Strother v Tavener
[2016] WASC 85
•17/03/16
STROTHER -v- TAVENER [2016] WASC 85
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 85 | |
| Case No: | CIV:2145/2014 | 30 MARCH 2015 | |
| Coram: | PRITCHARD J | 17/03/16 | |
| 39 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed in part | ||
| B | |||
| PDF Version |
| Parties: | GARY STROTHER WARDEN KEVIN MICHAEL TAVENER CENTRAL NORSEMAN GOLD CORPORATION PTY LTD TULLA RESOURCES GROUP PTY LTD EXP T1 LTD FARRER PLACE HOLDINGS PTY LTD DAVID STEINEPREIS PANGOLIN RESOURCES PTY LTD ALLAN WEBSDALE DAVID PASCOE |
Catchwords: | Judicial review Application for certiorari to quash decisions of mining warden Whether jurisdictional error One decision infected by jurisdictional error Whether erroneous decision severable Application allowed in part Statutory construction Mining Act 1978 (WA) s 98 Application for forfeiture of mining lease Mining Regulations 1981 (WA) reg 138(1)(c), reg 140(3) and reg 148(b)(i) Time to serve forfeiture application on lease holder and mortgagee Whether reg 148(b)(i) time limit applies Whether time limit runs from time application is lodged or time copy of application is returned to applicant by mining registrar for service on lease holder and mortgagee Held that reg 148(b)(i) applies Held that time limit runs from time application is lodged No jurisdictional error Judicial review Grounds of review Failure to consider mandatory relevant consideration Mining Regulations 1981 (WA) reg 152(1)(b) Where mining warden refused to extend time to serve forfeiture application on lease holder and mortgagee Whether prejudice to mortgagee from late service is mandatory relevant consideration Whether decision maker is obliged to give proper, genuine and realistic consideration Held that prejudice was not mandatory relevant consideration in every case Unnecessary to decide if proper, genuine and realistic consideration required Judicial review Jurisdictional error Mining Act 1978 (WA) s 102 Decision of mining warden to forward application for exemption certificates to Minister Where warden made no orders disposing of objections Mining Act 1978 (WA) s 102(5)(a) Warden failed to perform statutory function of hearing objections Warden committed jurisdictional error Certiorari issued |
Legislation: | Mining Act 1978 (WA) Mining Regulations 1981 (WA) |
Case References: | A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491 Ballantyne v WorkCover Authority of New South Wales [2007] NSWCA 239 Brosnan v Meridian Mining Ltd [2011] WASC 43 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282; (2014) 289 FLR 82 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 Hawks v Shadmar Pty Ltd [2004] WASC 252 Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 Klein v Domus Pty Ltd [1963] HCA 54; (1963) 109 CLR 467 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration v Li [2013] HCA 13; (2013) 249 CLR 332 Re His Worship Calder SM; Ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525 Re Narula, Ng and Hammersley; Ex parte Atanasoski [2003] WASCA 156 Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 Sean Investments v MacKellar (1981) 38 ALR 363 Sieffert v Prisoners Review Board [2011] WASCA 148 Strother v Central Norseman Gold [2014] WAMW 2 Strother v Central Norseman Gold Corporation [2014] WAMW 2B. The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
WARDEN KEVIN MICHAEL TAVENER
First Respondent
CENTRAL NORSEMAN GOLD CORPORATION PTY LTD
Second Respondent
TULLA RESOURCES GROUP PTY LTD
Third Respondent
EXP T1 LTD
Fourth Respondent
FARRER PLACE HOLDINGS PTY LTD
Fifth Respondent
DAVID STEINEPREIS
Sixth Respondent
PANGOLIN RESOURCES PTY LTD
Seventh Respondent
ALLAN WEBSDALE
Eighth Respondent
DAVID PASCOE
Ninth Respondent
Catchwords:
Judicial review - Application for certiorari to quash decisions of mining warden - Whether jurisdictional error - One decision infected by jurisdictional error - Whether erroneous decision severable - Application allowed in part
Statutory construction - Mining Act 1978 (WA) s 98 - Application for forfeiture of mining lease - Mining Regulations 1981 (WA) reg 138(1)(c), reg 140(3) and reg 148(b)(i) - Time to serve forfeiture application on lease holder and mortgagee - Whether reg 148(b)(i) time limit applies - Whether time limit runs from time application is lodged or time copy of application is returned to applicant by mining registrar for service on lease holder and mortgagee - Held that reg 148(b)(i) applies - Held that time limit runs from time application is lodged - No jurisdictional error
Judicial review - Grounds of review - Failure to consider mandatory relevant consideration - Mining Regulations 1981 (WA) reg 152(1)(b) - Where mining warden refused to extend time to serve forfeiture application on lease holder and mortgagee - Whether prejudice to mortgagee from late service is mandatory relevant consideration - Whether decision maker is obliged to give proper, genuine and realistic consideration - Held that prejudice was not mandatory relevant consideration in every case - Unnecessary to decide if proper, genuine and realistic consideration required
Judicial review - Jurisdictional error - Mining Act 1978 (WA) s 102 - Decision of mining warden to forward application for exemption certificates to Minister - Where warden made no orders disposing of objections - Mining Act 1978 (WA) s 102(5)(a) - Warden failed to perform statutory function of hearing objections - Warden committed jurisdictional error - Certiorari issued
Legislation:
Mining Act 1978 (WA)
Mining Regulations 1981 (WA)
Result:
Application allowed in part
Category: B
Representation:
Counsel:
Applicant : Mr A J Papamatheos
First Respondent : No appearance
Second Respondent : Mr M D Howard SC & Mr G S Greer
Third Respondent : Mr M D Howard SC & Mr G S Greer
Fourth Respondent : No appearance
Fifth Respondent : Mr M D Howard SC & Mr G S Greer
Sixth Respondent : No appearance
Seventh Respondent : Mr M D Howard SC & Mr G S Greer
Eighth Respondent : No appearance
Ninth Respondent : No appearance
Solicitors:
Applicant : Lawton Lawyers
First Respondent : No appearance
Second Respondent : Gilbert + Tobin Lawyers
Third Respondent : Gilbert + Tobin Lawyers
Fourth Respondent : No appearance
Fifth Respondent : Gilbert + Tobin Lawyers
Sixth Respondent : No appearance
Seventh Respondent : Gilbert + Tobin Lawyers
Eighth Respondent : No appearance
Ninth Respondent : No appearance
Cases referred to in judgment:
A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491
Ballantyne v WorkCover Authority of New South Wales [2007] NSWCA 239
Brosnan v Meridian Mining Ltd [2011] WASC 43
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282; (2014) 289 FLR 82
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Hawks v Shadmar Pty Ltd [2004] WASC 252
Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531
Klein v Domus Pty Ltd [1963] HCA 54; (1963) 109 CLR 467
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration v Li [2013] HCA 13; (2013) 249 CLR 332
Re His Worship Calder SM; Ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525
Re Narula, Ng and Hammersley; Ex parte Atanasoski [2003] WASCA 156
Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Sean Investments v MacKellar (1981) 38 ALR 363
Sieffert v Prisoners Review Board [2011] WASCA 148
Strother v Central Norseman Gold [2014] WAMW 2
Strother v Central Norseman Gold Corporation [2014] WAMW 2B.
The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
CNG goes into voluntary administration 7
The Exemption Applications 8
The Extension of Time Application 9
The Warden makes the decisions under review 9
The application for judicial review 10
2. Ground 1 fails: the Dismissal Decision was not infected by jurisdictional error 11
(a) The terms of ground 1 of the grounds of review 11
(b) The applicable statutory framework 11
Application for the forfeiture of a mining lease 12
The procedure for making a forfeiture application 12
(c) The Reasons for Decision of the learned Warden relevant to ground 1 of the grounds of review 14
(d) Why no jurisdictional error has been established 15
The nature of the alleged jurisdictional error 15
Mr Strother's contentions in relation to the construction of r 148(b) 16
The proper construction of r 148(b) 17
3. Ground 2 fails: the Extension of Time Decision was not infected by jurisdictional error 23
(a) The terms of ground 2 of the grounds of review 23
(b) The learned Warden's power to extend time 24
(c) Identifying relevant considerations 24
(d) The Reasons for Decision of the learned Warden to which ground 2 of the grounds of review pertains 25
(e) Why ground 2 fails 30
4. Ground 4 succeeds: the learned Warden made a jurisdictional error when he made the Referral Decision 34
(a) The Referral Decision 34
(b) The terms of ground 4 of the grounds of review 34
(c) The statutory power to refer an exemption application to the Minister for determination 35
(d) Why the Respondents' concession as to ground 4 was properly made 36
(e) Whether the Referral Decision can be severed from the remainder of the learned Warden's decisions 37
5. The relief which should be granted 38
1 PRITCHARD J: Mr Strother has applied for judicial review of four decisions made by the Mining Warden (the Warden), namely:
(a) a decision by the learned Warden refuse to grant Mr Strother an extension of time to serve applications for the forfeiture of certain mining leases (the Forfeiture Applications), and to serve objections (the Objections) to applications for certificates of exemption which applications had been made by Central Norseman Gold Corporation Pty Ltd (CNG) in respect of those mining leases (the Extension of Time Decision);
(b) a decision by the learned Warden to dismiss the Forfeiture Applications (the Dismissal Decision);
(c) a decision by the learned Warden to forward CNG's applications for exemption (the Exemption Applications) to the Minister for Mines (the Minister) for determination (the Referral Decision); and
(d) a subsequent decision by the learned Warden to refuse leave to permit Mr Strother to apply for an order that the Warden vary those earlier decisions (the Leave Decision).
