Thompson v Siberia Mining Corporation Pty Ltd - [2021] WASCA 115

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THOMPSON -v- SIBERIA MINING CORPORATION PTY LTD [2021] WASCA 115
CORAM:   BUSS P
BEECH JA
VAUGHAN JA

HEARD:   6 MAY 2021
DELIVERED          :   2 JULY 2021
FILE NO/S:   CACV 76 of 2020
BETWEEN:   MICHAEL ALLAN THOMPSON
Appellant
AND
SIBERIA MINING CORPORATION PTY LTD
First Respondent
JOHN FRANCIS O'SULLIVAN
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   TOTTLE J
Citation: SIBERIA MINING CORPORATION PTY LTD -v- O'SULLIVAN [2020] WASC 214
File Number            :   CIV 2036 of 2019

Catchwords:

Mining - Mining Act 1978 (WA) - Expenditure conditions - Exemption from expenditure conditions pursuant to s 102 - Whether work done and money spent on a mining tenement subsequent to the expenditure year the subject of an application for exemption can constitute an 'other reason' for exemption for the purposes of s 102(3) - Whether the mandatory consideration in s 102(4) of work done and money spent on the mining tenement by the holder thereof is limited to work and expenditure up to and including the expenditure year - Whether an 'other reason' for exemption for the purposes of s 102(3) must be of a different character to the reasons for exemption contained in s 102(2)

Legislation:

Mining Act 1978 (WA), s 102(3), s 102(4)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	D R Chandler & C A McKenzie
First Respondent	:	T C Russell & L A Shave
Second Respondent	:	No appearance

Solicitors:

Appellant	:	McKenzie & McKenzie
First Respondent	:	Gilbert + Tobin
Second Respondent	:	No appearance

Case(s) referred to in decision(s):

Carnegie Gold Pty Ltd v Maughan [2018] WASC 366; (2018) 240 LGERA 114
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Haoma Mining NL v Tunza Holdings Pty Ltd [2006] WASCA 19; (2006) 31 WAR 270
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
MH Gold Pty Ltd v Phoenix Rise Ltd [2018] WAMW 13
Nova Resources NL v French (1995) 12 WAR 50
Siberia Mining Corporation Pty Ltd v O'Sullivan [2020] WASC 214
Siberia Mining Corporation Pty Ltd v Thompson [No 2] [2018] WAMW 19
Siberia Mining Corporation Pty Ltd v Wilson [2015] WASC 322

JUDGMENT OF THE COURT:

Introduction

The first respondent (Siberia) is the holder of mining leases 16/262, 16/263 and 16/264. In the expenditure year beginning on 12 March 2010 and ending on 11 March 2011 (the Expenditure Year) Siberia did not comply with the minimum expenditure conditions.[1] Siberia applied for an exemption from the expenditure conditions. The appellant, Mr Michael Thompson, objected to Siberia's exemption application.
[1] Mining Act 1978 (WA), s 82(1); Mining Regulations 1981 (WA), reg 31.
On 14 December 2018, the warden[2] recommended that the Minister for Mines and Petroleum (the Minister) refuse the exemption application.[3]
[2]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] WASCA 115
Decision Date

CaseChat Overview and Summary

In this appeal, the respondent, Thompson, challenges the decision of the primary judge in Siberia Mining Corporation Pty Ltd v O'Sullivan. The respondent argues that the primary judge erred in his interpretation of sections 102(3) and 102(4) of the Act. Siberia Mining Corporation Pty Ltd had sought judicial review of the warden's recommendation for a mining expenditure exemption. The primary judge accepted Siberia's contentions and quashed the warden's decision. The central issue on appeal was the proper construction of section 102 of the Act, particularly in relation to the mandatory consideration of work done and money spent after the expenditure year, and the nature of 'other reasons' for exemption under section 102(3). The appeal was dismissed, with the court upholding the primary judge's interpretation of the Act.

