Telstar Resources Limited v Noranda Australia Limited

[1989] HCATrans 256

..

.

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pl9 of 1989

B e t w e e n -

TELSTAR RESOURCES LIMITED

Applicant

and

NORANDA AUSTRALIA LIMITED

First Respondent

D.J. REYNOLDS SM

Second Respondent

Application for special

leave to appeal

DEANE J
TOOHEY J

Telstar

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 25 OCTOBER 1989, AT 11.06 AM

Copyright in the High Court of Australia

PlT 4/ 1 /ND 1 25/10/89

MR M.J. HAWKINS:  May it please the Court, I appear for the

applicant. (instructed by Mccusker & Harmer)

MR A.N. SIOPIS: May it please the Court, I appear for the

first respondent. (instructed by Parker & Parker)

DEANE J:	Yes, Mr Hawkins.
MR HAWK INS:	May it please the Gour t , if I can provide

Your Honours with a list of authorities together

with copies of the authorities. Despite the

thickness of the bundle, I propose taking

Your Honours to one regulation only in any detail

and that is regulation 59.

Your Honours, this is an application for special

leave from a decision of the Full Court of the

Supreme Court of Western Australia.

DEANE J:  Have you any notes of argument that you - - -

MR HAWKINS: No, I do not, I am sorry, Your Honour. It is an application for special leave from a decision

of the Full Court of Western Australia in which
it discharged an order nisi and writ of certiorari
requiring the mining warden to show cause why he

should not deal with an application for a series

of prospecting licences according to the law.

The relevant provision is section 105 of the

Western Australian MINING ACT which requires that

an applicant for a prospecting licence to mark

out a mining tenement and it requires that an:

applicant shall mark out in the prescribed

manner and in the prescribed shape the land

in respect of which the mining tenement is

sought -

Regulation 59 contains the prescribed manner.

applicant made an application for 10 areas which What happened in this matter was that the

were all contiguous and there is a sketch which

appears at page 37 of the application book of the

areas. As Your Honours will see most areas have

at least one boundary in common with others, if

not more than one.

When the applicant marked out, where there

was a common boundary, it simply used one line

of pegs and one line of trenches to mark the boundary,

it did not duplicate marking out. And in marking

out it adopted trenches that pre-existed its marking

out. And the first respondent had, immediately

P1T4/2/ND	2	25/10/89
Telstar

before the applicant pegged the ground, itself

pegged the ground and in doing so dug trenches.

Regulation 59(a) requires that land be

marked out in the following manner:

(a) by fixing firmly in the ground at each corner or angle of the mining tenement, or

as near as practicable thereto, a substantial

post or cairn of stones projecting not less

than -

a certain height -

and set in the angle of two trenches -

of certain dimensions. And in paragraph (b):

by fixing firmly in the ground at intervals

not exceeding 300 metres along each of the

boundary lines of the mining tenement,

substantial pegs or cairns of stones -

once again, of certain stated dimension minimum -

set between 2 trenches not less than 1 metre
in length and 15 centimetres deep, cut in

the direction of the boundary line on which

it is so fixed -

The point is a short point and that is, whether the

person who makes the application is required to

cut the trenches or whether they simply determine

the location of the pegs. The matter was argued

in the warden's court and again in the Full Court

on the basis that section 105, together with

regulation 59, imposed an obligation on the

applicant to fix the pegs in the ground and stated

where the pegs were to be fixed but did not require

the applicant to excavate the trenches.

That submission did not find favour with either

the warden or His Honour Mr Justice Wallace but

to a limited extent it did with Their Honours Brinsden

and Pidgeon who held that as long as the trench

was not the subject of a live application then

there was nothing to preclude the applicant from

utilizing that pre-existing trench.

TOOHEY J:  Mr Hawkins, although you speak of common boundaries

of the various areas involved, does the problem

extend to boundaries whether common or not?

MR HAWKINS:  There were two aspects of the matter before

the Full Court. One was whether there had to be

a duplication of pegs down a common boundary as

well as trenches, in other words, a row of pegs

PlT4/3/ND	3	25/10/89
Telstar

for the tenement on the left and a row of pegs

for the tenement on the right, or whether the pegs

and trenches could have a duality of purpose marking

out both tenements simultaneously. That was one

aspect. The other aspect, whether or not a person

has to excavate trenches, applies to any tenement

whether or not it is immediately contiguous.

