Strother v Tavener

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.