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… |
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- Strother v Tavener [2016] WASC 85
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- [2016] WASC 85
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CaseChat Overview and Summary
In the case of Strother v Tavener, the applicants sought judicial review of decisions made by the mining warden in relation to a mining lease forfeiture application. The applicants argued that certain decisions were tainted by jurisdictional errors and that the warden had failed to consider relevant considerations. The court was required to determine whether there had been jurisdictional errors and, if so, whether the errors were severable. The court also needed to interpret the Mining Regulations 1981 (WA) to determine the applicability of certain time limits in the context of the application for exemption certificates.
The court held that the Mining Regulations 1981 (WA) reg 148(b)(i) applied, and the time limit for serving the forfeiture application on the lease holder and mortgagee began to run from the time the application was lodged. The court found no jurisdictional error in this regard. However, the court identified a jurisdictional error in the warden's decision to forward the application for exemption certificates to the Minister without first hearing the objections. The warden's failure to perform the statutory function of hearing the objections constituted a jurisdictional error under the Mining Act 1978 (WA) s 102(5)(a). The court concluded that the error was not severable from the rest of the decision, and therefore, the entire decision was quashed.
The court allowed the application in part, issuing certiorari to quash the warden's decision to forward the application for exemption certificates to the Minister without first hearing the objections. The court did not find it necessary to decide whether the warden was obliged to give proper, genuine, and realistic consideration to the prejudice to the mortgagee from late service, as the jurisdictional error was sufficient to warrant the quashing of the decision.
The court held that the Mining Regulations 1981 (WA) reg 148(b)(i) applied, and the time limit for serving the forfeiture application on the lease holder and mortgagee began to run from the time the application was lodged. The court found no jurisdictional error in this regard. However, the court identified a jurisdictional error in the warden's decision to forward the application for exemption certificates to the Minister without first hearing the objections. The warden's failure to perform the statutory function of hearing the objections constituted a jurisdictional error under the Mining Act 1978 (WA) s 102(5)(a). The court concluded that the error was not severable from the rest of the decision, and therefore, the entire decision was quashed.
The court allowed the application in part, issuing certiorari to quash the warden's decision to forward the application for exemption certificates to the Minister without first hearing the objections. The court did not find it necessary to decide whether the warden was obliged to give proper, genuine, and realistic consideration to the prejudice to the mortgagee from late service, as the jurisdictional error was sufficient to warrant the quashing of the decision.
Orders
Orders of the court
Application allowed in part
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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