Wade v Burns

[1966] HCA 35

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Taylor, Menzies and Owen JJ.

WADE v. BURNS

(1966) 115 CLR 537

20 May 1966

Mines and Minerals (N.S.W.)—Prerogative Writs

Mines and Minerals (N.S.W.)—Mining on private lands for minerals privately owned—Authority to enter—Powers of warden—Previous agreement giving rights to work land—Refusal of application by warden—Whether mandamus lies—Errors in construction of statute—Mining Act, 1906-1963 (N.S.W.), ss. 46 (3), 50 (2) (a), 70A (2). Prerogative Writs—Mandamus—To compel performance of duties by administrative authority—Error by administrative authority in construction of statute conferring authority—Power of mining warden to refuse authority to enter on private lands to search for minerals privately owned—Mining Act, 1906-1963 (N.S.W.), ss. 46 (3), 50 (2) (a).

Decisions

May 20.
The following written judgments were delivered: -
BARWICK C.J. The respondent Burns (the warden) is a mining warden appointed under and for the purposes of the administration of the Mining Act, 1906-1963, of the State of New South Wales (the Act): s. 6. The appellant is an applicant for an authority to enter private lands to search for zircon, rutile and ilmenite, substances which have been declared to be minerals for the purposes of the Act. The respondents Frederick Charles Hughes, Peter James Prichard, Jessie Hughes, Hector James Robertson and Ena Frances Robertson (the owners) were at all relevant times the owners and occupiers of the lands the subject of the appellant's application for authority to enter (the said land). The title to the said land did not reserve to the Crown rutile, zircon or ilmenite. Though minerals within the meaning of the Act, they are therefore privately owned minerals for its purposes. The respondent New South Wales Rutile Mining Co. Ltd. (the company) is a company which, after the lodging of the appellant's application, entered into an agreement with the owners under which they granted to the company, "subject to the provisions of the Act", the exclusive right and authority to enter upon the said land and to carry on mining operations thereon for a term of years for the purpose of winning rutile, zircon and other privately owned minerals. At the date of the hearing by the warden of the appellant's application, the company was in fact carrying on mining operations for such minerals upon the land. Some four years before the appellant lodged his application for authority to enter, an agreement had been made between the owners and the appellant and another by which the appellant and that other had been granted an exclusive right of entry and of mining the said lands for a period of five years for the said minerals. The appellant and his co-contractor had carried on such operations for about one year until the price of rutile made the operations uneconomic. Such operations were not thereafter resumed but, although the agreement was thus in default, the owners did not actually terminate it. It was common ground between the parties before this Court that at the date of the lodgment of the appellant's application for authority to enter, the said agreement was still on foot and that the other contractor was still entitled to the benefit of it. (at p547)

2. The warden refused the appellant's application upon two grounds expressly stated by him:
(1) That he was compelled to refuse the application because, as he said, a person other than the applicant, namely, his co-contractor under the said agreement with the owners, was entitled at the time of the lodgment of the application to search or prospect for minerals upon the said land, and, in that case, s. 46 (3) of the Act, which he said applied to the matter, denied him the right to grant the application.
(2) That, by dint of s.50 (2) of the Act, which he held applicable to the matter, he had a discretion to refuse the application if the said land was subject to a holding under Pt IV of the Act, and that the unexpired agreement with the owners was such a holding. (at p547)

3. The Supreme Court has rejected the appellant's application for a writ of mandamus to compel the warden to consider the appellant's application according to law. From that rejection, this appeal is brought. (at p547)

4. Prior to 1918, authority to enter private lands to search for private minerals could not be granted under the Mining Act. The basic reason for this was the terms of s. 46 of the Act which extended only to gold and silver where reserved to the Crown (s. 46 (1)) and all minerals where they were reserved to the Crown (s. 46 (2)). The Act contains a definition of minerals which consists of a list of named substances "and any other substance declared a 'mineral' within the meaning of this Act by proclamation of the Governor published in the Gazette" (s. 3). By this means the list in the section has been greatly increased by proclamations made from time to time. "Minerals" within the meaning of the Act clearly extend beyond "minerals reserved to the Crown". Those not so reserved are spoken of as "privately owned minerals": see, for example, s. 70 (12) (a). (at p548)