TOOHEY J:	Thank you.
MR HAWKINS:	At page 47 His Honour Mr Justice Brinsden referred

to section 105 and regulation 11. Regulation 11

simply imports into an application for a prospecting

licence the provision of regulation 59. And he

reasoned that the applicant must do so in strict

compliance with regulation 59 and said:

On that approach, the applicant must

therefore, do all the physical work necessary
to accomplish the marking out, and that would

involve putting in the trenches.

But with all due respect to His Honour, I submit

that there is nothing in regulation 59 that supports
that line of reasoning. There is nothing in

regulation 59 saying that the grant of a tenement

is a reward for physical labour or effort.

Regulation 59 simply gives dimensions of trenches,

locations of pegs, heights of pegs and says the

pegs shall be affixed firmly in the ground either in the angle or between two trenches, depending

on whether it is a corner or as side boundary.

Then His Honour went on to say:

He could not assume, as part of the marking

out, somebody else's trenches currently the

subject of an application by that other person.

He would not have done all the physical work

necessary to mark out the land.

He then referred to taking over by trenches of

Noranda's trenches. But:	It is true that Telstar, apparently, enlarged
the trenches by making them deeper, wider
and longer, but nevertheless those trenches
were still capable of being described as
Noranda's trenches, and within the spirit
of s 106, Telstar ought not to have
interfered with them.

But then His Honour goes on to add confusion, in

my respectful submission, to his reasons by saying

that, on the bottom of the page:

If the position had been that Noranda's

applications had been refused, with no

P1T4/4/ND	25/10/89
Telstar

appeal pending, it may have been in order
for Telstar to utilise these trenches as
they would then be capable of being

regarded as no longer Noranda's trenches and

merely abandoned trenches. I would not be

prepared to accept a construction of reg 59

which would deny to an applicant in marking

out, the use of abandoned trenches.

So there is confusion. He may be seen as having

said that the use of an abandoned trench is
permissible but if anythfng he has left it open

and so there needs to be certainty on that point.

TOOHEY J:  Why should not one read section 105 as imposing

an obligation upon the applicant to mark out and

the regulation 59 as merely prescribing the method

which is to be used so that when the two are read

together the applicant is required to mark out?

MR HAWKINS:  Your Honour, in section 105(1), the applicant

is required to marked out in a prescribed manner.

In my submission regulation 59 contains manner

as well as dimension.	The only manner is affixing
firmly in the ground.	The rest is purely dimension
or location.

TOOHEY J:	But what about the trenching obligation?
MR HAWKINS:	There is, in my submission, no trenching

obligation. There is an obligation to fix the

post between trenches but no obligation to dig

the trench.	The trench is merely an indication
of the direction of the boundary.	On that,

Your Honour, if I can refer you briefly to the two

decisions on the list of authority of HILL V

PARA WIRRA GOLD MINES NL and, on appeal, PARA WIRRA

GOLD MINES NL V HILL. They are decisions from

1934 of the Supreme Court and the Full Court of

the Supreme Court of South Australia.

At that time the regulation in the South

Australian MINING ACT, which is set out at

page 402 of the in Banco decision, read in part:

"The miner pegging out a claim . . . shall

securely place the ground posts to mark

approximately the corners of the land

intended to be included in the claim .

Each post shall be" (size prescribed)

" ..... and be fixed at the point of

intersection of two trenches" (of certain

dimensions) " ... and must be maintained

in position whilst the claim is held ...

or such claim will be liable to forfeiture."

PlT4/5/ND	5	25/10/89
Telstar

That case was one where a miner had been in

possession of a claim and mining it, he had put

up trenches and the pegs. His miner's right had

lapsed; he had not renewed it. The company,

Parra WirraF simply came along and put a

notice on the pegs. An endorsement was required.

The company did not put pegs in the ground and
did not dig trenches and it was held by the Supreme

Court of South Australia that the company had complied with regulation 59, although it is more

strongly worded than regulation 59 under the

Western Australian provision.

DEANE J:  But do you support that? Did you not say that

you accept the obligation to fix the angle marking?

