicial in character.

4. To my mind it is very significant that the provisions relating to objections and to their determination by the warden follow immediately after s. 15c(1) (which imposes obligations on the applicant to mark out and to advertise) and s. 15c(2) (which prescribes the contents of the advertisement). And it is equally significant that s. 15c(5), in dealing with applications for the same or common areas, provides that priority shall be given to the applicant who has first marked out the land. This sub-section appears to eliminate as a criterion of priority between applications of this class considerations of policy and public interest. No doubt the Minister is at liberty to take into account these considerations in deciding whether to grant or to refuse a particular application, but priority as between the applications is determined by the order of marking out and by that criterion alone.

5. In providing that priority follows the order of marking out s. 15c(5) proceeds consistently with the general principle applicable to mining leases that has been enshrined in Australian mining legislation over a very long period of time, namely that the title to mine "has been based on possession the person first taking such possession under restrictions imposed being held to have the best right" (3). Section 15c(5) puts applications for special prospectors' licences and exploration licences on a somewhat similar footing by according priority in order of marking out. The point here is that the Act does not provide that such applications are to be dealt with as competing or conflicting application's; instead it provides in effect that they are to be dealt with as successive applications, priority being accorded in the manner already discussed, the later application proceeding to a grant only in the event that the earlier application is held to be invalid or is refused by the Minister. There is, as I see it, in this scheme of things scope for the exercise of a jurisdiction by the warden to decide the order in which applicants have marked out, but no scope for his consideration, or determination, of the relative impact of the two applications upon the public interest.

6. The limitation of the warden's jurisdiction is itself of significance. He is confined to hearing and determining objections. He is not entrusted with a jurisdiction to inquire into applications generally. Such a jurisdiction would be indicative of a concern on his part with issues relevant to the public interest. After all, questions of public interest arise in relation to applications whether they attract objections or not. It is scarcely to be supposed that the legislature intended that the warden should inquire into matters relevant to public interest only in those cases in which a person claims an estate or interest in the land. The absence of any power to inquire into or to determine such matters in cases where no objection is made rather indicates that the considerations in question stand altogether outside the province of the warden in discharging the jurisdiction which is conferred upon him by s. 15c(4).

7. This conclusion is in strict conformity with s. 15A(1) and s. 15B(1) which explicitly entrust to the Director the specific function of making recommendations to the Minister with respect to the grant or refusal of applications for special prospectors' licences and exploration licences and at the same time make the existence of his recommendation in favour of a grant an essential condition of the Minister's power to grant. The attribution to the warden of a power of recommendation, albeit a recommendation which does not condition the exercise of the Minister's power, cannot be justified when the power of recommendation is expressly given by the Act to the Director and the function of the warden, according to the

(3) Warrior Gold-Mining Co. v. Cotter (1867), 3 W.W. and A'B. (M.) 81, at p 90; see also Ex parte Murphy; Re Mineral Deposits Pty. Ltd. (1963), 80 WN (NSW) 786, at p 790.

language of the Act, is that of determination, not that of recommendation, the function being to determine the matters already discussed.

8. I would dismiss the appeal.

MURPHY J. I agree with the Chief Justice's conclusions. The appeal should be allowed.

AICKIN J. This matter comes before us on appeal from the Full Court of the Supreme Court of Tasmania which dismissed an appeal from a judgment of Nettlefold J. who had allowed an appeal from a decision of a warden pursuant to the Mining Act 1929 (Tas). rhose proceedings arose out of an application made by the respondent Mineral Holdings (Australia) Pty. Ltd. for a special prospector's licence under the Mining Act. That application was made on 20 December 1971, on the prescribed form, was addressed to the Minister for Mines and sought a licence to prospect for "all minerals including limestones" in an area of approximately 15 acres of land situated at Milford Creek.

2. The application was made under s. 15A to the Minister for a "special prospector's licence in respect of an area of land not exceeding twenty-five square miles". Such a special prospector's licence may be granted by the Minister on the recommendation of the Director of Mines, but only in respect of "unoccupied land and land on any reserve which is subject to the relevant provisions of this Act." Such a licence authorizes the holder "to hold the area described therein as a prospecting claim and to prospect and search therein for the mining products therein specified" and to conduct various works on the land and to mine so far as may be necessary for prospecting purposes and to take and remove therefrom, for testing purposes only, prescribed quantities of mining products. The expressions "Crown land" and "unoccupied land" are defined. Section 15c provides that any person who claims any estate or interest in any land within the area may object to the granting of the application.