5. When it was desired in 1918 to enable the grant of authorities to enter private lands to search for private minerals, the course was taken, not of amending s. 46, but of introducing into that Part of the Act which contains s. 46, Pt IV, a new division, Div. 4A, comprising five sections, with the somewhat incorrect heading "mining on private land held without reservation of minerals". This method of achieving the legislative purpose has provided the basis for the questions which have emerged in connexion with the application for mandamus. The questions are, first, does s. 46 (3) apply to an application for authority to enter private lands to search for private minerals? If so, does the Act upon its proper construction commit to the warden the final decision of the question whether at the time of the making of that application a person other than the applicant was entitled under Pt IV of the Act to search or prospect for gold or any mineral within the meaning of the sub-section? - that being the relevant inquiry in this case for the purpose of applying s. 46 (3). Thirdly, if it does not, was there in fact any such person so entitled at that time? (at p548)

6. If these questions are answered favourably to the respondent, there is an end to the appeal for in that event the warden was bound to refuse its application. But if they are answered favourably to the appellant, there remains a further comparable series of questions, namely: Fourthly, does the discretion given by s. 50 (2) apply to such an application?
Fifthly, if it does, does the Act upon its proper construction commit to the warden the final decision of the question whether the land to which the application refers is subject to a holding under Pt IV of the Act? Sixthly, if it does not, was such land in fact subject to such a holding? and
Seventhly, if it was not, does mandamus lie to the warden to require him to deal according to law with the application for authority to enter? (at p548)

7. At the outset, it is necessary to decide how much, if any, of the other divisions of Pt IV are attracted by Div. 4A to an application for authority to enter private lands in search of private minerals. I shall for brevity of expression refer to such an application somewhat elliptically as a "private minerals application" and the authority as a "private minerals authority". (at p548)

8. It seems to me that Div. 4A is intended exclusively to provide for the grant, and the consequence of the grant, of such applications. It is not merely segregated in a formal way from Div. 2 of Pt IV but, as I shall mention later, it purports to make provision for the manner of obtaining a private minerals authority and for the consequences of its grant. No doubt by treating that division for all that it expresses and all it includes by reference as the exclusive source both of authority to grant and of the consequence of the grant of a private minerals authority a certain lack of symmetry appears in the Act and the possibility emerges that some matters which might be thought necessary in a scheme for mining on private lands are unprovided for. But that is no reason in itself for the Court to round out the incompleteness of the legislation: its task is merely to interpret what the legislature has enacted, no doubt, in case of ambiguity, choosing that interpretation that makes for completeness in the discernible legislative scheme. (at p549)

9. In my opinion, with great respect to the contrary view of the Supreme Court, the effect of the insertion of Div. 4A into Pt IV of the Act was not to extend an existing power found elsewhere in other divisions of Pt IV but to create a new power, the extent and incidence of which are to be found in what Div. 4A provides, both directly and referentially. The expression, "it shall be lawful", in s. 70A (1), is apt, in my opinion, to confer a power and in its context is not the equivalent of the addition of a further occasion for the exercise of the power given by s.50. Nor is it the same as a direct amendment of s.46 by the removal of the limitation as to the minerals with which that section, or at least with which sub-ss. 1, 2 and 2A, is, or are, evidently concerned. (at p549)

10. But the question remains as to what is incorporated in Div. 4A by reference. Section 70A (2) is clearly intended to make some portions of Div.2 applicable to a private minerals application and to the grant of such an application. The sub-section is couched in somewhat ambiguous terms: but is somewhat clarified by the amendment made to it in 1963. To read it in its unamended form grammatically might well confine its operation to those parts of Div. 2 that deal with the assessment and payment of rent, e.g. s. 51 (1). But the amendment - which would be operative at the time of the hearing by the warden of the appellant's application - does make it clear that it is the application and the grant of it which is to be "in the manner prescribed by Division 2" of Pt IV. (at p549)

11. Is s. 46 (3) part of the manner of granting an application which is prescribed by Div. 2? For one thing, it is not found in Div. 2; for another, it is a prohibition upon the granting of an application operating, as its sidenote suggests, to exempt land from the liability to be opened to mining or further mining; and, for yet another, it cannot, in my opinion, be treated as part of "the provisions of this Act" which are referred to in s. 50 (1) assuming for this purpose that s.50 (1) is part of the manner of granting an application which is attracted by s. 70A (2) to an application of the instant kind. In this latter connexion, I should point out that, in my opinion, the reference in s.50 (1) to "the provisions of this Act" is a reference to those provisions of the Act which govern and deal with entry upon private lands, e.g. s. 51 (3), (4), (5) and s. 55. Those words are not, in my opinion, a qualification of the power to grant an authority which s. 50 (1) gives to the warden. (at p550)