2 By the time of the hearing of the application for judicial review, the grounds of review in respect of the Leave Decision had been abandoned by counsel for Mr Strother. No basis for the issue of a writ of certiorari was made out in respect of that decision.
3 For the reasons set out below, Mr Strother has failed to demonstrate that the learned Warden made a jurisdictional error in respect of the Extension of Time Decision or the Dismissal Decision.
4 At the hearing of the judicial review application, it was not disputed, and I accept, that the learned Warden made a jurisdictional error in respect of the Referral Decision. The only dispute was whether the Referral Decision was so closely interrelated with the other decisions that it was not possible to quash the Referral Decision alone. For the reasons set out below, I have reached the conclusion that the Referral Decision can be severed from the other decisions made by the learned Warden. Accordingly, the application for judicial review succeeds only to the extent that the Referral Decision should be quashed. It follows that the Exemption Applications should be referred back to the learned Warden for further determination according to law. (The Warden will also need to consider the Objections in respect of which no decision has yet been made.)
5 In these reasons for decision I deal with the following matters:
1. the factual background;
2. ground 1 fails: the Dismissal Decision was not infected by jurisdictional error;
3. ground 2 fails: the Extension of Time Decision was not infected by jurisdictional error;
4. ground 3 succeeds: the learned Warden made a jurisdictional error when he made the Referral Decision; and
5. the relief which should be granted.
1. The factual background
6 The factual background set out below is drawn from the learned Warden's reasons for decision (Reasons for Decision)1 supplemented where necessary from the affidavit evidence filed in the proceedings before the Warden (which was annexed to the affidavit filed in support of the application for judicial review). The facts are not contentious.
7 CNG is the registered holder of four mining leases (CNG Leases).2 Pangolin Resources Pty Ltd (Pangolin), Mr Websdale and Mr Pascoe (together, the Pangolin Leaseholders) are the registered holders of another mining lease (Pangolin Lease).3 Pangolin is a wholly owned subsidiary of CNG.
8 Tulla Resources Group Pty Ltd (Tulla), Farrer Place Holdings Pty Ltd (Farrer) and Mr Steinepreis each hold a mortgage over the CNG Leases and the Pangolin Lease. (Farrer acquired its interest as a mortgagee following a transfer of mortgage to it by EXP T1 Pty Ltd in February 2013.) I will refer to Tulla, Farrer and Mr Steinepreis collectively as the Mortgagees.
CNG goes into voluntary administration
9 In October 2012, CNG went into voluntary administration. Rather than exercise their rights as mortgagees to appoint a receiver and manager, Tulla and Farrer provided funding to prevent CNG being placed into liquidation. In February 2013, a deed of company arrangement (DOCA) was approved by CNG's creditors, pursuant to which Tulla and Farrer agreed to contribute to a fund for the purpose of distributions to CNG's creditors (in addition to the funding they had already provided to cover CNG's working capital requirements). The DOCA was executed in March 2013.
10 An amended DOCA was approved at a general meeting of CNG's creditors on 24 April 2013, and on 30 April 2013. That amended DOCA was executed and CNG came out of administration. By that stage, Tulla and Farrer had contributed just under $20 million to CNG.
The Exemption Applications
11 On 4 January 2013, the Exemption Applications (which were made in respect of the CNG Leases and the Pangolin Lease) were lodged with the Mining Registrar, on behalf of CNG, pursuant to the Mining Act 1978 (WA) (the Act).
12 Mr Strother opposed the Exemption Applications. He lodged the Objections with the Mining Registrar by delivering them to the Department of Mines and Petroleum (the Department) on 15 January 2013.
13 On the same day, Mr Strother lodged the Forfeiture Applications (in respect of the CNG Leases and the Pangolin Lease) with the Mining Registrar, again by delivering them to the Department.
14 Copies of the Objections and the Forfeiture Applications were not returned to Mr Strother until 10 April 2013. The reason for the delay in the return of those documents to Mr Strother is not clear.
15 On about 11 April 2013, CNG became aware that the Forfeiture Applications and the Objections had been lodged. CNG was served with the Forfeiture Applications and the Objections on 12 April 2013.
16 Service of the Forfeiture Applications on the Mortgagees (which is required by the Mining Regulations 1981 (WA) (the Regulations)) was overlooked at that point. That oversight appears to have been drawn to the attention of Mr Strother's solicitors by the solicitors for CNG on 16 May 2013. However, by that time, Mr Strother's solicitor was overseas, and upon his return his attention to the matter was delayed by illness. On 25 June 2013 he wrote to CNG's solicitors to enquire whether they had instructions to accept service on behalf of the Mortgagees, but was advised that they were not so instructed.
17 There appears to have been a further delay while Mr Strother's solicitors endeavoured to ascertain the location of EXP T1 Ltd (his solicitors having apparently not realised that its mortgage had been transferred to Farrer).
18 Mr Strother's solicitors then sought the Mortgagees' consent to an extension of time for the service of the Forfeiture Applications, but that consent was not forthcoming.
19 It appears that it was not until about 10 July 2013 that the Mortgagees were served with copies of the Forfeiture Applications and the Objections.
The Extension of Time Application
20 A dispute then arose as to whether Mr Strother had served the Forfeiture Applications and the Objections within the time specified under the Regulations. Consequently, Mr Strother made an application to the Warden for extensions of time to serve the Forfeiture Applications and the Objections on CNG and the Pangolin Leaseholders and to serve the Forfeiture Applications on the Mortgagees (the Extension of Time Application). That application was opposed by CNG, Pangolin, Tulla and Farrer.
The Warden makes the decisions under review
21 On 14 February 2014, the Warden made the Extension of Time Decision, in which he refused the Extension of Time Application. He also made the Dismissal Decision, by which he dismissed Mr Strother's Forfeiture Applications. The learned Warden did not make any decision in respect of the Objections. Finally, the Warden made the Referral Decision, in which he ordered that the Exemption Applications be referred to the Minister, without conducting any substantive hearing in respect of them. The learned Warden published reasons for decision explaining the reasoning behind those decisions.4
22 Mr Strother subsequently attempted to persuade the learned Warden to reopen his decisions of 14 February 2014. The history of, and procedural basis for, his attempt to do so (in so far as it can be discerned from the attachments to the affidavit filed in support of the application for judicial review) is far from clear. However, on 8 August 2014, the learned Warden made the Leave Decision in which he refused to grant leave to permit Mr Strother to file an informal application for an order that the Warden vary his decisions of 14 February 2014.5
The application for judicial review
23 In the present application, Mr Strother seeks judicial review of the decisions made by the learned Warden on 14 February 2014 and 8 August 2014.
24 In the grounds of review which were originally filed, Mr Strother advanced six grounds alleging that the decision of 14 February 2014 and the decision of 8 August 2014 were infected by jurisdictional error. However, by the date of the hearing of the application for judicial review, counsel for Mr Strother sought to pursue only three of the original grounds of review (grounds 1, 2 and 4), which pertained to the decisions of the learned Warden on 14 February 2014. He abandoned those grounds of review which pertained to the Leave Decision made on 8 August 2014. Instead, counsel for Mr Strother submitted that the Leave Decision was reliant upon the decisions made on 14 February 2014, so that if the latter were quashed, the Leave Decision should also be quashed.
25 In his application for judicial review, Mr Strother initially sought a writ of certiorari, a writ of mandamus, and a writ of prohibition. As counsel for Mr Strother made clear in the course of the hearing,6 however, the only relief ultimately sought was the grant of a writ of certiorari, the objective of the application being to quash each decision made on 14 February 2014, so that the learned Warden would be required to reconsider the Extension of Time Application, the Forfeiture Applications and the Exemption Applications according to law.
26 The Warden filed a notice of intention to abide by the decision of the Court. CNG, Pangolin, Tulla and Farrer (the Respondents) appeared and were represented by counsel. The remaining parties did not take part in the hearing.
27 The Respondents opposed the grant of prerogative relief in respect of the Extension of Time Decision and the Dismissal Decision. As I have already mentioned, the Respondents conceded that the learned Warden made a jurisdictional error in respect of the Referral Decision. The dispute between the parties in respect of the latter aspect of the learned Warden's decisions concerned whether only the Referral Decision, or the entirety of the learned Warden's decisions of 14 February 2014, should be quashed.
2. Ground 1 fails: the Dismissal Decision was not infected by jurisdictional error
28 In this section of my reasons I deal with the following matters:
(a) the terms of ground 1 of the grounds of review;
(b) the applicable statutory framework;
(c) the Reasons for Decision of the learned Warden relevant to ground 1 of the grounds of review; and
(d) why no jurisdictional error has been established.
(a) The terms of ground 1 of the grounds of review
29 Ground 1 of the grounds of review is in the following terms:
1. The learned Warden made a jurisdictional error or, alternatively, erred in law in his decision delivered 14th February 2014 in determining that service of the Applications for Forfeiture upon the tenement holders and the mortgagees had not been in accordance with the requirements of the Mining Regulations 1981 and in particular regs 140(3), 148(a) and 138(1)(c), such that the Warden had no power to summarily determine the Applications for Forfeiture under reg 139(1), which provision required the Warden to be satisfied that a party had not complied with a requirement of Part VIII of the Mining Regulations 1981.