MR HAWKINS:	In the warden's court and in the Full Court, the submission was on the lines that the manner was the affixing and that is the only thing the
applicant is required to do.  So I do not whole-
heartedly embrace the South Australian decision, of necessity, but, in my submission, it is a useful indication because one must question the reason
for pegging.

The MINING ACT is an Act for exploration and

mining; it is not one for pegging ground. One,

in my submission, must look at the object of the

pegging.

DEANE J:  But if you have to erect your own substantial post

cairn of stones, assume it is the latter, how

could you use the trenches applicable to another?

I mean, you would not be at the angle any more.

MR HAWKINS:  In that case, one would have to dig one's own

trenches but there is nothing wrong with that.

There is nothing in the regulations to say you

shall or you shall not use another's trenches or

you shall or shall not dig your own.

TOOHEY J: There is something in the Act, is there not?

You see, you focus at all times on regulation 59

which is the melthod that is to be employed but

what of section 105 itself which requires the

applicant to mark out?

MR HAWKINS:  It. requires it to mark out in a prescribed

manner and, Your Honour, this point was raised

in a peripheral fashion in an earlier decision of this Court that my learned friend refers to

of HUNTER V MELVILLE MINES where Their Honours

the Chief Justice and Justice Gaudron ignored the
regulation in construing the Act whereas the

remaining three members of the Court construed

section 105 and the regulation together.

PlT4/6/ND	6	25/10/89
Telstar

And, in my submission, all that section 105 does

is require that the land be marked out in the

prescribed manner.

TOOHEY J: That is not what it says. You have cast that

in the passive, it is expressed in the active.

MR HAWKINS:  The words "prescribed manner" beg the question,

"What is the prescribed manner?" One must look

at regulation 59 to see what is the prescribed

manner and that is to affix pegs between trenches.

Looking at the grammatical construction of

regulation 59, the only active thing required

of an applicant is to affix the pegs in a location.
The trench is to find the location.

. It may be of significance, Your Honours, that section 106 of the Act makes it an offence to

disturb pegs:

notice, survey peg, mark, post, cairn of

stones or pole used for the position of any

marking out or survey -

The words "trenches or row of stones" do not appear

in section 106. And, again, in regulation 71,

an applicant is required to:

maintain posts, pegs, trenches or other

sufficient boundary marks required by the

Act and these regulations.

So Parliament, both in the regulations and in the

Act, has, where Parliament thought fit, placed

a positive obligation on someone to maintain the

trenches or the rows of stones that are used in
lieu of trenches in regulation 71 but it has not
placed such importance on the trench or row of

stones as to make it an offence to disturb the

trench or row of stones in section 106. But none

the less the warden and Mr Justice Brinsden both

referred to the policy or spirit of section 106

as indicating somehow that the physical work of

marking out, including the trenches, must be done

by the applicant. And so, Your Honours, this

application raises as a serious question also the

interpretation of section 106.

I read to Your Honours earlier an extract from His Honour Mr Justice Brinsden's decision

at page 47 where he concluded that it is for the

applicant to:

do all the physical work necessary to

accomplish the marking out -

PlT4/7/ND	7	25/10/89
Telstar

That followed immediately after his analysis of

section 106 that appears at page 46, line C, where

he refers to the omission of trenches but did not
refer also to the omission of rows of stones in

lieu of trenches. He said that it seemed to be

a matter of:

Parliamentary inadvertence but the message

behinds 106 is clear:  a person is not

entitled without lawful authority to

interfere with the marking out of a mining

tenement by some other person.

That, Your Honours, also raises an important question that should be the subject of an appeal

in this matter and that is whether that is the

correct approach to a parliamentary consideration

or tonstruction of the statute, this appeal to a
mysterious spirit or policy that has not found

expression but none the less which has been used

as governing the interpretation of section 105

and regulation 59 with the conclusion that the

person must do the physical work.