12. But, in my opinion, not only is s. 46 (3) not properly regarded as part of the "manner" of which s. 70A (2) speaks but consideration of ss. 70D and 70E, forming part of Div. 4A, indicates, to my mind, that s. 46 (3) was not intended to apply to a private minerals application. There are three relevant sections in Div. 1 of Pt IV, ss. 46, 47, 48. Plainly, s. 46 (1), (2) and (2A) are inappropriate to a private minerals application because of the express limitation contained in them to reserved minerals. Section 46 (3) construed in isolation could apply to privately owned minerals. It is not in terms confined to reserved minerals but refers to any mineral. Just as the denotation of "any mineral" may be extended by proclamation adding to the list of substances in the definition of minerals in s. 3, so additions by amendment to "this Part" could extend the operation of the prohibition the sub-section contains. In my opinion, prior to the insertion of Div. 4A, s. 46 (3) was confined in its operation in relation to an authority to enter to authorities to enter private lands to search for reserved minerals. But this was not because the word "mineral" in the sub-section was limited to reserved minerals but because the Act then only allowed of an authority to enter to search for reserved minerals. It may well be that if there were no contrary indications, the amendment of the Act to permit of the grant of private minerals authorities could extend the area over which s. 46 (3) operated. (at p550)

13. But, in my opinion, there are indications in Div. 4A itself that the operation of s. 46 (3) was not to be so extended and that it was not to apply to the grant of authorities to enter for which that division was providing. To my mind, the presence of sub-s. (2) in s. 70D which expressly incorporates ss. 47 and 48, and the absence of any reference to s. 46 (3) in s. 70E strongly point to this conclusion. There is really little, if any, difference in essential nature for relevant purposes between s. 46 (3) and the other sections in Div. 1, ss. 47 and 48. Section 46 (3) prohibits the grant of an authority: ss. 47 and 48 limit its effect. If one of them is caught up by "the manner prescribed by Division 2 of this Part of this Act and the regulations thereunder in the case of authorities to enter applied for or granted thereunder" in s. 70A (2), it seems to me, so would the others be included. But s. 70D (2) expressly makes ss. 47 and 48 applicable and s. 70D (1) makes a provision comparable to, though different from, s. 46 (3). Whilst it may be true that s. 70D (1) does not cover as much ground as might be expected in a scheme which had been fully thought through, and that, to some extent, there could be a place for s. 46 (3) beside s. 70D, I have come to the conclusion that s. 70D was intended to be the exclusive provision in relation to private minerals applications in the broad field in which s. 46 (3) and s. 70D were each capable of operating. (at p551)

14. Section 46 (3) deals, inter alia, with an application for authority to enter where a person other than the applicant is entitled to carry on mining operations, and it forbids the grant of an authority to enter. Section 70E (1A) authorizes the grant of a private minerals authority, except in relation to coal or shale, where mining operations for the latter minerals are being carried on. It is the prohibition in ss. 70D and 70E which is conceived to stand in the way of the grant of such an authority and not the prohibition in s. 46 (3), for s. 70E (1A) is prefaced with the words, "Notwithstanding the provisions of section 70D of this Act or of sub-section one of this section . . .". (at p551)

15. For all these reasons, I am of opinion that upon its true construction Div. 4A does not import s. 46 (3) into a private minerals application. (at p551)

16. Being of that opinion, the second and third questions posed by me at an earlier point in these reasons do not arise. However, it is my opinion that upon its true construction the Act does not commit the decision of the relevant fact to the warden. In connexion with the grant or refusal of an application for authority to enter, the warden is acting merely ministerially as an official, and not in any sense in exercise of a jurisdiction. It is, of course, otherwise when he constitutes the warden's court (see Pt VII of the Act). Such powers, authorities or discretions as are given to him are given expressly. In so saying, I am not unmindful of the question as to the extent of his discretion to refuse an application or as to what is the precise ambit of the inquiry he is required to hold by s. 51 (1). These are matters I have no present need to examine. To determine them, the express provisions of the Act only need to be construed. Whilst there has been a manifest tendency to construe statutes conferring jurisdiction as committing the decision of jurisdictional facts to the tribunal being empowered, there is not, in my opinion, any comparable tendency or rule in the case of statues conferring administrative authority or duty upon officials. No doubt it is quite possible for a statute upon its proper construction to give the ministerial officer authority in such a case finally to decide the fact upon which his authority depends or upon which it is conditioned. But usually, though not inevitably, this will be done by express words, such as by the formula, "if he is of opinion", or "if he is satisfied that". The nature of the warden's function, the complex nature of the fact, involving as it does the consideration of matters of law, upon which the prohibition in s. 46 (3) is to operate, all tend against the likelihood of the legislature committing its decision unexaminably to the warden; and I find no indication in the statute that it has. In my opinion, the duty to refuse an application for an authority to enter relevantly depends upon the objective existence of an entitlement within Pt IV to search for minerals upon the lands the subject of the application. Consequently, the Court is free to decide that question itself. (at p552)