3. It is desirable to set out in full some of the relevant sections of the Mining Act in force at the time. Section 2 contains the following definitions:

"'Crown land' means all land of the Crown in this State (whether or not subject to a Crown lease or a Crown licence), not being land which has been contracted to be sold to any person;

'Mining tenement' means land held under a lease or other instrument under this Act and includes land occupied under any such instrument;

'Unoccupied land' means any Crown land to which this Act applies, and which is not in the lawful possession or occupation of any person under this Act;

'Warden's Court' means the court of mines constituted under this Act for the district in which the subject-matter in relation to which the term is used, arose, or is situate, and includes the warden when acting in a judicial capacity, either alone or with assessors."

4. Section 5 provides:

"(1) Except as otherwise provided therein, this Act shall apply to all Crown land.

(2) Subject to the provisions of subsection (3) hereof and except as provided by section six, this Act shall not apply to the surface, or within fifty feet below the surface, of any land comprised in any public reserve or of land set apart or dedicated for any public purpose.

(3) In any case in which -

(a) any of the lands mentioned in subsection (2) hereof were subject, at the commencement of this Act, to the provisions of the Mining Act 1917, or any of them; or (b) the Governor has declared, by proclamation, that any such land, or any portion thereof, shall be subject to all or any of the provisions of this Act and such proclamation remains in force,

such land or portion, as the case may be, shall be subject to the corresponding or proclaimed provisions of this Act, as the case may require.

..."

5. Section 6 provides:

"(1) The Governor, by proclamation, may declare-

(a) that this Act, or any provisions thereof specified in such proclamation, shall apply to any specified public reserve or land or any mineral, coal, oil, or stone set apart or dedicated for any public purpose, or any part thereof respectively; or

(b) that any land, mineral, coal, oil, or stone specified in such proclamation shall be exempted from this Act or any specified provisions thereof.

(2) Any land so exempted shall cease, to the extent specified in such proclamation, to be subject to this Act, so long as such proclamation remains in force."

6. Section 13 (4) provides:

"Except where otherwise specially provided, no person shall hold more than one prospector's licence or more than one miner's right at any one time."

7. Section 15A provides:

(1) Upon the recommendation of the Director and upon being satisfied as to the ability of the applicant to prospect the claim effectively and to employ in connection therewith such number of men as the Minister thinks necessary for that purpose, the Minister may grant to any person a special prospector's licence in respect of Such area of land, not exceeding twenty-five square miles, as the Minister may think fit.

(1A) A special prospector's licence may only be granted in respect of unoccupied land and land on any reserve which is subject to the relevant provisions of this Act.

(2) A special prospector's licence-

(a) continues in force for such term, not exceeding six months, as the Minister may think fit;

(b)may be granted upon and subject to such conditions, if any, as the Minister may determine; (c) authorizes the holder thereof in accordance with the regulations to hold the area described therein as a prospecting claim and to prospect and search therein for the mining products therein specified; and (d) authorizes the holder thereof and his agents, servants, and workmen on his behalf to dig, bore, sink, and mine so far as may be necessary for prospecting purposes in and upon the claim and take and remove therefrom, for testing purposes only, such quantity as may be prescribed of any mining product for which the licence authorizes him to search.

(3) There is payable in respect of the issue or extension of a special prospector's licence a fee calculated at the rate of ten shillings for each square mile or part thereof of land comprised in the licence.

(4) For the purposes of this section, the expression 'prospecting purposes' includes the carrying out of aerial, geological, and geophysical surveys."

8. Section 15B provides:

"(1) Subject to this section, the Minister may, on the recommendation of the Director, grant to a person who applies therefor a licence, to be known as an exploration licence.

(2) An application for an exploration licence shall be made to the Director in writing, in a form approved by the Minister, and shall be accompanied by a written statement containing particulars of the programme of work proposed to be undertaken by the applicant if the licence is granted and such other particulars (if any) as may be prescribed or as the Director may require.

(3) An exploration licence -

(a) has effect in relation to such area, and for such period, as the Minister may determine;

(b) shall be granted upon and subject to such terms and conditions as are prescribed in this section and such other terms and conditions (including conditions as to the fees and rent to be paid by the holder thereof) as the Minister may determine; and

(c) while in force, has effect to authorize the holder thereof; subject to the observance of the terms and conditions thereof and to the provisions of this Act, to enter upon and pass over or across Crown lands and, subject to subsection (5) of this section, private lands, within the area to which it relates, and to prospect and search thereon for such mining products as may be specified in the licence, and to do all such other acts and things as may reasonably be necessary to enable the holder thereof to engage in large-scale exploration work.

(4) The holder of an exploration licence shall, subject to this Act-

(a) engage, to the satisfaction of the Minister, in such aerial, geological or geophysical surveys and exploration as the Minister may direct or approve;

(b) furnish the Director with such periodical reports and returns as the Minister may direct or approve; and

(c) keep an adequate record of all operations conducted under the authority of the licence, and at all reasonable times permit the Director or any officer authorized by the director so to do, to examine those records and inspect any specimens or materials obtained in the course of those operations.