30 Lengthy 'particulars' followed ground 1. The upshot of those was that on the proper construction of the relevant provisions of the Regulations, the service of the Forfeiture Applications was to occur upon the return of the Forfeiture Applications from the Mining Registrar, and that that is what had occurred in this case. Mr Strother contended that, on the proper construction of the Regulations, the Warden could not summarily determine the Forfeiture Applications unless he was satisfied that there had been a failure to comply with the requirements of the Regulations, and that the Warden could not be satisfied that that was the case here.
(b) The applicable statutory framework
31 I turn to consider the statutory framework for applications for the forfeiture of mining leases under the Act and the Regulations.
Application for the forfeiture of a mining lease
32 The Act operates on the premise that if a mining tenement is not used it may be lost.7 Mr Strother made the Forfeiture Applications pursuant to s 98 of the Act, which permits any person to make an application for the forfeiture of a mining lease on the ground that the leaseholder has not complied with the expenditure conditions applicable to that lease.
33 A forfeiture application is heard before a warden.8 Section 98 of the Act contemplates that the warden will hold a hearing and receive evidence on the application. As soon as possible after the hearing, the warden is required to forward to the Minister any notes of evidence at the hearing, together with a report and the warden's recommendations as to the determination of that application.9 If the warden finds that the lessee of a mining lease has failed to comply with the expenditure conditions applicable to the lease, the warden may recommend that the Minister declare the lease forfeited, or impose a penalty, or dismiss the forfeiture application.10 After receiving the recommendation of the warden, the Minister may, as he or she thinks fit, do any of these things.11
34 A warden who hears a forfeiture application does so in the exercise of administrative power conferred by the Act, rather than in the exercise of any judicial power. The Act draws a clear distinction between the exercise of administrative functions by a mining warden, and the exercise of judicial functions by the Warden's Court.12
The procedure for making a forfeiture application
35 The procedure to be followed in relation to forfeiture applications is set out in the Regulations. An application for forfeiture is taken to have been commenced when the application13 is 'lodged',14 that is, when the application is lodged at any mining registrar's office.15
36 Once the proceedings are commenced in this way, the mining registrar is required to fix a date and time for a mention hearing before the warden (being not less than 45 days from the date of lodgement). The mining registrar is also required to 'advise the parties' of the mention hearing date.16 The parties to the proceedings, at that stage, will be the applicant for forfeiture, and the tenement holder.17 In addition, r 138(1)(c) of the Regulations requires the mining registrar to cause copies of the application to be returned to the applicant 'for service' on each respondent, and on any mortgagee of a mining tenement to which the application relates. (I will refer to these documents as the Service Copies.)
37 Regulation 138(1)(c) thus contemplates that the applicant for forfeiture is required to serve the Service Copies. The obligation on the applicant for forfeiture to do so is found in r 140(3) of the Regulations. That regulation requires an applicant for forfeiture to serve 'copies of the forfeiture application returned after lodgement under regulation 138(1)(c)' (that is, the Service Copies).
38 Service of the application for forfeiture on the tenement holder triggers an obligation on that party (if the tenement holder wishes to dispute the application for forfeiture) to lodge a response within 14 days of service of the application.18 A mortgagee who wishes to be heard in respect of a forfeiture application may apply to be joined to the proceedings.19
39 Neither r 138(1)(c) nor r 140(3) specifies the time within which service of the Service Copies is to be effected on the tenement holder and any mortgagee. The argument in relation to ground 1 of the grounds of review focused on whether r 148 applied. Because of its significance to the argument at the heart of ground 1 it is appropriate to set out r 148 in full. That regulation provides:
If under this Part a party is required to serve a document -
(a) the party shall serve a copy of the document returned after lodgment; and
(b) unless these regulations provide otherwise or the warden otherwise directs, the party must serve the document -
(i) on each other party within 14 days after the document is lodged; and
(ii) by ordinary service in accordance with regulation 150AA.
(1) Except as provided in the Act, if a party does not comply with a requirement of this Part, a summons or an interlocutory order or direction of the warden, the warden may -
…
(b) determine the proceedings without a substantive hearing.
41 The learned Warden took the view that r 140(3) required service of the Service Copies of the Forfeiture Applications and that the timeframe for doing so was provided under r 148(b) of the Regulations.20 (He noted that there was no requirement to serve uncertified copies of applications for forfeiture on a respondent (that is, on a tenement holder) or to notify the respondent of the pending service.21)
42 The learned Warden proceeded on the basis that non-compliance with the requirements of r 148(b) to serve the Service Copies of the Forfeiture Applications within 14 days after lodgement permitted him to determine the Forfeiture Applications without a substantive hearing (pursuant to r 139(1)(b)) and to dismiss those applications. (I note for completeness that counsel for Mr Strother did not contend that it was not open to the learned Warden to do so, provided that there had been non-compliance, and in the absence of an extension of time to serve the Forfeiture Applications.)
43 Accordingly, the sole issue for determination in respect of ground 1 of the grounds of review concerns whether the learned Warden erred in his construction of the Regulations, which led him to the conclusion that Mr Strother was required, by r 148(b) of the Regulations, to serve the Service Copies within 14 days of the Forfeiture Applications being lodged with the Mining Registrar, and that Mr Strother had not done so.
(d) Why no jurisdictional error has been established
The nature of the alleged jurisdictional error
44 In an application for a writ of certiorari, the court may quash a decision made by a decision maker in the exercise of a statutory power if there is an error of law on the face of the record, or if it is established that the decision maker made a jurisdictional error.22 In the case of a decision made in the exercise of a statutory power, a jurisdictional error will exist if the decision which was made fell outside the parameters of the decision making power granted by the statute. An error of law in the construction of the statutory provision which is the source of the decision maker's power may give rise to a jurisdictional error if that construction causes the decision maker to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or to make an erroneous finding or to reach a mistaken conclusion.23
45 Mr Strother contends that the learned Warden erred in concluding that r 148(b) required him to serve the Service Copies within 14 days of lodgement of the Forfeiture Applications, and that that error then led to a jurisdictional error by the learned Warden when he proceeded to summarily dismiss the Forfeiture Applications under r 139(1)(b). The basis for that alleged error was that the learned Warden reached an erroneous conclusion, namely that there had been non-compliance with the requirement as to service. Accordingly, Mr Strother contended that the Dismissal Decision should be quashed. An alternative way of characterising the alleged error in the present case may have been that non-compliance with a requirement of pt VIII of the Regulations constituted a jurisdictional fact which conditioned the exercise of the power to dismiss the Forfeiture Applications summarily.24 However, it suffices to say that I am satisfied that if the learned Warden erred in his construction of the Regulations pertaining to service of the Service Copies, and in particular his construction of r 148(1)(b), then that would give rise to a jurisdictional error invalidating the Dismissal Decision.
46 I turn to consider whether the learned Warden erred in his construction of the Regulations.
Mr Strother's contentions in relation to the construction of r 148(b)
47 Counsel for Mr Strother submitted that on the proper construction of r 138(1), r 140(3) and r 148 of the Regulations, an applicant is only required to serve a forfeiture application on each tenement holder, and any mortgagee, once the application has been returned after lodgement with the mining registrar. In other words, the submission was that only the Service Copy of the forfeiture application needs to be served, and necessarily that can only be served once it is returned to the applicant for forfeiture by the mining registrar.
48 There were three planks to that argument.25 First, counsel for Mr Strother submitted that primacy had to be given to the text of r 138(1)(c) and r 140(3), which referred to the requirement to serve the forfeiture application 'returned after lodgement'. Secondly, r 148(b) applied only if the Regulations did not 'otherwise provide' and r 138(1)(c) and r 140(3) had made other provision (namely that an application for forfeiture had to be served after it was returned by the mining registrar). He submitted that the general position under r 148(b) had been displaced by the more specific provisions in r 138(1)(c) and r 140(3). Thirdly, he submitted that when consideration was given to the purpose of the requirement for notice after lodgement, as that purpose was discerned from the words used in the Regulations, that purpose was met by service of the Service Copies after their return. He submitted that the purpose of service was to ensure that a tenement holder was notified of the existence of the proceedings.
49 Counsel for Mr Strother also advanced an alternative construction argument, which he adopted in the course of hearing.26 That argument was that the requirements of r 148(1)(a) and (b) had to be read together, so that 'the document' referred to in r 148(b) was 'the document returned after lodgment' (as referred to in r 148(a)). As I understood the argument, it was that if r 148(b) applied, it had to be construed either on the basis that it only applied where a document was returned immediately after lodgement, or alternatively that it had to be construed on the basis that the words 'within 14 days after the document is lodged' meant 'within 14 days after the document is lodged and returned'.
The proper construction of r 148(b)
50 The principles governing the construction of a statute are well established. The task of statutory construction begins and ends with the words used, but those words must be considered in their context, which includes the legislative history, the general purpose and policy of the provision.27
51 When those principles are applied, in my view, the proper construction of r 148(b)(i), when considered in its statutory context, including r 139(1)(b) and (c), r 140(3), and r 148(a), and the purpose which can be discerned from pt VIII of the Regulations, is that r 148(b)(i) requires an applicant for forfeiture to serve Service Copies of the forfeiture application on the holder of the tenement in question and on any mortgagee, and to do so within 14 days of the lodgement of the forfeiture application itself.