17. In my opinion, the appellant co-contractor was not a person entitled under Pt IV to search for any mineral. The agreement with the owner because of the time at which it was made did not fall within s. 70 (1) to (10): see s. 70 (11). It did not require registration, nor was any consequence attached by the Act to its making. Section 70 (12) (f) would have required notification of any actual mining done under the agreement and the furnishing of a copy of it. This would not, in my opinion, make the appellant and his co-contractor persons entitled under Pt IV to search for minerals. The right to mine Crown minerals which are associated or combined with privately owned minerals which is given by s. 70 (12) (b) is not, in my opinion, an entitlement to search or prospect for Crown minerals. It makes lawful the extraction of Crown minerals by a person mining private minerals with the assent of the owner where the Crown mineral is associated or combined with the private minerals being so mined. It does not authorize search for the associated or combined minerals but operates at a later stage during the actual mining operation for a privately owned mineral. For the purposes of s. 70 (12), the agreement with the owner need neither be in writing nor express, but of course would fall within s. 70 (12) (f) and, if in writing, a copy would need to be supplied. But those circumstances do not give rise to an entitlement under Pt IV of the Act. (at p553)

18. It will be convenient if I defer for the time being the question whether mandamus will go to the warden, having regard to what I have already said, and I turn now to the second reson given by the warden for refusing the appellant's application, and the questions associated with it. (at p553)

19. Again the starting point is to determine what is comprised in "the manner prescribed by Division 2" or rather, what is involved in "granting" an application "in the manner prescribed by Division 2". Is the discretion given by s. 50 (2) part of the manner of granting an application within the meaning of the expression in s. 70A (2)? After a good deal of consideration and some fluctuation of mind, I have come to think it is. Having regard on the one hand to the relative paucity in detail of the provisions made by s. 70A for the making or grant of applications for authority to enter in search of privately owned minerals, and, on the other hand, to the extent of the parallelism with other authorities to enter which s. 70A generally and ss. 70A (3), 70B and 70D particularly, exhibit, the denotation of the expression "the manner prescribed" should not be narrowly confined. Whilst, with respect, I am unable to agree with the complete approximation which the Supreme Court has effected between the authority to enter which on the one hand s. 50 (1), and, on the other, s. 70A, empowers the warden to grant, I have come to the conclusion that at least the provisions of s. 50 and of s. 51 are imported into applications for authorities of the latter kind. Although they may be said not wholly to relate to the procedural steps to be taken in granting an application, and so not caught up in the description "manner of granting", if read literally, I am of opinion that the power to make stipulations and conditions, to decide priority of application by ballot, to combine areas in different ownership within the scope of an authority, to disregard informalities, to preface the grant by an inquiry and to fix an annual rental may all fairly be regarded as part of the manner of granting an application within the meaning of that expression in the context of the Act. (at p553)

20. A discretion to refuse the application on stated grounds, in my opinion, is different in kind from an absolute prohibition upon its grant. But it is also, in my opinion, not so readily discerned as part of the manner of granting the application as are the other items to which I have just referred. However, as I have said, not without hesitation, I have come to the conclusion that in the context of the statute and bearing in mind the reasons I expressed for taking a generous view of the words "manner prescribed" in s. 70A (2), the capacity to exercise the discretion given by s. 50 (2) is part of the manner of granting an application which is imported into Div. 4A by s. 70A (2). (at p554)

21. It is somewhat difficult to see why, with s. 46 (3) applying to an application for authority to enter to search for Crown minerals, there was any need for the express mention either of a holding or of exempted land in s. 50 (2), regarded as applying only, as it originally did, to Crown minerals. But in any case the Act lacks symmetry and completeness in a practical sense. To confine s. 50 (2) by construction to the case where an inquiry is not held is attractive but, in my opinion, the sub-section expressly gives a discretion to refuse an application both before or after an inquiry, in the stated circumstances, and it should not be construed as designed merely to provide for the exercise without an inquiry of a discretion granted elsewhere in the general power to grant an application. (at p554)