(5) The holder of an exploration licence shall not enter on private land thereunder unless he has given security as provided in subsection (2) of section seventy, and, upon entering on private land, is subject to sections seventy-one and seventy-two as if his exploration licence were a permit under section seventy.

(6) There is payable in respect of the issue of an exploration licence a fee calculated at the rate-

(a) for the first twenty-five square miles of land comprised in the licence, ten shillings a square mile or part thereof; and

(b) for every other square mile or put andend of land so comprised, one shilling."

9. Section 15c provides:

"(1) A person who proposes to make an application for a special prospector's licence or an exploration licence shall-

(a) as prescribed, mark out the area in respect of which he proposes to make the application; and

(b) within seven days after marking out that area, give public notice, by advertisement in a newspaper, of his intention to make the application. (2) An advertisement under subsection (1) of this section shall specify the name of the applicant and the area in respect of which the application is proposed to be made and such other matters (if any) as may be prescribed.

(3) A person who claims any estate or interest in any land within the area in respect of which an advertisement under subsection (1) of this section has been published may, as prescribed, object to the granting of the application to which the advertisement relates.

(4) An objection under subsection (3) of this section shall be heard and determined by the warden unless the objection or the proposed application in respect of which it is made is withdrawn or abandoned.

10. Section 110(1) provides:

"Except as otherwise in this Act provided, any party aggrieved by any final judgment, determination, or decision of the warden's court may appeal therefrom to the Supreme Court as hereinafter provided."

11. The appellants lodged with the warden objections in the form prescribed under the Mining Act. None of the objections claimed that the objector was a person "who claims any estate or interest in any land in the area in respect of which an advertisement" had been published. The grounds specified in each of the notices of objection were that the area was of scenic, recreational and scientific value, that prospecting or mining would damage the adjoining National Park, and that the land itself was under consideration by the National Parks and Wildlife Service for inclusion in the South-West National Park. The four objectors were described in their objections as being, respectively, the Secretary of the Tasmanian Conservation Trust, a person acting on behalf of the South-West Committee, a person who stated merely that he was interested in the preservation of an area said to contain a range of coastal mountain vegetation in a completely unspoilt condition, and the Secretary of the Launceston Walking Club. Evidence was given at the hearing before the warden by various persons, none of whom was one of the objectors. No evidence was led to the effect that any of the objectors claimed or had an estate or interest in the land. Evidence was given for the applicant as to the nature of the proposed prospecting operations. An initial objection taken before the warden was that none of the objectors was a person who had or claimed any estate or interest in the land in question. The warden ruled that the objectors did in fact have interests in the land sufficient to entitle them to object under the Act. The evidence given on behalf of the objectors was directed to giving a description of the area and the nature of the terrain and vegetation, as well as the nature of the use made of the land by campers, bushwalkers, naturalists and the like, and as to the risk of fire and destruction of the wilderness area which might arise from prospecting operations.

12. The warden in his decision reviewed the evidence and concluded that the evidence was "overwhelming" that any mining activity would have a deleterious effect upon the environment of the locality, quite out of proportion to the supposed advantages which might result in the successful sampling of the deposits of limestone thought to be present in the area. He said: "In the circumstances I find that as alleged by the Tasmanian Conservation Trust, mining activity is not compatible with the recreational and aesthetic uses of this land and on the balance of the evidence before me, the advantages of retaining the area in its present primeval and pristine condition far outweigh the nebulous benefits to be derived from the mining activities proposed", and expressed his decision by saying that: "the application for a special prospector's licence by Mineral Holdings (Australia) Pty. Ltd. will therefore be refused."

13. From this decision the respondent appealed to the Supreme Court on the ground that the warden was wrong in not upholding the contention that the objectors were not persons claiming any estate or interest in the land within the meaning of s. 15c(1) and that the warden should have refused to hear them, that the warden was wrong in taking into consideration the evidence in various respects, and that he did not properly exercise his discretion and exceeded the powers given to him.

14. That appeal came before Nettlefold J. who ordered that the decision of the warden be reversed and that the objections be struck out as incompetent. From that decision the objectors appealed to the Full Court which unanimously dismissed the appeal. It is from that decision of the Full Court that the present appeal is brought.