The court began by setting out the statutory framework, which includes the expenditure conditions for mining leases and the procedures for seeking exemption. The warden had recommended a partial exemption for Siberia, but the primary judge quashed this decision. The primary judge held that an 'other reason' for exemption under section 102(3) need not be of a different character to those in section 102(2), and that evidence of matters occurring after the expenditure year could be relevant. The primary judge also concluded that a reason for exemption does not need to justify the under-expenditure but merely the grant of an exemption. The respondent appealed these conclusions, arguing that work and money spent after the expenditure year could not be considered as an 'other reason' or a mandatory consideration, and that an 'other reason' must be of a different character to the reasons in section 102(2).

The court found that the primary judge's construction of section 102 of the Act was correct. The court rejected the respondent's argument that work and money spent after the expenditure year could not be considered as an 'other reason' or a mandatory consideration. The court held that the statutory language and purpose supported the primary judge's interpretation. The court also rejected the respondent's argument that an 'other reason' for exemption must be of a different character to the reasons in section 102(2), finding that such a limitation was not supported by the text, context, or purpose of the Act. The court concluded that the primary judge's decision was consistent with the statutory framework and purpose, and accordingly, the appeal was dismissed. The court's decision upheld the primary judge's quashing of the warden's recommendation and ordered the application to be reheard and determined according to law.

Orders

Orders of the court

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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

Siberia sought orders for judicial review of the warden's recommendation, contending that the warden erred in law in three respects. The primary judge accepted Siberia's contentions and quashed the warden's decision.[4] His Honour concluded that an 'other reason' pursuant to s 102(3) need not be of a different character to those in s 102(2). Further, while a reason for exemption must consist of matters that existed during the expenditure year, evidence of matters that occurred after the expenditure year may still be relevant. Indeed, by s 102(4), money spent and work done up to the time when the application is considered, including work done and money spent after the expenditure year, is a mandatory consideration. The judge also concluded that a reason for exemption need not justify the under‑expenditure (as opposed to justifying the grant of an exemption). Accordingly, the judge quashed the warden's decision and ordered that the application be reheard and determined according to law.[4] Siberia Mining Corporation Pty Ltd v O'Sullivan [2020] WASC 214 (primary reasons). Mr Thompson now appeals against the primary decision, contending that the primary judge erred in his construction of s 102(3) and s 102(4) of the Act. By ground 1, Mr Thompson contends that work done and money spent on a mining tenement subsequent to the expenditure year the subject of the exemption application cannot be determined to be (a) an 'other reason' for exemption and/or (b) a mandatory consideration when determining an application for exemption, and that the judge erred in holding to the contrary. Ground 2 contends that an 'other reason' for exemption under s 102(3) must be of a different character to the reasons set out in s 102(2). Thus, the issues on appeal are concerned entirely with the proper construction of s 102 of the Act. For the reasons that follow, we would dismiss the appeal. In summary, in our respectful opinion, the construction of the Act adopted by the primary judge was correct, for the reasons given by his Honour. The judge did not err in the manner alleged by ground 1(a). To the contrary, his Honour adopted the construction the appellant advances by ground 1(a). We do not accept the construction of s 102(4) and s 102(3) advanced by grounds 1(b) and 2 respectively. These grounds each advance a construction of the relevant provision of the Act that seeks to impose a limitation on the general words of the relevant provision, when such a limitation is not sustained by the text, context or purpose of the provision or of the Act as a whole. We will begin by outlining the statutory framework, before turning to the warden's decision and the decision of the primary judge. Section 82(1) of the Act provides that every mining lease shall be deemed to be granted subject to conditions set out in that section. Those conditions include that the holder must 'comply with the prescribed expenditure conditions applicable to such land unless partial or total exemption therefrom is granted in such manner as is prescribed': s 82(1)(c). Failure to comply with the expenditure condition may result in the forfeiture of the lease on an application for forfeiture made under s 98.