52 I have reached that view in relation to the construction of r 148(b) for the following reasons.
53 First, the terms of r 140(3), r 148(a) and r 138(1)(c) leave no room for doubt that the document required to be served on the tenement holder and the mortgagee is a copy of the forfeiture application which is returned to the applicant by the mining registrar (that is, the Service Copy). Clearly, that document cannot be served until it is actually returned by the mining registrar. However, neither r 140(3), r 148(a) nor r 138(1)(c) prescribes the time within which that service is to take place. On the other hand, r 148(b)(i) is a provision of general application which is, on its face, intended to apply in those cases when no time for service is set out in the Regulations (or directed by the warden).
54 Secondly, I am unable to accept the submission by counsel for Mr Strother that r 138(1)(c) and r 140(3) 'provide otherwise' so that r 148(b)(i) does not apply. In order to determine if any other regulation 'provides otherwise' it is necessary to identify the subject matter of r 148(b)(i). Regulation 148(b)(i) clearly deals with the time for service of documents. Further, in my view, r 148(b) cannot be read in isolation from r 148(a). The 'document' referred to in r 148(b)(i) is the same document as is referred to in the opening words of r 148, and which is further described in r 148(a), namely a copy of the document returned after lodgement, that is, the Service Copy returned by the mining registrar. Accordingly, the subject matter of r 148(b)(i) is the time for service of Service Copies of documents. Neither r 138(1)(c) nor r 140(3) deals with that subject, so as to 'provide otherwise' than as required by r 148(b)(i) itself.
55 Thirdly, in my view, although the meaning of r 148 in its entirety is somewhat ambiguous, the meaning of the words used to describe the time frame for service in r 148(b) is tolerably clear. Leaving to one side for the moment a case where the regulations have 'provided otherwise', or the warden has otherwise directed, the party under the obligation to serve a document (that is, the document returned after lodgement, namely the Service Copy) must 'serve the document on each other party within 14 days after the document is lodged'. ('Lodge' means to lodge at any mining registrar's office.28) Service of the Service Copy of a document is thus required within 14 days after the document was lodged at the mining registrar's office.
56 I should add that although r 148(b)(i) requires the party to serve 'each other party', and a 'party' is defined in pt VIII to mean 'a party to proceedings',29 that definition is subject to any contrary intention. In my view, for the purposes of r 148(b)(i), a contrary meaning of the term 'party' is manifested by the requirement in r 140(3), and reflected in r 138(1)(c), to serve each respondent to the forfeiture application, and each mortgagee. Consequently, 'party' in r 148(b)(i) should, in my view, be construed to mean 'each other person on whom service is required'.
57 Fourthly, the result of the constructions of r 148(b)(i) advanced by counsel for Mr Strother would either be that the Regulations do not prescribe a time frame for the service of the Service Copies of a forfeiture application, or alternatively, that service of the Service Copies is required within 14 days of their return by the mining registrar, whenever that occurs. Having regard to the purpose of pt VIII of the Regulations, and of r 148 in particular (which I have outlined below), I am unable to accept that the preferable construction of the Regulations is that there is no prescribed time period for the service of Service Copies of a forfeiture application. And to construe the Regulations as requiring service of Service Copies of the forfeiture application within 14 days after their return by the mining registrar, requires reading words into r 138(1)(c) or r 140(3), or reading the word 'lodged' in r 148(b)(i) as meaning 'returned' or 'lodged and returned'. Neither construction is warranted by ordinary principles of statutory construction.
58 Fifthly, the construction I prefer is consistent with the underlying purpose of pt VIII of the Regulations, and of r 148, r 138(1)(c) and r 140(3) in particular. In my view, the underlying purpose of pt VIII is to ensure that interested parties are notified of forfeiture applications, and applications for exemption (to which there is an objection), and that such applications are dealt with expeditiously.
59 In so far as forfeiture applications are concerned, that purpose no doubt reflects the considerable significance - legal and financial - of forfeiture applications for the security of a mining tenement. The very existence of a forfeiture application constitutes a risk to the security of the tenement. Various provisions within pt VIII impose time frames which facilitate the expeditious determination of a forfeiture application: on lodgement of the application, the mining registrar must list the first mention hearing (which is to be not less than 45 days from the date of lodgement of the application unless the parties consent to an earlier hearing);30 any response to a forfeiture application must be lodged within 14 days of service;31 and the warden has a broad power to do anything that in his or her opinion 'will or may facilitate proceedings being conducted and concluded efficiently, economically and expeditiously'.32
60 For completeness, I note that an objection to an application for an exemption also gives rise to a risk to the security of the tenement, because without the grant of an exemption, a failure to comply with the expenditure requirements applicable to the tenement risks the forfeiture of the tenement. Again, various provisions within pt VIII impose time frames which facilitate the expeditious determination of an objection to an application for an exemption. Objections must be made within 35 days of lodgement of the application for exemption (or 21 days after service of notice of it);33 and the objection is to be served 'as soon as practicable after the objection is made.34
61 Against the backdrop of that broader purpose of pt VIII of the Regulations, the purpose of r 148(b), together with r 138(1)(c) and r 140(3), appears to be twofold. Service of the Service Copies of the forfeiture application meets the purpose of notifying the tenement holder and any mortgagee of the existence of the forfeiture application itself, and of the first mention date set by the mining registrar. (The prescribed form for a forfeiture application (Form 35A35) contains a section under the heading 'Official Use'. That section contains a 'Summons to Respondent' which indicates that the tenement holder will be required to attend a mention hearing before the warden if the tenement holder wishes to dispute the forfeiture application, and in that event, that the tenement holder must file a response in accordance with the prescribed form for doing so. Form 35A contains space for the hearing date and time to be inserted by the mining registrar.)
62 The importance of this notification requirement is underlined by the fact that the Regulations will operate to require that a tenement holder be notified more than once of the existence of a forfeiture application.36 That is because in addition to the requirement that the applicant for forfeiture serve the tenement holder (and any mortgagees), the mining registrar is under an obligation to notify the parties (including the tenement holder) of the mention hearing date for the forfeiture application.37 The result will be that a tenement holder will be advised twice (once by the mining registrar and once by the forfeiture applicant) of the date and time of the mention hearing and, necessarily, of the existence of the forfeiture application itself. That requirement may be explained on the basis that it serves to ensure that there can be no doubt that the tenement holder is aware of the application for forfeiture and of the mention hearing date. Counsel for Mr Strother accepted that that was the likely explanation.38
63 If parties with an interest in a tenement are not promptly advised of the fact that a forfeiture application has been made, the risk exists that they may make decisions (including financially significant decisions) which may impact on their interest in the tenement, without the benefit of knowledge of the risk posed to the security of the tenement by the forfeiture application. For that reason, in my view, the purpose of r 148(b) is also to ensure that service of the Service Copies of a forfeiture application (and thus notification of its existence) takes place within a relatively short period from the date of lodgement of the application itself. That prompt service also permits interested parties to decide whether they wish to participate in the proceedings, or (in the case of mortgagees) to seek to be joined in the forfeiture application proceedings.
64 Sixthly, it is implicit in r 148(b) that the Service Copies of a document will be returned following lodgement within sufficient time to enable service of the Service Copies within 14 days after lodgement. The construction of r 148(b) which I prefer would hold little attraction if, in a case where the Service Copies were not returned in sufficient time to meet that service time frame, there was no means by which an applicant for forfeiture could extend the time for service. However, r 152(1)(b) of the Regulations provides the means to do so. Regulation 152(1)(b) provides that:
a warden may, at any stage of proceedings, do all or any of the following for the purposes of controlling and managing the proceedings -
...
(b) extend the time for complying with any regulation in this Part or any order made by the warden (even if the time for complying has expired), or shorten it…
65 If for some reason there is a delay in the return of the Service Copies, so that it will not be possible to serve the Service Copies within the 14 day period, it is open to an applicant for forfeiture to make an application to the warden pursuant to r 152(1)(b) for an extension of time in which to serve the Service Copies. (A prudent applicant for forfeiture would no doubt make that application prior to the expiration of the 14 day period after lodgement, so as to minimise the prospect of arguments in relation to prejudice of the kind which faced Mr Strother in this case. So too, a prudent applicant for forfeiture might consider it wise to serve a copy of the forfeiture application within the 14-day period after lodgement, so as to put the tenement holder and any mortgagees on notice of the forfeiture application, in advance of service of the Service Copies.)
66 I note that counsel for Mr Strother submitted that r 148(b)(i) should not be construed in such a way as to meet the circumstances of an 'other than ordinary situation', namely (as here) when a mortgagee advanced further funds after lodgement of a forfeiture application and prior to its service.39 He submitted that the notification purpose behind the requirement for service 'should not be elevated to the point of overcoming those express requirements [of] service after the return of the documents from the mining registrar'.40 The construction I prefer does not seek to cater especially for the situation where the Service Copies are returned after some delay, but it acknowledges that r 152(1)(b) provides the means to avoid the difficulty that would otherwise arise in that situation.