15. In the course of argument before Nettlefold J. the applicant company Mineral Holdings (Australia) Pty. Ltd. objected that the warden had misunderstood the nature of the function committed to him because he had no jurisdiction to refuse the application. It was argued that under the Mining Act the decision to grant or refuse the application was for the Minister on the recommendation of the Director and not for the warden, whose only jurisdiction was "to hear and determine any objection to the granting of the application". Nettlefold J. accepted this submission and held that the warden had no jurisdiction to make the order which he did make. He further held that the objectors had no estate or interest in the land and therefore were not persons entitled to object. For reasons set out below I am of opinion that he was right in each of those conclusions. He dealt also with the question of whether there was any right to appeal from the warden's decision in the light of the provisions of s. 2 defining the expression "Warden's Court" and s. 110 dealing with the right to appeal to the Supreme Court. He held that the warden in exercising the jurisdiction under s. 15c was acting "in a judicial capacity" and that what he had done constituted a "final judgment determination or decision" within the meaning of s. 110(1). The Full Court of the Supreme Court upheld the decision of Nettlefold J. and agreed with his conclusions, and also said, as Nettlefold J. had said, that, notwithstanding the words used, it was implicit in the warden's decision that what he was doing was to uphold the objections.

16. The critical question under the Act in its present form is the nature of the jurisdiction conferred upon the warden and the effect of an order made by him. It is in my opinion clear, as was held by the Supreme Court, that the warden has no power whatever to accept or reject an application; that is a power vested exclusively in the Minister who is to act upon the recommendation of the Director of Mines. It is for the Minister to determine whether as a matter of policy it is desirable that the licence should be granted or refused. It is for him to weigh up the relative merits of the economic advantages said to flow from the successful establishment of a mining operation and the interests of those concerned to preserve unchanged the environment of a particular area and other competing contentions as to what is, in the public interest, a suitable use to which the land may properly be put.

17. The Act, although specifying the qualification which the objector must possess in order to lodge an objection, does not specify the nature of the grounds upon which an objection may be based or the considerations which the warden is to take into account in considering objections. The Act is moreover silent upon the consequences of a finding by the warden. Since the section requires the warden to "determine" the objections it may be that he can either reject or allow them, but it attributes in express terms no consequence to either decision. The Full Court took the view that for the warden to uphold the objections would be fatal to an application, but the Act does not say this in express terms any more than it says in express terms what is the consequence of the warden disallowing the objections, whether on the ground of want of the statutory qualification to object or on some other ground. Since the only permitted objectors are those claiming some estate or interest in the land, a possible implication is that the Act contemplates that objections will be based only on conflicting interests in the land or possible adverse effects upon the estate or interest of the objector. Some support for this may be found in the fact that s. 15c also deals with exploration licences, which give certain rights to prospectors on private land - see s. 15B(3) and (5), s. 70 (2), s. 71 and s. 71

18. There are some obvious possibilities of other interests in the land which would make it impossible to grant a special prospector's licence, e.g., an objector might object that the land is not "unoccupied land" within the definition, but is land held by him under a Crown Grant or a Crown Lease and thus entirely outside We scheme of We Act with respect to mining on Crown Land, or that, although the area is otherwise "unoccupied land" as defined, that objector is in lawful possession or occupation under the Mining Act. Such persons would be claiming an estate or interest in the land within the ordinary meaning of that expression.

19. Section 15c(5) deals with the case of competing applications for special prospector's licences or exploration licences in respect of the same land and gives priority to the person whose application was first lodged. It appears to be a necessary consequence that the Act does not contemplate that where a person has already been granted a special prospector's licence, a further licence may be granted to some other person in respect of that land. A person holding a prospector's or exploration licence or a miner's right would however have an "estate or interest" in the land since he has at least some rights to occupy and to take minerals from the land (ss. 15A, 15B, 15c and 16) and is described as "holding the land".

20. The first question to be considered is whether any of the objectors had an estate or interest in the land. In my opinion it is clear that none of them had an estate or interest in the land, and indeed none of them claimed to do so. The definition of the word "estate" in the Acts Interpretation Act 1915 (Tas.) was relied upon. Section 46 of that Act provides that, in the absence of a contrary indication, "'Estate', used in reference to land shall include any estate or interest, easement, right, title, claim, demand, charge, lien, or encumbrance in, over, to, or in respect of such land".

21. The expression "interest in land" is not defined in any relevant Act, nor is the compound expression "estate or interest in land". I do not consider that assistance is to be derived from an attempt to apply the statutory definition of "estate" to the compound expression "estate or interest in land". The word "right" in that definition does not in its context mean a public right; it means an individual right of a proprietary nature and I do not think that the word "demand" in this context has any more extended meaning. In my opinion the ordinary meaning of the compound expression "estate or interest in land" is an estate or interest of a proprietary nature in the land. This would include legal and equitable estates and interests, e.g., a freehold or a leasehold estate, or incorporeal interests such as easements, profits a prendre, all such interests being held by persons in their individual capacity. It does not embrace interests in which the person concerned has no greater claim than any other member of the public. All members of the public have a right to pass freely along or across public highways but none have in their capacity as members of the public any estate or interest in such land. Likewise members of the public generally may be entitled pursuant to particular statutes to use specified areas of Crown Land for the purpose of recreation. However statutes such as the National Parks and Wildlife Act 1970 (Tas.) were relied on to give rights to members of the public as such. All members of the public may have the right to go upon such land in the sense that they may freely walk thereon or in defined portions thereof and may resist attempts by the Crown or anyone else to eject them from such land. The fact that some of them are more disposed to go upon the land than others, derive more benefit therefrom and use the statutory right more often than others does not elevate that which is a public right enjoyed by all members of the public equally into a private right capable of being described as an estate or interest in the land.