In the South Australian decisions that I

referred you to before, Your Honours, at page 403

of the Full Court decision of PARA WIRRA GOLD MINES,

His Honour Mr Justice Piper, half-way down the

page, referred to the purpose and said:

Plainly the purpose of pegging with

inscribed pegs is to shew persons who, after

the pegging, come in sight of the corners
of the claim that the area is a claim, where

its boundaries are, the number of the owner's

miner's right, and the date of pegging. The

pegging and inscribing may actually be, and
probably often are, done in complete
secrecy, at any rate without any spectator
present; the effect of the pegs when the

pegging miner has completed the placing and

And at the bottom of the page:	inscribing of them is the important matter.
It appears to me that neither the Act nor
the regulations require us to interpret
reg 19 with such a strict literalness as would
lead to the use of idle and farcical forms
in pegging.  In reason and in justice I think
one who, being entitled to peg, and to place
pegs exactly where pegs already stand, has
set upon them the prescribed inscriptions
for public information has "placed in the ground" for the purposes of registration the
pegs he has so treated.

P1T4/8/ND	8	25/10/89
Telstar

With respect, Your Honours, my submission

is that it demonstrates t~e reason for the pegging.

Pegging is not so that one is given a reward

a tenement, pegging is so that there is a

delineation of boundaries. And Mr Justice Richards,

on appeal from the warden in that matter, at

page 264 of the South Australian State Reports,

referred to a decision of Mr Justice Windeyer in

DUNCAN V FULLERTON, ( 1893) 14 NSWLR 308, that the

object of pegging out is:

"To enable other persons to know with

certainty what land is available for them

to take up" -

It may be that there has been some erosion in those

principles by the words "affixing firmly" used

in regulation 59 but it still remains the fact

that the pegs and the trenches merely indicate

the boundaries so that other people know that the

land is the subject of either a claim or an

exploration licence or a miscellaneous licence.

The warden and the Full Court also had regard to section 105A in their interpretation of

regulation 59 and section 105. Section 105A provides

for priorities between applicants for certain

tenements and it provides that:

the applicant who first complies with the

initial requirement in relation to his

application has, subject to this Act, the

right in priority over every other applicant

to have granted to him in respect of that

land or part the mining tenement -

and/or a prospecting licence under subsection 2(b).

That means -

marks out the land or part concerned in the

prescribed manner.

Each of Their Honours in the Full Court and the

warden interpreted that as meaning that a person

had to do the physical work because of some notions

of unfairness, perhaps, or inequity. But

section 105A, itself, refers to "the prescribed

manner" so it begs the question to say that

section 105A shows that there is to be a reward

for physical endeavour.

TOOHEY J: Mr Hawkins, what is the proposition then, that

reading section 105 and regulation 59, I take it

it is said that there is an obligation on a person

who purports to mark out to comply with

paragraph (a), is that right?

P1T4/9/ND	25/10/89
Telstar
MR HAWKINS:	Yes.

TOOHEY J: And to comply with paragraph (b) to the extent

of fixing in the ground substantial pegs or cairns

of stones but that if a trench happens to be already

in the correct position then there is no obligation

to do anything further even though that trench

was put there by someone else?

MR HAWKINS:	That is correct.
TOOHEY J:	Or if it is not precisely in the correct position

then the trench can be adapted to the extent

necessary?

MR HAWKINS:  Yes.

TOOHEY J: That is the argument, is it?

MR HAWKINS:  That is the argument and that argument fits

with regulation 59(b)(i) which shows that if there

are certain pre-existing physical features then

the trench need not be excavated; similarly, pegs
need not be inserted if there are those pre-existing
physical features of some permanency, say for a

previously surveyed boundary which is, in my

submission, something that just adds certainty

to a boundary, not any added physical dimension

to a boundary.

The reason I make that - the rationale behind

that submission is that those things, such as a
fence or railway line or a road, indicate a boundary,
the direction of a boundary which is all that the

trench does as well.

I have provided Your Honours with some

statistics included in that bundle.

DEANE J:	I still do not quite follow how, if you have
different substantial mounds of stone or posts,
trenches complying with 59(a) could satisfy the
requirements of two?
MR HAWKINS:	I am sorry, which is the two that Your Honour

is referring to?

DEANE J: Satisfy the requirement of them both.

MR HAWKINS:	As to that
DEANE J:	They have got to be along the same line, though,
have they, before that can happen?
MR HAWKINS:	Yes, the trench has to be cut in the direction

of the boundary line on which the posts - - -

PlT4/10/ND	25/10/89
Telstar
DEANE J:	So it is a common boundary line?