67 Finally, for completeness, I should also deal with an argument as to the construction of r 148(b)(i) which was advanced by counsel for the Respondents. He submitted that r 148(a) and (b) imposed discrete requirements. That is, he submitted that when the Regulations require that a party serve a document, r 148(1)(a) requires that the party serve a copy of the document returned after service (that is, the Service Copy). In addition, he submitted that r 148(b)(i) requires the parties to serve any document on each other party within 14 days of its lodgment. He submitted that if the Service Copy were returned immediately upon lodgement, or very shortly thereafter, each of those requirements could be met by the service of the Service Copy of the document within 14 days of the lodgement of the document with the mining registrar. However, in a case where, as here, the Service Copy was not returned until well after 14 days after the lodgement of the document, he submitted it would be necessary for a copy of the document which was lodged to be served on each other party within 14 days, and once the Service Copy was returned, to serve that document also.41 In my view, this construction of r 148(b)(i) cannot be accepted because it fails to accommodate two matters. First, r 148 applies 'if under this Part a party is required to serve a document'. In other words, the requirement to serve a document must derive from some other provision in pt VIII. In the case of applications for forfeiture, the requirement to serve the application is, in fact, a requirement to serve the Service Copy of the application returned by the mining registrar.42 There is no requirement elsewhere in pt VIII to serve a copy of the forfeiture application (other than the Service Copy) after its lodgement. Secondly, as I have already mentioned, in my view the 'document' referred to in r 148(b)(i) is the same document referred to in r 148(1)(a), namely the Service Copy.
68 Accordingly, in my view, the learned Warden did not err in his conclusion that r 148(b)(i) applied in this case, and that in the absence of the grant of an extension of time to serve the Service Copies of the Forfeiture Applications, Mr Strother had not complied with that service requirement.
69 There is no basis, therefore, for concluding that the Dismissal Decision was infected by jurisdictional error. Ground 1 of the grounds of review should be dismissed.
3. Ground 2 fails: the Extension of Time Decision was not infected by jurisdictional error
70 In this section of my reasons, I deal with the following matters:
(a) the terms of ground 2 of the grounds of review;
(b) the learned Warden's power to extend time;
(c) identifying relevant considerations;
(d) the Reasons for Decision of the learned Warden to which ground 2 of the grounds of review pertain; and
(e) why ground 2 fails.
(a) The terms of ground 2 of the grounds of review
71 In advancing ground 2 in the alternative to ground 1, counsel for Mr Strother proceeded on the basis that this ground would only need to be considered if the Court held that r 148(b) applied to the service of the Forfeiture Applications, in which case it was necessary for Mr Strother to make the Extension of Time Application.
72 Ground 2 of the grounds of review is in the following terms:
2. Further and alternatively, the learned Warden made a jurisdictional error in his decision delivered on the 14th February 2014 in dismissing the Interlocutory Applications to extend time for service on the tenement holders and the mortgagees, in that he failed to take into account relevant considerations by not giving them proper, genuine and realistic consideration, being notice of the Applications for Forfeiture to the mortgagees and prejudice to the mortgagees.
73 Ground 2 was also followed by lengthy 'particulars'. The focus of those particulars was on the contention mentioned in the ground of review that the Mortgagees had notice of the Forfeiture Applications before the applications were served on them (on the basis that one of the directors of each of the Mortgagees was also a director of CNG). That aspect of the second ground of review was not pursued at the hearing.43
74 Instead, the focus of this ground of review was that the learned Warden failed to take into account a relevant consideration, namely prejudice to the Mortgagees which would flow from the grant of an extension of the time for service of the Forfeiture Applications and the Objections, on the basis that the learned Warden did not give that consideration proper, genuine and realistic consideration.
75 Although the focus of this second ground of review (and of the learned Warden's reasons) was on the Extension of Time Application as it applied to the service of the Service Copies of the Forfeiture Application, it was also intended to encompass a challenge to the Extension of Time Decision in so far as it pertained to the time for service of the Objections. (For completeness, I should mention that the Regulations do not expressly require the mining registrar to cause copies of an objection to be returned to the objector for that party to serve on the applicant for the exemption certificate, nor do the Regulations require the objector to serve a copy of the objection after it has been returned by the mining registrar. Instead, r 146(3) of the Regulations requires that the objector serve a copy of the objection on the applicant for the certificate of exemption 'as soon as practicable after the objection is made'.44 The obligation to serve the objection thus arises upon the lodgment of the objection. It was not contended that in this case the Objections were served 'as soon as practicable' as required.)
(b) The learned Warden's power to extend time
76 Mr Strother's application for an extension of time within which to serve the Service Copies of the Forfeiture Applications and the Objections was made pursuant to r 152(1)(b) of the Regulations. The terms of that Regulation are set out above at [64].
(c) Identifying relevant considerations
77 An administrative decision maker will make a jurisdictional error if, in reaching a decision, he or she fails to take into account a consideration which he or she was bound to take into account (a relevant consideration).45 The jurisdictional error arises because in giving the decision maker the power to make the decision, the statute required that the decision would be reached following a consideration of certain relevant considerations, and the decision maker failed to exercise his or her decision making power in that way.
78 A decision maker will not be bound to take a consideration into account unless the statute expressly so requires, or the requirement to take the consideration into account can be implied from the subject matter, scope and purpose of the statute.46 (Similarly, a decision maker will not be precluded from taking a particular matter into account, unless the statute expressly or by implication identifies that factor as an 'irrelevant consideration'.47) Further, it is always to be borne in mind that the two categories of 'relevant' and 'irrelevant' considerations do not constitute an exhaustive description of matters which may be considered by a decision maker. There will, in very many cases, be a category of legitimate factors, consideration of which is neither mandated nor precluded.48 If a decision-maker takes such matters into account, or if it does not take them into account, in making its decision, it will not, for that reason, fall into jurisdictional error.
79 There are divergent authorities in relation to the content of a requirement for a decision-maker to take into account relevant considerations when exercising a statutory power.49 One line of authority is to the effect that provided the relevant matter is given some consideration, the duty is discharged.50 The alternative line of authority, which has received some support in this State,51 is to the effect that the requirement to take into account a relevant consideration is a requirement to give proper, genuine and realistic consideration to the relevant matter.
80 In every case, the question whether the decision maker is bound to take into account a particular consideration, and the content of the obligation to do so, must be determined by a process of statutory construction. As I have already observed, the process of statutory construction requires consideration of the words used, within their statutory context.
(d) The Reasons for Decision of the learned Warden to which ground 2 of the grounds of review pertains
81 The learned Warden considered the Extension of Time Application which, as I have said, pertained to service of both the Forfeiture Applications and the Objections. In doing so, the learned Warden did not expressly discuss the time for the service of the Objections under the Regulations. However, while the learned Warden did not make an express finding to this effect in his reasons, he clearly did not doubt that service of the Objections had not been effected 'as soon as practicable'.
82 The learned Warden noted that reg 152(1)(b) contained a power to extend the time for compliance with any regulation in pt VIII of the Regulations.52 He noted that the power was discretionary, but had to be exercised for the purpose of controlling and managing the proceedings (that is, the relevant proceedings under pt VIII of the Regulations).53 By analogy with the test which applies to the exercise by a court of the discretion to extend the validity of a writ, the learned Warden held that in exercising the discretion under r 152(1)(b), he should take into account:54
the relevant circumstances and consider such factors as the justification for the delay, the prejudice suffered and the costs incurred as a result of the delay. Regard should also be given to the objectives of the [Act] and [the Regulations]. (footnotes omitted)
83 The learned Warden then proceeded to take into account six different considerations. Those considerations are summarised below. (Although the learned Warden's reasons focused almost exclusively on the application to extend the time for service of the Forfeiture Applications, it appears that he applied the same reasoning to the application in so far as it sought to extend time for the service of the Objections.) The considerations taken into account by the learned Warden were as follows.
84 First, the learned Warden had regard to the purpose of the time frame prescribed for the service of documents under the Regulations. He noted that while there was no requirement that an objection be served on a mortgagee,55 the requirement that the applicant for forfeiture serve any mortgagees, as well as the tenement holder, with a forfeiture application, was designed to provide mortgagees with notice of an application that might affect their rights and their security, so that they could make a fully informed decision as to whether, and how, to exercise their rights as mortgagees56 and whether to seek leave to appear in any proceedings.57
85 The learned Warden also noted that r 152(1)(b) provided a mechanism for remedying the situation (which arose here) when documents were not returned by the mining registrar within sufficient time to enable the applicant to serve the documents within the prescribed time after lodgement (under r 148(b)(i)). That remedy was by means of an application for an extension of time.58
86 Secondly, the learned Warden considered the length of the delay and Mr Strother's explanation for it. He noted that the Regulations required service of the Objections 'as soon as practicable', and service of the Forfeiture Applications within 14 days of the return of the Service Copies from the mining registrar.59 He noted Mr Strother's submission that the tenement holder was served two days after the return of the documents by the mining registrar.60 However, he also noted that Mr Strother had not taken any action to serve the Forfeiture Applications and Objections on CNG until 73 days after the end of the 14 day service period (applicable to forfeiture applications) and CNG was not actually served until 78 days after the expiry of that period.61 Further, Mr Strother took no action to attempt to serve the Forfeiture Applications on Tulla and Farrer until 25 June 2013, which was 148 days after they ought to have been served, and the documents were not in fact served until 10 July 2013, which was 163 days after they ought to have been served.62
87 In addition, the learned Warden observed that the obligation to serve the documents arose 'subsequent to lodgement' and that it 'would be a prudent practice for notice to be given, such as copies of the applications, when the process has been extenuated due to unforeseen difficulties'.63 The Warden further observed that advising the tenement holders and mortgagees in this case would have mitigated any potential prejudice by virtue of late service.64 The learned Warden noted that Mr Strother had not explained why he had not taken steps to notify CNG that the Forfeiture Applications and Objections had been lodged, but that there was a delay in the return of the Service Copies by the mining registrar.65
88 The learned Warden also considered Mr Strother's explanation for the delay in service, namely the initial period of delay in the return of the Service Copies by the mining registrar (during which time Mr Strother had attempted to contact the Department to obtain the Service Copies66); oversight by Mr Strother's solicitors (which the learned Warden observed did 'not support an extension of time'67); his solicitor's absence from the jurisdiction (which the learned Warden noted constituted 'intervening unforeseen circumstances' but nevertheless did not eliminate the obligation on Mr Strother to minimise potential prejudice to the respondents68); and his solicitors' attempts to contact the Mortgagees' solicitors and make searches of the mining register (the learned Warden considered that this should not have resulted in a further 10 days before service was effected,69 and noted that information about the identity of mortgagees for particular tenements could be obtained from the Department's records70).