22. I agree with the reasons given by the Supreme Court for its conclusion that the applicants were not persons who either had or claimed any estate or interest in this land and that they were therefore not competent under, the Mining Act to object to the grant of the licence. A members of the public they may hold strong views as to how the Crown should deal with unoccupied Crown land, but that is a matter which is committed to the discretion of the Crown speaking through the relevant Minister upon the recommendation of the Director of Mines. Like other members of the public they could make representations to the Director of Mines or to the Minister as to the manner in which they should perform their functions under the Act but they are not persons entitled to maintain objections before the warden.

23. The remaining question concerns the right of appeal from the decision of the warden. What is the warden to "determine"? Although a 15c says he is to "determine" the "objections", the statutory scheme is cryptic in the extreme, in that it fails expressly to specify any consequence flowing from his upholding or rejecting the objections. It also fails to prescribe any grounds of objection or any criteria which the warden is to apply. No doubt if there are no objections at all the warden had no function under the Act and the application remains in the hands of the Minister to whom it is originally addressed. The nature of the matters to be determined and the consequences of such determination can therefore be ascertained only from an examination of the Act as a whole and any inferences which can properly be made from it.

24. It is proper also to examine the history of the legislation and in particular the provisions as they stood prior to the introduction of ss 15A, 15B, 15c and 16 in 1958.

25. The Mining Act 1929, as amended up to 1951 provided in s. 15 for prospector's licences" and provided that such a licence should authorize the holder to take up and hold a prospecting claim and that such claim might be taken up on any "unoccupied land or on any reserve which is subject to the relevant provisions of the Act." The expressions "unoccupied land" and "Crown land" were defined in the same manner as in the current Act. Section 15(3) provided "on the recommendation of the warden and upon being satisfied as to the ability of the applicant to prospect the same effectively, the Minister may grant to such applicant a prospector's licence in respect of such area of land in addition to the area prescribed in ordinary cases as the Minister may think fit". Sub-section (4) provided that the licences were to be granted subject to such special conditions as the Minister should determine and sub-s. (6) gave the holder the same rights as are conferred by the present s. 15A(2)(d). It was thus significantly different from the present s. 15A, B and c. In Dodds v. Noldart (4) the earlier provisions were considered by Crisp J. As is pointed out in the judgment of Neasey J. in this case, reg. 6A inserted in the Mining Regulations 1930 (Tas.) in 1931 provided that any person intending to apply to a warden for a recommendation for the grant of an extended prospecting claim or of a special prospector's licence under s. 15(3) should give public notice thereof and that "any person desiring to object to the granting of such application may give notice, in writing, to the warden within fourteen days after such publication as aforesaid, stating the grounds of his objection" and sub-reg. (4) provided that "upon the hearing of the application any person objecting as hereinbefore provided shall be given an opportunity to show cause why the application should not be granted". On those provisions Crisp J. held that the warden's function was only to recommend to the Minister whether the application should be granted and upon that basis he held correctly in my respectful opinion, that the warden did not finally determine any matter and accordingly the recommendation did not comprise a "final judgment, determination or decision" and thus that no appeal lay to the Supreme Court under s. 110.

26. The scheme of that legislation was abandoned with the amendments made in 1958 which introduced the provisions of ss. 15-15c as they now stand. The Mining Act 1929 retains the previous references to wardens and wardens' courts (other than the old s. 15). Section 9 provides that: "There shall be a court of mines for each district

(4) (1955) Tas SR 58.

which shall be held before a warden of mines, with or without assessors." By s. 9(3) every such Court is made a Court of Record. Under s. 10 the Governor may appoint a Director of Mines and such warden of mines as he may think necessary. There is no qualification prescribed by the Act for persons who may be pointed wardens of mines.

27. Under s. 14 the Director, with the approval of the Minister, may issue a coal and oil licence to any person and the warden plays no part in the operation of that section. By s. 15 prospectors' licences other than coal and oil licences authorize and empower the holder to mark out and hold a prospecting claim and to prospect and search for all mining products. It also provides that any such prospector's claim may be taken up on any unoccupied land or on any reserve which is subject to the relevant provisions of the Act. Again there is no provision, save perhaps in regulations, for giving a warden any function in relation to prospectors' licences. It is only when we come to s. 15A which deals with special prospectors' licences that any function is assigned to the warden. That provision is contained in s. 15c which is quoted above and it provides in sub-s. (3) that a person who claims an interest in any land which is the subject of an application may "object to the granting of the application". And sub-s. (4) provides that an objection under sub-s. (3) shall be "heard and determined by the warden".