MR HAWKINS:  Yes. So that if a person is to put a post

immediately adjacent to some other persons post but so that his intended boundary line ran at right angles, or at 45 degree angle, he woold :have to

dig new trenches.

DEANE J:	But you could only use his trenches if you were
having a complete overlapping of boundary lines
somewhere?
MR HAWKINS:	Yes.
DEANE J:	How would you tell whose trench applied to what?

MR HAWKINS:  One would not need to. As long as the post

was set between the trenches, that is all the

regulation requires.and the trench would have

fulfilled its purpose of indicating the direction.

Your Honours, I have provided you with a sheet

of statistics simply to indicate the extent of the problem with the uncertainty that has been

raised by the Full Court decision if allowed to

prevail. As Your Honours will be able to see there

are applications each year in the thousands made

covering millions of hectares in Western Australia

and at paragraph 3, remembering that a prospecting

licence has a maximum area of 200 hectares, to

be rectangular, there are approximately - there

would have been in 1986/1987, 176,000 pegs and

352,000 trenches required if the warden's

interpretation is to stand, that is, no common

pegging and no adaption of trenches.

In terms of value, paragraphs 4 and 5 show

the value of mining production and the expenditure

on mining each year. In terms of the importance

of this interpretation to the other States, I

have provided Your Honours with a bundle of

regulations.	In Queensland and the Northern
Territory the provisions are similar to the

Western Australian provision. Regulation 9 in

Queensland which is the first sheet - the bundle

of photocopies stapled together - requires that:

the intending applicant shall mark out the

area required by inserting firming in the

ground, at each angle thereof, a round post -

DEANE J:	I do not think you need take the Court to them in
detail as long as you can tell us.
MR HAWKINS:	In my submission, in Queensland, in regulation 9,

and in the Northern Territory, in regulation 130,

P 1T4/l l /ND	25/10/89
Telstar

they both require the applicant to fix the post,

require that the post or the boundary lines be

cleared but do not impose the obligation on the

applicant to either dig trenches or clear the

boundary line.

Contrast that with New South Wales, Victoria

and South Australia in which it is positively stated

that the applicant shall fix firmly a post in the

ground, for example in New South Wales, and the

applicant shall cut the trenches.

It would have been easy for Parliament in

Western Australia if that is wh~t Parliament intended

to be the practice in Western Australia that

regulation 59 be framed in that manner.

(Continued on page 13)

PlT4/12/ND	12	25/10/89
Telstar

MR HAWKINS (continuing): Lastly, Your Honours, there seems to

be implicit in the Full Court reasons,

sort of a notion of fairness or equities in

competing marking-out situations. Certainly that

lay behind the wardens interpretation where he,

on the one hand, at page 12, refers at line. B -

relied on section 105A as indicating that:

if more than one person wants to mark out

the same area then they should have an equal

opportunity from the start.

But on the other hand,at page 11 at line B,

recognized that the Full Court decision in

Western Australia of HAZLETT AND SOKLICH AND

RASMUSSEN provides that the warden cannot take

into account the equities of the application.

So the warden and His Honour Mr Justice Wallace

as well, have recognized that in pegging situation

there is no such things as fairness and equity, but

none the less, had they not gone on to decide it in

accordance with notions of fairness and equity of

equal opportunity, both having to do the same amount

of work and in so far as His Honour Mr Justice Brinsden

interpreted the section as requiring that the person do

the physical work,then that must also be .....

because of notions of fairness and equity. It cannot

be any other reason because the only physical work
referred to in the Act or the regulations is the
fixing of the place when marking out and then in

regulation 71, the maintaining of the trench after

marking out. If it please, Your Honours.

DEANE J:	This, on your argument, would allow the alteration of somebody else's trench, if necessary?
MR HAWKINS:	Yes, because there is nothing in section 106 to

make it an offence to either alter an existing trench

or a row of stones used in lieu of a trench.

DEANE J: Would it allow the obliteration of somebody else's

trench, because it got in the way of yours?

MR HAWKINS:  There is nothing in the Act that would preclude

that either.

DEANE J:  Good. Thank you.