89 Thirdly, the learned Warden took into account the potential prejudice to Mr Strother if the Extension of Time Application were refused. The learned Warden characterised the potential prejudice to Mr Strother, if the application was not granted, as being that that 'he loses his opportunity to gain the subject tenements if his application is successful and any costs he may have incurred in the proceedings.'71 He noted Mr Strother's submission that the prejudice to him would outweigh any prejudice which would be suffered by the tenement holders or the Mortgagees,72 and Mr Strother's submission that a factor to be weighed up was that he had an 'arguable case' and should not be deprived of the opportunity to present it.73 On the other hand, the learned Warden noted that Mr Strother had no interest in the Mining Leases, and if he wanted to exercise his rights to seek forfeiture of them it was incumbent on him to comply with the requirements of the legislation.74
90 Fourthly, the learned Warden considered the potential prejudice to the tenement holders if the Extension of Time Application were granted. He noted that the grant of an extension of time for the service of the Forfeiture Applications and the Objections might lead to the mining leases being forfeited, although he accepted that even without the Forfeiture Applications and Objections, the leaseholders remained vulnerable to the risk of forfeiture75 unless and until the Exemption Applications were granted.76 The learned Warden accepted that in those circumstances 'there seems to be little additional prejudice suffered by [CNG]' as a result of the delay in the service of the documents.77
91 Fifthly, the learned Warden considered the potential prejudice to the Mortgagees if the Extension of Time Application were granted. He noted that the risk to CNG's title arose on 15 January 2013 (when Mr Strother lodged the Forfeiture Applications, and the Objections) but that Tulla and Farrer were not made aware of that risk until 5 July 2013, and during the intervening period they advanced further funds in the belief that their security was not at risk.78
92 Mr Strother had submitted that Tulla and Farrer were substantially placed in that position due to the tardiness of the Department in returning the documents following lodgement;79 that there was 'no evidence that Tulla and Farrer would not have contributed money to CNG had they known' of the Forfeiture Applications and the Objections; and that the tenements 'were always at risk, as an application for exemption had not been determined … [and there was] no certainty the exemptions would have been granted'.80 The learned Warden clearly did not accept those submissions. He noted that without the benefit of notice of the Forfeiture Applications, the Mortgagees had provided funds to CNG's administrators for the purpose of the company's restructure. The learned Warden noted that those funds were provided 'during the period of time in which the documents should have been served'.81 He noted that the decision to contribute funds was not one which could be varied if the circumstances changed.82
93 The learned Warden characterised the prejudice suffered by Tulla and Farrer as 'the inability to make an informed decision'83 about whether to contribute funds to CNG. He noted that this was the 'main prejudice'84 arising from the Extension of Time Application.
94 The learned Warden also regarded the prejudice to the Mortgagees as including the fact that because the Exemption Applications had been made, the Objections meant that the Exemption Applications would be heard by the Warden (with the opportunity for the objector to make submissions) rather than proceeding straight to consideration by the Minister, effectively unopposed.85 The learned Warden took the view that if the Extension of Time Application were refused, the Objections and the Forfeiture Applications were 'non-compliant and [would] fall away.'86 For that reason, the learned Warden viewed the prejudice to the tenement holders, if the Extension of Time Application was granted, as being 'intertwined' with the prejudice to the tenement holders and the Mortgagees from exposure to an objection to CNG's Exemption Application.87
95 Finally, the learned Warden considered a submission by Mr Strother that the Mortgagees could be presumed to have had knowledge of the Forfeiture Applications and the Objections, prior to service. The submission appears to have been that the existence of the 'proceedings' (namely the Forfeiture Applications and the Objections) 'was on the public register from 15 January 2013';88 that a tenement search would have identified the proceedings; and that correspondence between the parties' lawyers suggested that the Respondents were aware of the proceedings in May 2013. The learned Warden did not accept that submission. He concluded that 'a presumed awareness does not satisfy the statutory requirements nor is there such an obligation on the mortgagees'.89 And in any event, the learned Warden noted that the alleged 'presumed awareness' arose after the Mortgagees had contributed funds to CNG's administration.90
96 Having taken all of these matters into account, the learned Warden concluded that the Extension of Time Application should be dismissed.91
(e) Why ground 2 fails
97 Counsel for Mr Strother submitted that in order to ascertain the considerations the Warden was bound to take into account it was necessary to consider the subject matter, scope and purpose of the legislation. He submitted that that subject matter included the statutory time limit which was to be extended, the persons to whom the statutory time limit pertained, and the related rights and protections available to those persons under the legislation when a forfeiture application has been made.
98 Counsel for Mr Strother submitted that one of the relevant considerations the Warden was required to take into account included the potential prejudice to the Mortgagees as a result of the late service of a forfeiture application. He submitted that the learned Warden had failed to give genuine and proper consideration to this consideration because he failed to take into account other provisions in the Regulations by which the potential prejudice to the Mortgagees could be minimised (if an extension of time to serve was granted). He submitted that the Warden should have considered 'other means by which the respondents and mortgagees could receive notice of the applications for forfeiture', including via the tenement holders or the Department's 'publicly available electronic database'.92 Secondly, he submitted that the Warden failed to consider that the Mortgagees could have applied to be joined as a party to the proceedings for the Forfeiture Applications under r 143 of the Regulations.93 Accordingly, Mr Strother submitted that the Mortgagees' ability to protect their interests, notwithstanding late service, was not lost if an extension of time was granted for service of the Service Copies of the Forfeiture Applications.94
99 In my view, Mr Strother failed to establish a jurisdictional error by the learned Warden, for three reasons.
100 First, I am not persuaded that prejudice to a mortgagee is a relevant consideration in every application made under r 152(1)(b) of the Regulations. The Regulations do not expressly identify any particular considerations which the warden is bound to take into account on an application under r 152(1)(b). Nor, in my view, can it be implied from the language used in r 152(1) that the prejudice to a mortgagee is a relevant consideration, which the Warden must take into account, in every application under r 152(1)(b). It cannot be said that the interest of a mortgagee will arise for consideration in each and every application made under r 152(1)(b). An application in respect of a tenement not subject to a mortgage is an obvious example.
101 The power granted to the Warden under r 152(1)(b) is a discretionary power expressed in the most general of terms. That is entirely unsurprising. The discretion is one which is able to be exercised in any of the 'proceedings'95 under pt VIII of the Regulations (namely applications for forfeiture, applications for exemptions in respect of which objections have been lodged, and proceedings when those matters are heard together). It is a discretion which is to be exercised for the purposes of controlling and managing the proceedings, and 'at any stage of [the] proceedings'.96 It is a discretion able to be exercised in respect of any time frame prescribed under any regulation in pt VIII or under any order made by the Warden. It is a discretion to extend time or shorten it. And it is a discretion which may be made before the requisite time frame has been reached, or after it has passed. None of these features of the provision suggest that any particular consideration, such as prejudice to a mortgagee, must be taken into account in every application under r 152(1)(b).
102 In my view, neither the subject matter, nor the scope nor the purpose of r 152(1)(b) warrants any different conclusion. An application under r 152(1) must be supported by an affidavit, which must be lodged and served on other parties to the relevant proceedings. The affidavit will set out the basis for the application in that particular case. The pertinent facts will, of course, vary from case to case. An application may be made under r 152(1)(b) in a proceeding in which no mortgagee is a party. Or such an application may be made in a case in which the variation of the requisite time for complying with a regulation or order will have no bearing on a mortgagee's interest in the tenement in question (for instance, if an extension of time were sought in respect of compliance with procedural directions made by the warden). In the face of the variety of circumstances in which an application under r 152(1)(b) may be made, the contention that prejudice to a mortgagee is a consideration which the warden is bound to take into account in every application under r 152(1)(b) cannot be accepted.