28. Under sub-s. (5) where there are two or more applications under s. 15A (special prospectors' licences) or s. 15B (exploration licences) the applicant who first marked out the land is to have priority and in the case of applications marked out simultaneously priority should be determined in the manner prescribed by regulations. Under sub-s. (6) the Minister may extend the term of a special prospector's licence so long as the aggregate period does not exceed twelve months. Under sub-s. (8) the Minister may in circumstances there referred to revoke the licence. In none of these processes does the warden play any part.

29. Section 16 provides for a "miner's right" which authorizes the holder to enter upon, mark out and take possession of a claim of a prescribed area on any unoccupied land, to mine and work the claim and take and remove minerals therefrom and dispose of the same as his own property and to do various other acts upon the land. By virtue of s. 13 both prospector's licences and miner's rights (but not special prospector's licences) are to be issued by the Director or by the Registrar or some person authorized by the Director on that behalf. Under s. 15 a prospector's licence may be in respect of such area and subject to such conditions as may he prescribed, whereas under s. 15A the Minister may grant a special prospector's licence in respect of such area of land not exceeding 25 square miles as the Minister may think fit.

30. It may also be observed that under s. 15c(9) a prospector's licence, mining lease, water licence or easement licence may be granted in respect of land comprised in a special prospector's licence or an exploration licence, if the holder consents, "as if the special prospector's licence or exploration licence did not exist .. . " Under that sub-section a miner's right may be exercised with the consent of the holder of the special prospector's licence or an exploration licence "as if land comprised in the special prospector's licence or exploration licence were unoccupied land". By s. 21 no person shall hold any claim in respect of the same land under a prospector's licence and under a miner's right at the same time.

31. Part V deals with leases and s. 25 provides that "the Minister, with the consent of the Governor, may grant under this Act to any persons not being individuals under the age of eighteen years, leases of any unoccupied land". By sub-ss. (2) and (4) it is provided that such leases may be of various categories and of specified areas in the range of 80 acres to 320 acres and are not to be granted for a term exceeding twenty-one years. By s. 26 it is provided that such leases may be granted in respect of any public reserve or land reserved or set apart for any public purpose, private land, land comprised in any residence area or business area, or land comprised in any coal, oil or stone lease.

32. Under s. 32 applications for leases are to be made to the Director. Under s. 35 where an application for a lease comprises or includes land held by the applicant as a claim under miner's right, the interest of the applicant is not affected unless such lease is granted. Under s. 39(1) it is provided that "any person claiming any right to, or interest in, land comprised in any application for lease or any part thereof may object to the granting of such application". And sub-s. (3) provides that "every such objection shall be heard and determined by the warden, unless the same, or the application in respect of which it is made, be sooner withdrawn or abandoned", i.e. in the same form as s. 15c(4). Under s. 41(1) where an objection against the granting of an application for a lease is upheld, or prior to the hearing the application is withdrawn, the objector, upon complying with the prescribed conditions, shall have a prior right, to the exclusion of all other persons, to mark out the land thereby affected and apply for a lease thereof or of part thereof. Under s. 42 the granting of any lease is to be "in the absolute discretion of the Governor, although the applicant may have complied with all the requirements of this Act in relation thereto", and it is provided that failure to comply with the requirements of the regulations shall not necessarily debar an applicant from obtaining a lease if the Minister is satisfied that all material requirements have been fulfilled, and that no person would be prejudiced.

33. Division VII of Pt V deals with forfeiture of leases and under s. 56 where a lease is liable to forfeiture for breach of any covenant or condition, any person may apply to the warden for the forfeiture thereof. Sub-section (3) provides that with every application the applicant should lodge an application for a lease of the land. Under s. 57 applications for forfeiture are to be heard and determined by the warden's court and if it finds that the lessee has committed a breach of any of the covenants, the Court may declare the lease forfeited or impose a fine and, if the lease is forfeited it can order a recommendation for the disposal of the land comprised in the lease. Under s. 60 it is provided that the applicant for forfeiture shall have a preferential right to a lease of land.

34. Division VIII of Pt V deals with termination of leases and it is sufficient to say that the warden appears to play no part in that process. Part VI deals with licences for water rights and mining easements. Section 64 provides that the Minister, with the consent of the Governor, may grant to the holders of leases or claims, other than prospecting claims, licences as thereinafter provided. Again the warden appears to play no part in those procedures.