MR SIOPIS: 

May it please Your Honours, the submission of

the first respondent is that this particular matter
is not at.tended with sufficient doubt to justify

special leave.  May I hand up to Your Honours a

copy of the first respondent's outline of submissions.

MR HAWKINS

PITS/1/CM	13	25/10/89
Telstar

DEANE J: What, on your approach, would be the correct

procedure in a case where there was a trench
covering the whole area which the trench you were

required to have would be if you placed your post

where you wanted it?

MR SIOPIS:  Your Honour, what the position would be is that

the applicant would be required to move his peg to

such a position so that it would enable him to

dig a trench. In other words, he is not allowed

to put posts right next to the existing posts.

DEANE J: That means that you cannot have a connnon boundary

in such a case?

MR SIOPIS: Cannot have a connnon boundary in such a case,

• that is correct. In such a case one is not able

then to comply with the marking-out regulation.

DEANE J: Well that is the practical disadvantage. The

practical advantage, I suppose,is that they are

your trenches and you have to look after them.

MR SIOPIS: That is,with respect, an obligation under the Act.

DEANE J: And you cannot do that if other people are entitled

to come and deal with them.

MR SIOPIS: Exactly, Your Honour. That is the whole proposition

which is - - -

TOOHEY J:	Mr Siopis, if the matter is one of construction, which
seems to be on both sides, what is the justification

for introducing the qualification that in a situation

in which there has been an application which has

been rejected, that it may be possible to use

existing trenches?

MR SIOPIS: Your Honour, I would reject that argument, with

respect. I think the regulations are· which have

to be applied in all kinds of situations, competitive

and noncompetitive situations.

TOOHEY J:  So you would take a stand on the warden and

Mr Justice Wallace's approach, would you?

MR SIOPIS: Yes, I would say that the regulations are quite

clear, that everybody must comply with the marking-

out regulations and the manner of marking out must

be certain so that it can apply in a situation

where there are three teams of peggers waiting for

the clock to strike midnight in the dark at Kal~oolie,

in a highly competative environment and in the midst

of the outback where there is no one there. And

the regulations make no distinction between the

three sets of peggers lined up for the stroke of

PITS/2/CM	14	25/10/89
Telstar

midnight in Kalgoolie and the one pegger all

by himself out in the outback. Now the approach

was adopted in the HUNTER RESOURCES case, which

was correct, with respect, was to say that these

regulations must be able to operate in every

environment and that was the approach ..

which Mr ·Justice Dawson took

in the case when he was · dealing with

a situation where there was in fact not a

competitive marking out before the court. What had

happened in the HUNTER RESOURCES case was that

there was merely a single applicant who had failed

to place his posts within the limit of 300 metres.

He was not being challenged by a competing application, yet His Honour, at page 252 of the judgment which

is reported in Commonwealth Law Reports, which appears

on page 33 of the appeal books, took into account

in interpreting the regulations the fact that it

should operate fairly in a competitive environment.

Between the letters Band C of that page,

His Honour said:

It is apparent from other decisions of the

warden that in some areas of Western Australia

there is fierce competition for mining
tenements. More than one application may be

received in respect of the same ground.	Under
s. 105A of the Act the applicant who first

marks out the land in the prescribed manner

has priority. The only practical course is

for the warden to deal first the application which on the face of it is the first in time.

If (assuming it to be possible notwithstanding

the wording of the regulation) substantial

compliance with the marking-out requirements

were sufficient, then an application which was

first in time because short cuts were taken

in marking out might achieve priority over an

application which was made later because of the

delay involved in complying strictly with the

requirement -

and that is the very point in this case. The

regulations cannot work properly if one has a

situation where one party is able to adopt the

work of the other party. Let us assume that you

have a piece of land becoming free at midnight and

there is one team of peggers who arise and starts

digging the trenches and putting in the pegs and

is about half-way through.	An hour later another
team of peggers arise ;	cbes not bother about doing

the laborious work which trenching is, but merely

drives around in the Tarago and knocks in a peg right

next to the existing pegs of the pre-existing team

and then overtakes him and finishes off the tenement.

One can imagine what kind of disputation that would

give rise to on the gold-fields themselves.