22. It was this discretion which the warden purported to exercise. He did not claim, indeed he denied, that he had any other relevant discretion. Consequently, the question whether or not the Act, properly construed, gave him authority finally to decide the circumstances which grounded the exercise of the discretion must be determined. In my opinion, it is quite clear that the statute did not so intend and did not in terms do so. Could it be that, if he was, erroneously, of opinion that land was not exempted land, and, in consequence, granted an application holding that he had no discretion to refuse it, the grant was unchallengeable? I think clearly not. Although it may be inconvenient that the objective existence of the facts dealt with in pars. (b) and (c) should be the basis for the exercise of his discretion in respect of them, in my opinion, for the reasons I expressed in relation to s. 46 (3), the proper construction of the Act is that the legislature has not committed the decision of the facts mentioned in s. 50 (2) to the warden; accordingly, the existence of the discretion relevantly depends upon the existence in fact of a holding under Pt IV. (at p554)

23. I am clearly of opinion that there was no such holding. The land in question was subject at the time of the appellant's application to the agreement between the owners and the appellant and another. The agreement derived no force or consequence from Pt IV of the Act: nor did the appellant or his co-contractor obtain anything under that Part. The agreement was "subject to the provisions of the Act" but that does not mean that the rights it conferred were derived from or under the Act: and, in particular, from or under Pt IV. If the time at which the land is to be subject to a holding under Pt IV for the purpose of s. 50 (2) is the time at which the warden has occasion to exercise the discretion that that sub-section gives him, it is quite clear that that agreement with the owners could not constitute a holding at all - it had expired by effluxion of time. If it was sought to set up the agreement between the company and the owners as being the relevant holding, that is in no beter case than the former agreement was at the time of the appellant's application. For the reasons I have expressed, it does not, in my opinion, constitute a holding under Pt IV. (at p555)

24. I come now to the final point whether mandamus should go. The situation, upon the views I have expressed, is that the warden has refused the appellant's application in purported obedience to a statutory command to which in the circumstances his authority was not subject and he has purported to exercise a discretion which in truth in the circumstances he did not have. This is not a case of an error of law or misconstruction of a statute by a tribunal or ministerial body deriving its relevant power or authority elsewhere than from the particular law or statutory provision which it misconceived or misconstrued. Nor is it a case of an error of law in the course of the exercise of an admitted jurisdiction, power or authority. The error in connexion with s. 46 (3) was as to the extent of the warden's authority in connexion with the grant of the application which was before him. The same is true with respect to s. 50 (2). Upon this analysis, such cases as Ex parte Nolan; Re Mayger (1947) 48 SR (NSW) 143 are inappropriate. The case falls rather within the class of case of which Re Kearsley Shire Council; Ex parte Hebburn Ltd. (1947) 47 SR (NSW) 416 is an example. (at p555)

25. It was sought to be said that the grant of a mandamus was futile because the warden in delivering his reasons for the course he took said that had he a general discretion to refuse the application he would do so. It is sufficient to say that this statement by the warden as to what he would do if he had a power which, according to his own view, he did not have has no weight, in my opinion, when the court is considering whether a writ of mandamus, which otherwise it is satisfied should issue, would be futile. The magistrate will consider the application according to law when the mandamus is issued and will no doubt then apply his mind to the matters which arise before him. His anticipatory comments are of no present consequence in relation to the granting of a mandamus. (at p555)

26. In my opinion, mandamus does lie and a writ of mandamus should issue to the warden to consider the appellant's application according to the authority conferred upon him in that behalf by the Act. (at p556)

McTIERNAN J. In my opinion this appeal should be dismissed. The reasons of Sugerman J. for refusing a writ of mandamus are, in my opinion, right and I do not think that I can usefully add anything to them. (at p556)

TAYLOR J. I have the advantage of considering the reasons prepared by my brother Menzies in this appeal and find it unnecessary to say more than that I agree with his reasons and conclusions. (at p556)

MENZIES J. The Full Court of the Supreme Court of New South Wales discharged a rule nisi for mandamus requiring the first-named respondent, as mining warden for the mining division of Murwillumbah, to hear and determine according to law the appellant's application lodged on 4th November 1960 for authority pursuant to Div. 2 of Pt IV of the Mining Act, 1906 (N.S.W.), as amended, to enter upon the lands of the second, third, fourth and fifth-named respondents for mining purposes. (at p556)