35. Part VII deals with mining on lands other than Crown Land and on reserves. Division 1 deals with private land, a matter committed to the Director. Section 72 provides that persons suffering damage by reason of anything done in pursuance of the provisions of s. 71 may make a claim to the warden for payment of compensation. The amount may be fixed by the warden. Section 79 gives the warden's court jurisdiction to order the removal of obstructions on public ways by the holders of leases or licences. Under Pt VIII, s. 81 States that with the consent of the parties to any tribute agreement, disputes thereunder may be determined summarily by the warden and any such determination shall be final and conclusive, otherwise such dispute is to be determined by the warden's court.

36. Part XI deals with "courts of mines" an expression equivalent to the "warden's court" for the relevant district. Section 94 provides that objections to applications for mining tenements and all applications for the forfeiture of claims and all matters which the Act requires to be determined by the warden are to be heard before the warden sitting alone. The expression "mining tenement" is defined in s. 2 as "land held under a lease or other instrument issued under this Act and includes land occupied under any such instrument". Most other matters are, if any party so applies or the warden so directs, to be heard by the warden and two assessors, but in the event of a difference of opinion the warden's view prevails. By s. 96 the warden's court is given jurisdiction to hear and determine all objections, actions, claims, disputes, questions, and proceedings arising under the Act in respect of a large number of miscellaneous matters relating to mining tenements, including title to and ownership of mining tenements, forfeiture of mining tenements, specific performance of contracts relating to mining tenements or mining, partnership agreements relating to mining tenements or mining and compensation under the Act. Section 97(1) provides that "in all matters within its jurisdiction the warden's court shall have power to make orders for a variety of matters including ... (d) the determination of objections to applications".

37. Under s. 102 the warden is given powers to deal with contempt in the face of the warden's court. Under s. 105 it is provided that the warden's court shall have power at any time to amend all defects and errors in any proceeding. Under s. 107 the warden may reserve any question of law for the opinion of the Supreme Court. Section 110 provides for an appeal to the Supreme Court from any "final judgment, determination, or decision of the warden's court".

38. This account of the previous provisions relating to prospectors' and special prospectors' licences, the 1958 amendments, and of the general provisions shows in my opinion that there has been a deliberate decision to change the nature of the warden's function in respect of special prospectors' licences and exploration licences and to bring the position of applications for such licences into line with applications for mining leases. In each case the present position is that the warden is to hear and determine objections against applications but the Minister or the Governor is to decide in his complete discretion whether or not a special prospector's licence or a mining lease should be granted. In each case there is provision for persons claiming interest in the relevant land to make objections against the application and it is then for the warden to hear and determine the objections. This division of function appears to me to put into the hands of We warden We ask of deciding whether or not the application is one which is capable of being granted, while leaving it to the Minister to decide as a matter of policy whether or not it should be granted and subject to what conditions. It is true that the legislative scheme is not spelled out in detail but no other view is consistent with the legislation as a whole. In respect of special prospector's licences, exploration licences, and mining leases the warden is given power to hear and determine objections by persons claiming an interest in the land, and in each case there are various requirements laid down in the legislation itself which an applicant must satisfy before he is entitled to a licence or lease. The most important of these prerequisites is that the land shall be unoccupied land" within the meaning of the Act, save that in the case of leases certain other kinds of land may be the subject of mining leases. Section 40(1) provides in the case of objections to the grant of mining leases that where at the hearing of any objection it appears that the objection materially affects a portion only of the land comprised in the application, a warden may uphold such objection as to such portion and may allow the applicant to amend his application by excluding therefrom the portion of the land so affected. Thus in the case of mining leases that example suggests that the kind of objections which are contemplated are those which affect in some way the land comprised in the application and that fits in with the basic requirement that the objections must be made by persons claiming some estate or interest in the land or any "right to or interest in the land". Obvious examples of this kind of situation are those where the objector claims that he holds some prior mining tenement in part of the land, or holds some other interest in the land which would take it out of the category of unoccupied land, or that the nature of the operations would affect land which he privately owns. Section 38 provides some examples of grounds of objection, the first of which does not necessarily affect any interest claimed by an objector. It provides that the Director may reject an application for a lease if it appears that the applicant has failed to comply with the requirements of the Act or that the land is already )eased under the Act or is the subject of a lease or otherwise occupied as a mining tenement. If there is an objection by a qualified person it will be for the warden to hear and determine those matters, but if there is no objection in the case of leases the Director must decide administratively but not conclusively. Likewise if there is no objection to an application for a special prospector's licence, the Minister must decide those matters administratively but not conclusively. I say not conclusively because the Minister has, for example, no power to grant a special prospector's licence except in respect of unoccupied land as defined and a person who fails to object but in fact had a freehold interest in such land would not be defeated by the grant by the Minister of a prospector's licence.