PIT5/3/CM	15	25/10/89
Telstar

It is just impossible for the section 105 to operate fairly if one was to allow one team to adopt another team:' s trenching.

TOOHEY J:  And yet, as this case stands, while the actual

decision was favourable to your client, the

qualification introduced in regard to trenches

no longer the subject of a pending application,

does introduce some uncertainty,I suppose, given

the difference of opinion between the members of

the court.

MR SIOPIS:  I would accept that, Your Honour, that there is

an element of uncertainty as a consequence of those

dicta, but - - -

TOOHEY J: At any rate, at least in a situation where there

are competing applications there is a clear decision

of the court that existing trenches cannot be used.

MR SIOPIS: Yes, that is right.

McHUGH J: Regulation 71 seems to support you to some extent

there, does it not? It provides that "the appliC8I1t for

trenches required ..... by t:i..1i.e Act in these regulations. 11 ..... a mining tenement shall maintain post, pegs,

MR SIOPIS: Yes, with respect Your Honour, that is correct.

It was the point which was made by ~he warden at

page 15 of the application book.

DEANE J:	On the applicant's theory you would both be under
an independent obligation to maintain the same
trenches.
MR SIOPIS:	Yes and the warden makes a valid point at page 15

opposite the letters D and E where he says:

Some interesting and complex questions arise.

In relation to regulation 71 -

Who has responsibility to maintain a trench?

If they both have to maintain a trench and only

one does, can the other be prosecuted? If the

other is prosecuted, is it a defence to the
prosecution that the other holder has

maintained the trench in any event? Prior to
any application being granted, can the

applicant who has regularly maintained the
trench object to the application by the other
on the basis that he has not maintained the

trench? If adopting marking out was allowed

disputation may well increase.

PIT5/4/CM	16	25/10/89
Telstar

Not only would it increase in the courts,

Your Honours, it would increase out in the gold~fields

as well. The argument that my friend has put forward

ignores the importance of the competitive situation.

DEANE J:	Mr Siopis, I do not think the Court need trouble
you any further.  Mr Hawkins, is there anything
you want to say in reply to what has been said
against you, by your opponent; not by the bench?
MR HAWKINS: You cut me short.	I was going to - - -
DEANE J:	Or by the bench to your opponent.

MR HAWKINS:  Yes. The aspect of regulation 71 proposed

by Mr Justice Brennan, which puts an onus on the

do something in relation to a trench. If

applicant to maintain trenches, shows that actually

Parliament intended the applicant to have to dig

or cut his own trench, Parliament would have said,
"'The applicant shall fix posts and trenches cut by
the applicant." But Parliament has not said that,

although in regulation 71 Parliament has required

the person to maintain the trench. In my submission,

that points up the fact or it assists the
interpretation that regulation 59 did not require

the applicant himself or itself to cut the trench.

On the other aspect of adopting someone else's

work, the requirement that an applicant "affix

firmly pegs"means that an applicant cannot simply
sit in the shade until the last peg is about to be

driven and then rush over and drive that last peg,

because he or it must peg .. It simply means that for

practical convenience, if there is a pre-existing

trench, the countryside need'riot. be littered

with pre-existing trenches and that also becomes

a problem of proving whether or not ground was

virgin ground in ~erms of the surface not being

disturbed by a trench.	From HUNTER RESOURCES, in
my submission, all that decision said was that in	so far as the regulation required an applicant to
do something, the applicant must do it. It did not
say what the applicant must do. And that is the
question that the applicant in this matter is
asking the High Court to determine. They are
the submissions.

DEANE J:  Thank you,Mr Hawkins. That Court is not persuaded

that the actual decision of the Full Court in the

present case is attended by sufficient doubt to
warrant the grant of special leave to appeal.

Special leave is accordingly refused.

PIT5/5/CM	17	25/10/89
Telstar

MR SIOPIS:  May I apply for an order that special leave

be refused and that the first respondent's costs

be paid by the applicant?

DEANE J:	Mr Hawkins?
MR HAWKINS:	Nothing to say, Your Honour.

DEANE J: Special leave is refused with costs.

AT 11.56 AM THE MATTER WAS ADJOURNED SINE DIE

PITS/6/CM	18	25/10/89
Telstar