2. The warden had heard the application and had refused it. The appellant, however, contends that he failed to hear it according to law inasmuch as the application was refused by reference to ss. 46 (3) and 50 (2) (a) of the Act. His case is that neither of these provisions has any relevance in determining his application because neither provision applies to an application made under s. 70A of the Mining Act or because, upon its facts, his application fell outside the terms of these provisions according to their true construction. (at p556)

3. Some examination of the framework of the Mining Act has, I think, to be made before it is possible to determine the operation and meaning of ss. 46 (3) and 50 (2) (a). In Pt II provision is made for the issue of miners' rights conferring authority to take possession and occupy Crown lands for mining purposes and to mine thereon. Part III provides for the granting of leases of Crown lands for mining purposes. Part IV relates to mining on private lands and has, it seems, always been regarded as opening private lands for the mining thereon of any minerals reserved to the Crown. Division 2 of Pt IV provides for the granting of authority to enter such private lands. In 1918 Div. 4A was added to Pt IV and it relates - despite its misleading heading - to the mining on private lands of minerals not reserved to the Crown. Section 70A is as follows: "70A. (1) Except as hereinafter provided, it shall be lawful, on and after the first day of January, one thousand nine hundred and nineteen, for the warden to grant to any holder of a miner's right authority to enter in and upon any private lands and search for any minerals which at the date upon which the authority is granted are not reserved to the Crown. (2) Application for any such authority to enter shall be made to, and such authority may be granted by the warden subject to assessment and payment of rent and compensation in the manner prescribed by Division 2 of this Part of this Act and the regulations thereunder in the case of authorities to enter applied for or granted thereunder. (3) Every such authority shall confer the like rights and privileges and entail the like obligations and penalties as are respectively prescribed by this Act in relation to authorities to enter granted under the said Division, save only that the holder shall not be required to pay any royalty to the Crown in respect of any minerals (other than minerals reserved to the Crown) won from the land included in such authority to enter." The granting of authorities under s. 70A is, however, limited by s. 70D, which is in these terms: "70D. (1) No authority to enter, and no lease under this Division shall be granted in respect of any land in or upon which bona fide mining operations are being carried on by or with the concurrence of the owner at the time when the application is made: Provided that in the event of any dispute arising as to whether bona fide mining operations are being carried on as aforesaid, or as to the area protected by this section, the question shall be determined by the Minister after inquiry and report by the warden. (2) The provisions of sections forty-seven and forty-eight of this Act shall apply to applications for authority to enter or lease under this Division." (at p557)

4. I come now to s. 46 (3) and s. 50 (2) (a). Section 46 (3) is in Div. 1 of Pt IV, and s. 50 (2) (a) is in Div. 2 of that Part. The two provisions are as follows:
"46. (3) Provided that, except as hereinafter in this Act provided, no application for an authority to enter shall be granted under this Part in respect of any land in or upon which any person other than the applicant is at the time of the making of the application entitled under this Part to search or prospect for gold or any mineral or in or upon which any person other than the applicant is lawfully carrying on mining operations, whether under this Act or the Acts hereby repealed."
"50. (2) The warden may, whether any inquiry has been held as hereinafter in this Act provided or not, refuse any application for authority to enter - (a) if the land is the subject of an application or holding under this Part or under any Act hereby repealed, or is exempted from lease under this Part." (at p558)

5. Without doubt, when first enacted s. 46 (3) applied only to applications for authority to enter private lands to search or prospect for minerals reserved to the Crown for at that time there was no power to grant an authority to enter private lands for the purpose of mining minerals not reserved to the Crown. When, however, Div. 4A was added to Pt IV, power was given to grant authorities to enter private lands for the purpose of mining thereon minerals belonging to owners. The problem which now arises is whether the exemption provided by s. 46 (3) limits the power to grant an authority to enter under s. 70A as well as such an authority under s. 50. Prima facie, the words of s. 46 (3) would limit the power to grant authorities both under s. 50 and s. 70A, and the mining warden in the decision which gave rise to these proceedings decided that he had to apply s. 46 (3). The Full Court held that, in so doing, the mining warden was correct. Furthermore, the mining warden decided that, in considering the application under s. 70A, the provisions of s. 50 (2) (a) were applicable. The Full Court also held that in this the mining warden was correct. (at p558)

6. The main strength of the appellant's argument against the applicability of s. 46 (3) and s. 50 (2) (a) to an application made under s. 70A stems principally from what are said to be the narrow terms of s. 70A (2) and the positive provisions of s. 70D. (at p558)