39. This statutory scheme therefore appears to me to involve the hearing by the warden of objections by persons claiming any estate or interest in the land, the objections being such that if upheld they would show that no power exists under the Act to grant such mining tenement. It is not an inappropriate course to commit the hearing and determination of such objections to the warden in view of the nature of the jurisdiction of the warden's court and of the warden, which already includes the determination of matters of title and other questions relating to property and legal rights generally. Without the context it might have seemed unlikely that the legislature would commit the determination of questions of whether land was unoccupied land or already the subject of an existing interest under the Act to the determination of a person not required by the Act to have some legal qualification. The extensive provisions with respect to the warden's court and its jurisdiction to determine matters of title and mining rights generally show that there is no such improbability. The legistlative policy appears to be dear and to commit to the warden's court, whether comprising the warden alone or a warden sitting with two assessors, a wide variety of matters relating to title to minerals and mining tenements, the determination of objections to the grant of such tenements, as well as the nature and extent thereof, and all disputes with respect thereto.

40. In my opinion the determination of objections of the kind to which I have referred is a judicial function and as such it is committed to the warden's court. The determination of an objection by upholding it is, upon this view, a determination of the question whether the applicant is a person qualified to obtain a special prospector's licence and whether the land in respect of which he has applied is land which is capable of being the subject of a special prospector's licence. A decision adverse to the applicant would in my opinion be a "final judgment, determination, or decision of the warden's court" within the meaning of s. 110. It is a decision inter partes which finally determines, subject to appeal, whether the application is one which is capable of acceptance. There is in my opinion no basis for saying that the warden's court, whether it comprised the warden alone or with assessors, in hearing and determining objections under s. 15c or s. 39 is not acting in a judicial capacity; the warden's functions under those sections are essentially judicial and in performing them he must act judicially. In such a context it is not necessary to refer to authorities to demonstrate that the warden in such a case is acting judicially.

41. There is in my opinion no doubt that his function is not to make recommendations or express non-binding comments. It is also clear that he is not concerned with any question of discretion or the general "merits" of the objection or of the application, but only with the legal bask of the application and the objections.

42. To take any other view is in my opinion to destroy the statutory scheme and to make proceedings before the warden on objections to the grant of special prospector's licences or mining leases a solemn farce with no significance whatever. This is, I think, so unlikely an intention to attribute to the legislature which has enacted that the warden shall "hear and determine" objections by persons claiming an interest in the land that one may properly look again to see whether there is not some function which the legislature has attributed to the warden or conferred upon the warden as part of the legislative scheme for dealing with applications for mining tenements. The amendment made by the repeal of the former provision and the substitution of the new s. 15A to s. 15c and the associated amendments of s. 15 and s. 16 show a clear legislative intent to take the function of recommendation out of the hands of the warden and to give it to the Director and to confer a quite different function upon the warden, namely that of determining objections. The division of function itself shows that the objections are to go not to matters of policy, but to matters of competence. It is by no means an unlikely intention to attribute to the legislature that it has committed questions of the validity or competence of the application to a judicial body already set up under the Mining Act. In my opinion this intention sufficiently appears even if it is somewhat cryptically expressed.

43. There remains an argument which was put to us that if the objectors neither had nor claimed any estate or interest in the land then the proceedings before the warden were simply a nullity and there would be no question of the final determination of anything. In my opinion this argument is misconceived in that I think it clear that one of the warden's functions is to determine, whether rightly or wrongly, the status of the objection, that is, whether the objectors are competent to object and the status of the application, as being one which falls within the terms of the Act and which it is competent for the Minister to accept if he decides as a matter of policy to do so. To speak of the determination of an objection which can only effectively be made by a stated class of persons necessarily involves the decision of the status of the objector, as well as the decision of whether in the light of the general provisions of the Act, the application is one which the Minister is authorized by the Act to grant.

44. In my opinion a decision by the warden upholding an objection as both competent as to the status of the objectors, and as well founded in that the application does not satisfy the requirements of the Act, determines the objection against the applicant and produces the result that, as between the applicant and the objectors, the application is one which does not fall within the Act and cannot be granted, both decisions being matters which are within the jurisdiction of the warden to decide in the process of hearing and determining the objection It is not to the point that the warden was mistaken as to the meaning of the expression "estate or interest in the land" or that he was mistaken as to the nature of the matters which he was to hear and determine or that he mistakenly thought he could "reject" the application or decide matters of policy. What he did was to entertain the objections and allow them. If he had been right in that, the application could not have gone forward at all. In the absence of appeal the applicant's rights to pursue its application would thus have been finally determined. It is not to the point to say that prerogative writs might in certain circumstances be available, because what the Act has done is to give a right of appeal to the Supreme Court, a right which would normally exclude some at least of the prerogative writs.

45. For those reasons I am of opinion that the appeal should be dismissed.

46. Appeal dismissed with costs.

47. Solicitors for the appellants, Murdoch, Clarke, Cosgrove and Drake.

48. Solicitors for the respondent, Simmons, Wolfhagan, Simmons and Walch.