103 The general and largely unconstrained discretion given to a warden under r 152(1)(b) suggests that the discretion under r 152(1)(b) is one in which it is largely for the warden, in the light of the matters placed before him or her by the parties, to determine which matters are relevant to the application to vary time, and the comparative importance or weight to be accorded to those matters.97
104 For the avoidance of doubt, nothing in what I have said is intended to suggest that the prejudice to a mortgagee is an irrelevant consideration to an application under r 152(1)(b), that is, one which the warden must not take into account in any case. On the contrary, in an appropriate case (and this was clearly such a case) the nature of the application and its potential adverse impact on a mortgagee may mean that that potential prejudice is a consideration which the warden should take into account, and to which he or she should give such weight as is appropriate in the circumstances. And again, for the avoidance of doubt, the conclusion that the prejudice to a mortgagee is not a 'relevant consideration', which a warden must take into account in every application under r 152(1)(b), does not mean that no jurisdictional error could ever arise in a case where it was appropriate to take that consideration into account, and where a warden failed to do so. But if there were jurisdictional error in such a case, it is more likely to be that the decision reached was one which was irrational or wholly unreasonable.98
105 Secondly, even if the prejudice to the Mortgagees arising from late service of the Forfeiture Applications could properly be characterised as a 'relevant consideration' under r 152(1)(b), the learned Warden clearly took the potential prejudice to the Mortgagees into account in this case. The learned Warden's consideration of this factor is summarised at [91] - [94] above and it is not necessary to decide whether or not the requisite consideration was a 'proper, genuine and realistic consideration' because the learned Warden's consideration of the potential prejudice to the Mortgagees amounted to a proper, genuine and realistic consideration in any event. Consideration to that standard (if it is required) does not invite a detailed scrutiny of the decision maker's analysis with the aim of identifying some aspect of the consideration which was not fully or thoroughly canvassed. To engage in an analysis of that kind would constitute an exercise in merits review, rather than a review of the legality of the exercise of jurisdiction.
106 Thirdly, the complaint advanced under the auspices of ground 2 was, in effect, a complaint about the merits of the Extension of Time Decision. Implicit in that ground was the contention that if the learned Warden had taken into account all that he should have in relation to the question of prejudice to the Mortgagees, he would have reached the conclusion that the prejudice flowing from the late service of the Forfeiture Applications could have been ameliorated in other ways under the Regulations, with the result that an extension of time was warranted in all of the circumstances. That is a contention going to the merits of the Extension of Time Decision, rather than to the question of the Warden's jurisdiction to make it.
107 Ground 2 of the grounds of review should be dismissed.
4. Ground 4 succeeds: the learned Warden made a jurisdictional error when he made the Referral Decision
108 In this section of my reasons I deal with the following matters:
(a) the Referral Decision;
(b) the terms of ground 4 of the grounds of review;
(c) the statutory power to refer an exemption application to the Minister for determination;
(d) why the respondents' concession as to ground 4 was properly made; and
(e) whether the Referral Decision can be severed from the remainder of the learned Warden's decision.
(a) The Referral Decision
109 Having made the Extension of Time Decision, the learned Warden then proceeded to dismiss the Forfeiture Applications.99 Although he did not give discrete reasons for that decision, he apparently did so on the basis that because Mr Strother had not served the Forfeiture Applications within 14 days of lodgement, those applications should be determined without a substantive hearing, pursuant to r 139(1)(b) of the Regulations.
110 The learned Warden did not make a similar decision (or any decision) in respect of the Objections.
111 Instead, the learned Warden simply concluded that the Exemption Applications should be forwarded to the Minister for determination by the Minister in accordance with s 102(5)(b) of the Act.100 The learned Warden did not give discrete reasons for the Referral Decision.
(b) The terms of ground 4 of the grounds of review
112 Ground 4 of the grounds of review is in the following terms:
4. Further and alternatively, the learned Warden made a jurisdictional error (by identifying a wrong issue or asking the wrong question) or, alternatively, made an error of law on the face of the record, in his decision delivered on the 14th February 2014 in determining that he would forward various Exemption Applications to the Minister for determination by the Minister in accordance with section 102(5)(b) of the Mining Act 1978 when objections had been lodged in respect of the Exemption Applications and s 102(6) required the Warden to perform his role of hearing the Exemption Applications.
113 The particulars of that ground were as follows:
4.1 The Applicant caused Objections to Application for Exemption in respect to Mining Leases 63/180, 189, 190, 220 and 224 held by [CNG] and Mining Lease 63/204 held by [Pangolin, Webster and Pascoe] to be lodged with the Department of Mines and Petroleum in Perth on the 15th January 2013.
4.1A On a proper construction of reg 139(1) of the Mining Regulations 1981, a Warden has no power to forward objections lodged to applications for exemption to the Minister, as pursuant to s 102(5)(a) of the Mining Act 1978 the objection must be heard by the Warden once lodged.
(c) The statutory power to refer an exemption application to the Minister for determination
114 Under s 102(1) of the Act, the holder of a mining tenement may be granted a certificate of exemption totally or partially exempting the mining tenement from the prescribed expenditure conditions relating to it. The grant of a certificate of exemption relieves the holder of the mining tenement from the obligations under the prescribed expenditure conditions relating to that mining tenement, to the extent specified in the certificate.101 A certificate of exemption may be granted on an application made by the holder of the mining tenement or an authorised agent of the tenement holder.102 A certificate of exemption may be granted for any of the reasons set out in s 102(2) of the Act, or for any reason which in the opinion of the Minister is sufficient to justify an exemption.103
115 The Act contemplates that an objection may be made to an application for a certificate of exemption.104 If an objection to the application for a certificate of exemption is lodged, then the application is required to be heard by the Warden.105 In such a case, the Act contemplates that the Warden will hold a hearing, and will receive evidence on the application. After that hearing, the Warden is required to transmit to the Minister the notes of evidence and any maps and documents referred to, together with a report recommending the grant or refusal of the application and his reasons for that recommendation.106
116 Proceedings before the warden to determine the application for an exemption (to which an objection is made) are regarded as being 'commenced' when the objection is 'lodged', that is, when the objection is lodged at an office of the mining registrar.107
117 Under s 102(5)(b) of the Act, if no objection to the application to a certificate of exemption is lodged, the application for exemption is to be forwarded to the Minister for determination by the Minister.
(d) Why the Respondents' concession as to ground 4 was properly made
118 Counsel for Mr Strother noted108 that in the course of their submissions on the Extension of Time Application the Respondents had submitted that because the Objections had not been served 'as soon as practicable' after lodgement, as required by the Regulations, the Objections were non-compliant with the requirements of the Regulations, and the Objections should therefore be determined without a substantive hearing (pursuant to r 139(1)(b)), so that the Exemption Applications could be regarded as applications where no objection had been lodged. In my view, it cannot be assumed that the learned Warden made the Referral Decision by that process of reasoning, primarily because he did not actually proceed to summarily deal with the Objections or to make any order about the Objections at all. He simply referred the Exemption Applications to the Minister, without explanation.
119 The Respondents conceded that ground 4 was made out, on the basis that it was incumbent on the Warden to perform his function under s 102, and that he had failed to do so. It is clear that the learned Warden failed to turn his mind to whether the conditions for referral of the Exemption Applications to the Minister, without a hearing before the Warden, existed in this case. The Respondents' concession was thus properly made.
120 Accordingly, it is not necessary to deal with that part of ground 4 of the grounds of review which concerns the construction and operation of r 139, and its potential for interaction (if any) with s 102(5)(b) of the Act.
(e) Whether the Referral Decision can be severed from the remainder of the learned Warden's decisions
121 Counsel for Mr Strother submitted that the reasoning which led the learned Warden to determine that the Exemption Applications should be referred to the Minister was the same reasoning on which the learned Warden concluded that the Extension of Time Decision and the Dismissal Decision should be made, and that those decisions consequently could not be severed from the Referral Decision. He submitted that the Warden regarded the reasoning applicable to each decision as interrelated,109 and that this was apparent from the Warden's observation that:110
there is a difference between an application for exemption being considered by the minister, and an objection to an application for forfeiture, where a third party is given an opportunity to make submissions.
122 In addition, counsel for Mr Strother pointed to the Warden's observation that:111
[t]he determination of these matters cannot be separated into discrete events. The failure to inform the tenement holder and the mortgagees is a prejudice, the effect of which is intertwined. If the sought extensions of time are refused, the applications are non-compliant and fall away.
123 Counsel for Mr Strother submitted that because of the interdependency in the reasoning, the appropriate result was that the Extension of Time Decision, the Forfeiture Decision, and the Referral Decision, should be quashed, and that all of those decisions should be referred back to the learned Warden for further determination.112 I am unable to agree.
124 In a case where partial invalidity is established in judicial review proceedings, it is open to the court to quash only the invalid portion of the decision or order, provided that that portion is severable. The authorities establishing this principle were discussed in Director of Public Prosecutions (Cth) v Ede,113 to which counsel for Mr Strother referred. To determine whether the invalid portion of a decision is severable from the remainder, the question is whether:114
the impugned decision as a whole is [dependent] or conditioned upon the impugned element, or is one of several elements which are interrelated in that the flaw which affects the one, necessarily also affects the other or others … [If that is the case,] then the impugned element cannot be severed. Where however, they can stand apart and the flaw which affects one is confined to it, severance should be preferred.
125 In my view, the Referral Decision is entirely severable from the Extension of Time Decision and the Dismissal Decision. Each of those decisions represented a discrete exercise of particular power given to the Warden under the Act or Regulations. They were not co-dependent. Nor can it be said that this is a case where the flaw in the Referral Decision affects the other decisions. The statutory power underlying each decision was different and there was no common criterion for each of the decisions in question.
5. The relief which should be granted
126 The Referral Decision was infected by jurisdictional error and should be quashed. The result will be that the Exemption Applications must be further considered by the learned Warden, according to law (as should the Objections, as to which no decision has yet been made).
127 As I have already observed, counsel for Mr Strother submitted that the Leave Decision (made on 8 August 2014) was dependent upon the decisions made by the learned Warden on 14 February 2014 so that if the latter were quashed, the Leave Decision should also be quashed.115 That submission must be rejected for the following reasons.
128 First, the Leave Decision made by the learned Warden on 8 August 2014 was a decision to refuse to grant leave to Mr Strother to seek to re-open the decisions he made on 14 February 2014. The legal effect of that decision is effectively spent.