7. Section 70A (2) does not provide in terms that the provisions of Div. 2 and of the regulations made thereunder should either simply or mutatis mutandis apply to the making and granting of applications under Div. 4A. The sub-section may indeed be contrasted with s. 70A (3), where a direct provision of this character is to be found. See too s. 70B (2). As s. 70A (2) is actually framed the words "in the manner prescribed" etc. as a matter of grammar attach themselves to the immediately preceding words, viz. "subject to assessment and payment of rent and compensation". Furthermore, the final words of sub-s. (2) may be thought to give some support to this strictly grammatical reading of the provision. The words "in the case of authorities to enter applied for or granted" under Div. 2 would perhaps more aptly refer to the assessment and payment of rent and compensation when an authority is applied for or granted than to the making and granting of applications for authorities. These words could be regarded as equivalent to words such as "where authorities to enter are applied for or granted" under Div. 2. Then too it is apparent form provisions such as s. 70D that there are in Div. 4A provisions applicable to the granting of applications for authorities to enter which do not apply to the granting of applications made under Div. 2. Furthermore, if the words "in the manner prescribed by Division 2" etc. are treated as attached to the words "made to" and "granted by", the words "subject to assessment and payment of rent and compensation" are left without any express attachment to s. 51, to which it would seem likely it was intended that they should refer. Indeed, s. 51 is the only section I can find that deals with the fixing of rent. Section 155 does provide for the manner of assessing compensation and no doubt a reference to s. 70A to 51 (2) would also attract the operation of s. 155. It is further to be observed that if s. 46 (3) does apply to applications under s. 70A, there would appear to be some overlapping between that provision and s. 70D which, in express terms, applies to the granting of applications under s. 70A. Finally, although s. 70D provids expressly for the application of ss. 47 and 48 to applications under s. 70A, there is no reference to s. 46 which might have been expected had it been intended that the provisions of that section should also apply to applications made under s. 70A. To this may be added the consideration already noticed, that when it was first enacted, s. 46 related only to entry for mining minerals reserved to the Crown. (at p559)

8. All the considerations to which I have just referred make a strong case for not regarding s. 46 as applicable to an application under s. 70A, yet in the last resort I have not been able to escape from the language of s. 46 (3) which in terms forbids the granting of an application "under this Part" "except as hereinafter in this Act provided" in respect of any land described therein. The considerations to which I have referred fall short, I think, of a positive provision negativing the application of s. 46 (3). I am influenced, too, by the consideration that the words "mining operations" in s. 46 (3) are quite general and cannot be confined to mining operations for minerals reserved to the Crown. The view taken by the mining warden and the Full Court is not only in strict accordance with the words of s. 46 (3), but also it is of practical convenience. Moreover, I think there is some operation for s. 70D beyond s. 46 (3). Section 70D, applying as it does to "the time when the application is made", has an operation somewhat different from that part of s. 46 (3) relating to the lawful carrying on of mining operations. This - unlike the part concerned with the entitlement under the Part to search or prospect for gold or any other mineral, which is expressly concerned with the time of the making of the application - would seem to apply at the time when an application would otherwise be granted. Furthermore, it seems to me that the words in s. 70A (2) "subject to assessment and payment of rent and compensation" assume that any such assessment will be made as elsewhere provided in the Act. (at p560)

9. Upon the whole, therefore, I have come to the conclusion that the Full Court was correct in giving an affirmative answer to the question whether s. 46 (3) applies to an application under s. 70A. (at p560)

10. For much the same reasons and because it is Div. 2 (see s. 70A (2)), I have also come to the conclusion that the Full Court was correct in deciding that s. 50 (2) applies to an application made under s. 70A. Again, practical considerations would seem to indicate that this was intended. (at p560)

11. I have therefore to consider whether the mining warden was right in deciding that, in the circumstances, s. 46 (3) prevented the granting of the application because, at the time of the application, a person other than the applicant was entitled to search or prospect for minerals sought in the area subject to the application. (at p560)