129 Secondly, the validity of the Leave Decision does not depend upon the validity of any of the decisions made on 14 February 2014 and no issue of severability arises as between the Referral Decision and the Leave Decision.
130 The utility of the relief which should be granted in respect of the Referral Decision (that is, the quashing of the Referral Decision) is not affected in any way by the Leave Decision.
131 In those circumstances, and given that no jurisdictional error has been demonstrated in respect of the Leave Decision, no relief should be granted in respect of it.
132 Counsel should confer in respect of a minute of orders to give effect to these reasons.
1Strother v Central Norseman Gold [2014] WAMW 2.
2 Leases M63/189, M63/190, M63/220 and M63/224.
3 Tenement M63/204.
4Strother v Central Norseman Gold[2014] WAMW 2.
5Strother v Central Norseman Gold Corporation[2014] WAMW 2B.
6 ts 55.
7 See, eg, Mining Act 1978 (WA) s 82, s 97 and s 98.
8Mining Act 1978 (WA) s 98(3).
9Mining Act 1978 (WA) s 98(6).
10Mining Act 1978 (WA) s 98(4A).
11Mining Act 1978 (WA) s 99(1).
12 See Brosnan v Meridian Mining Ltd [2011] WASC 43 [22] (Allanson J), citing Re His Worship Calder SM; Ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525 and Hawks v Shadmar Pty Ltd [2004] WASC 252.
13 The application is to be in the form of Form 35A prescribed in the Mining Regulations 1981 (WA): see Mining Regulations 1981 (WA) r 140(1).
14Mining Regulations 1981 (WA) r 137(2).
15Mining Regulations 1981 (WA) r 2.
16Mining Regulations 1981 (WA) r 138(1)(a) and (b).
17 Cf Mining Regulations 1981 (WA) r 137(1).
18Mining Regulations 1981 (WA) r 141.
19Mining Regulations 1981 (WA) r 143.
20Strother v Central Norseman Gold[2014] WAMW 2 [28] - [30].
21Strother v Central Norseman Gold[2014] WAMW 2 [30].
22Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [56].
23Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 (the Court).
24Kirk v Industrial Relations Commission (NSW)[2010] HCA 1; (2010) 239 CLR 531 [72] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ); see also The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority[2014] WASC 346 [139] - [194] (Edelman J); and see also Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611.
25 Applicant's Aide for hearing [10] - [12].
26 ts 25.
27Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell & Gageler JJ); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
28Mining Regulations 1981 (WA) r 2, see also r 137(2).
29Mining Regulations 1981 (WA) r 137(1).
30Mining Regulations 1981 (WA) r 138(1)(a).
31Mining Regulations 1981 (WA) r 141(1).
32Mining Regulations 1981 (WA) r 152(1)(l).
33Mining Regulations 1981 (WA) r 146(2).
34Mining Regulations 1981 (WA) r 146(3).
35 See Mining Regulations 1981 (WA) sch 1.
36 The same observation applies in relation to objections.
37Mining Regulations 1981 (WA) r 138(1)(b).
38 ts 27.
39 Applicant's Aide for hearing [13].
40 ts 34.
41 ts 57.
42Mining Regulations 1981 (WA) r 140(3), see also r 138(1)(c).
43 ts 61.
44Mining Regulations 1981 (WA) r 146(3).
45Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J); Sieffert v Prisoners Review Board[2011] WASCA 148 [192] (Martin CJ).
46Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 - 40 (Mason J); Sieffert v Prisoners Review Board[2011] WASCA 148 [192] (Martin CJ).
47Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 - 40 (Mason J); Sieffert v Prisoners Review Board[2011] WASCA 148 [192] (Martin CJ).
48Ballantyne v WorkCover Authority of New South Wales[2007] NSWCA 239 [113] (Basten JA).
49 Minister for Aboriginal Affairs v Peko-Wallsend Ltd[1986] HCA 40; (1986) 162 CLR 24, 39 (Mason J).
50Minister for Aboriginal Affairs v Peko-Wallsend Ltd[1986] HCA 40; (1986) 162 CLR 24, 40 - 41 (Mason J).
51Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182 [60] (McLure JA, LeMiere AJA agreeing), but cf A v Corruption and Crime Commissioner[2013] WASCA 288; (2013) 306 ALR 491 [88] - [92] where Martin CJ and Murphy JA concluded it was unnecessary to determine which line of authorities was to be preferred.
52Strother v Central Norseman Gold[2014] WAMW 2 [33].
53Strother v Central Norseman Gold[2014] WAMW 2 [37].
54Strother v Central Norseman Gold[2014] WAMW 2 [35].
55Strother v Central Norseman Gold[2014] WAMW 2 [62].
56Strother v Central Norseman Gold[2014] WAMW 2 [41].
57Strother v Central Norseman Gold[2014] WAMW 2 [57].
58Strother v Central Norseman Gold[2014] WAMW 2 [65].
59Strother v Central Norseman Gold[2014] WAMW 2 [42].
60Strother v Central Norseman Gold[2014] WAMW 2 [63].
61Strother v Central Norseman Gold[2014] WAMW 2 [43].
62Strother v Central Norseman Gold[2014] WAMW 2 [44].
63Strother v Central Norseman Gold[2014] WAMW 2 [46].
64Strother v Central Norseman Gold[2014] WAMW 2 [64].
65Strother v Central Norseman Gold[2014] WAMW 2 [47].
66Strother v Central Norseman Gold[2014] WAMW 2 [58].
67Strother v Central Norseman Gold[2014] WAMW 2 [50].
68Strother v Central Norseman Gold[2014] WAMW 2 [51].
69Strother v Central Norseman Gold[2014] WAMW 2 [52].
70Strother v Central Norseman Gold[2014] WAMW 2 [61].
71Strother v Central Norseman Gold[2014] WAMW 2 [70].
72Strother v Central Norseman Gold[2014] WAMW 2 [55].
73Strother v Central Norseman Gold[2014] WAMW 2 [55].
74Strother v Central Norseman Gold[2014] WAMW 2 [67].
75Strother v Central Norseman Gold[2014] WAMW 2 [38].
76Strother v Central Norseman Gold[2014] WAMW 2 [62].
77Strother v Central Norseman Gold[2014] WAMW 2 [53].
78Strother v Central Norseman Gold[2014] WAMW 2 [39].
79Strother v Central Norseman Gold[2014] WAMW 2 [60].
80Strother v Central Norseman Gold[2014] WAMW 2 [78].
81Strother v Central Norseman Gold[2014] WAMW 2 [66].
82Strother v Central Norseman Gold[2014] WAMW 2 [68].
83Strother v Central Norseman Gold[2014] WAMW 2 [68].
84Strother v Central Norseman Gold[2014] WAMW 2 [68].
85Strother v Central Norseman Gold[2014] WAMW 2 [69].
86Strother v Central Norseman Gold[2014] WAMW 2 [71].
87Strother v Central Norseman Gold[2014] WAMW 2 [71].
88Strother v Central Norseman Gold[2014] WAMW 2 [71].
89Strother v Central Norseman Gold[2014] WAMW 2 [79].
90Strother v Central Norseman Gold[2014] WAMW 2 [79].
91Strother v Central Norseman Gold[2014] WAMW 2 [68].
92Strother v Central Norseman Gold[2014] WAMW 2 [72].
93 Applicant's written outline of submissions dated 23 December 2014 [69].
94 Applicant's Aide for hearing [18].
95 Applicant's written outline of submissions dated 23 December 2014 [70] - [72].
96 As defined in Mining Regulations1981 (WA) r 137(1).
97Mining Regulations 1981 (WA) r 152(1).
98 Cf Minister for Immigration v Li [2013] HCA 13; (2013) 249 CLR 332 [23] (French CJ, referring to Klein v Domus Pty Ltd [1963] HCA 54; (1963) 109 CLR 467, 473 (Dixon CJ, McTiernan, Windeyer JJ agreeing); Minister for Aboriginal Affairs v Peko-Wallsend Ltd[1986] HCA 40; (1986) 162 CLR 24, 39 (Mason J), referring to Sean Investments v MacKellar(1981) 38 ALR 363, 375 (Deane J).
99 Cf Minister for Immigration v Li [2013] HCA 13; (2013) 249 CLR 332.
100Strother v Central Norseman Gold[2014] WAMW 2 [73].
101Strother v Central Norseman Gold[2014] WAMW 2 [74].
102Mining Act 1978 (WA) s 103.
103Mining Act 1978 (WA) s 102(1).
104Mining Act 1978 (WA) s 102(3); see also s 102(7).
105Mining Act 1978 (WA) s 102(5)(a).
106Mining Act 1978 (WA) s 102(5)(a).
107Mining Act 1978 (WA) s 102(6).
108Mining Regulations 1981 (WA) r 137(2)(b).
109 ts 35.
110 Applicant's Aide for hearing [6].
111Strother v Central Norseman Gold[2014] WAMW 2 [69].
112Strother v Central Norseman Gold[2014] WAMW 2 [71].
113 ts 8.
114Director of Public Prosecutions (Cth) v Ede[2014] NSWCA 282; (2014) 289 FLR 82 [40] ff (Gleeson JA, Basten JA and Tobias AJA agreeing).
115Re Narula, Ng and Hammersley; Ex parte Atanasoski[2003] WASCA 156 [48] - [50] (Roberts-Smith J, Murray J and Barker J agreeing).
116 ts 55.
7
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