12. The mining warden's finding that s. 46 (3) applied in the circumstances was actually defective because he did not find that some person other than the applicant was, at the time of the application, entitled "under this Part" to search or prospect for rutile. Were this omission merely an oversight, it could no doubt be overlooked, but the fact, as I see it, was that any entitlement possessed by any person other than the appellant applicant was not an entitlement "under this Part". It was an entitlement under an agreement of 17th December 1956 between the then owners of the land of the one part, and the applicant and one Lloyd Foyster of the other part. It was argued for the respondents that the entitlement under this agreement was an entitlement under Pt IV because of s. 70 (12) (f), which is as follows: "70. (12) (f) Any person who otherwise than in pursuance of an authority to enter or a lease under this Part or any application therefor, mines privately owned minerals other than coal or shale shall within one month after commencement of such mining give notice thereof to the Under Secretary for Mines and furnish particulars of the area being so mined together with a copy of the lease or agreement (if any) under which such person is mining such privately owned minerals." This provision, however, does not make an entitlement under an agreement an entitlement under the Part. Indeed, it is only after there has been mining under an agreement that any obligation arises to notify the agreement. Some reliance was also placed on s. 70 (12) (b), which is as follows: "70. (12) (b) Where privately owned minerals are associated or combined with any Crown minerals the owner of such privately owned minerals, or any person mining such privately owned minerals by agreement with such owner, may in mining such privately owned minerals and notwithstanding anything contained in this Act also mine such Crown minerals as are associated or combined therewith." This provision has no application unless and until there is mining of Crown minerals in association with privately owned minerals and it cannot serve to make mining for privately owned minerals pursuant to an agreement mining under the Part. (at p561)

13. I have therefore come to the conclusion that the mining warden and the Full Court were in error in deciding that the appellant's application had to be refused because of the existence of the agreement referred to. (at p561)

14. Before us, it was sought to attract s. 46 (3) in another way, viz. by saying that, at the time of the hearing of the appellant's application, the last-named respondent was lawfully carrying on mining operations under the Mining Act or Acts repealed by it. Not only was there no decision about this by the mining warden or by the Full Court but, in the judgment of Sugerman J. in the Full Court, this passage appears: "At the time of the warden's decision refusing the applicant's application this company was engaged in mining the subject land under an agreement made with the owners thereof on 16th November 1962, such mining having commenced at some time during the pendency of the applicant's application for an authority to enter. It is, as I understand, common ground that this circumstance, which the warden held to have no bearing on the proceedings before him, has no further relevance than that it explains how the company came to be represented at the inquiry before the warden and to be joined as a party respondent to this present application and the interest which it claims and relies upon as entitling it to be heard before the warden and before this Court" (1965) 83 WN (Pt 1) (NSW) 261, at p 262 . In these circumstances, this Court should not entertain the alternative submission made by counsel for the respondents to attract the operation of s. 46 (3). (at p561)

15. Turning now to s. 50 (2) (a), it appears to me that reasons like those which have satisfied me that an entitlement under the agreement referred to was not an entitlement under Pt IV, lead to the conclusion that it was an error for the mining warden to find that, by virtue of the agreement, the land in question was "the subject of an application or holding under this Part or under any Act hereby repealed". Any holding that there was was a holding under the agreement and it is not necessary to consider whether or not the rights which the agreement conferred amounted to a holding. (at p562)

16. My conclusion is, therefore, that the mining warden was in error in refusing the appellant's application because of the prohibition in s. 46 (3) or by virtue of a discretion conferred upon him by s. 50 (2) (a). (at p562)

17. It remains to consider whether the errors I have found justify mandamus to the mining warden to hear and determine the application according to law. In my opinion, they do. For an administrative authority to refuse an application under the mistaken belief that there is a statutory prohibition against granting it would call for mandamus to hear and determine according to law unless the statute made it clear that it was within the function of the administrative authority to determine finally the extent of his authority and to determine finally whether or not an application was within his authority. I do not read s. 46 (3) as conferring any such authority upon the mining warden. That provision forbids the granting of an application for an authority in the circumstances there stated, and if it appears that a mining warden has mistakenly decided that an application must be refused because in the circumstances he is prohibited from granting it, mandamus lies to compel him to hear and determine the application according to law. Similarly with regard to s. 50 (2). If a mining warden assumes a discretion not conferred by that provision and exercises it against an applicant, the mining warden's mistake does not finally conclude the matter. It is only necessary to contrast s. 50 (2) (a), (b) and (c) with s. 50 (2) (d) to see that the earlier sub-sections do not make the opinion of the mining warden final. (at p562)

18. The final contention of counsel for the respondents was that in any event mandamus should be refused because, in giving his reasons for his decision, the mining warden said: "In this regard also I consider that at the time of the application the applicant had clear access to the area applied for under the agreement and that right and access he was not exercising and it seems to me unreasonable that under all the circumstances and in the face of all the evidence that he should be allowed access by a different route. If I did have a general discretion to refuse, or grant, and I hold that I have not, and I refer to my views as to that to the decision in 1010 application of recent date, I would exercise if I could, a general discretion to refuse the application. In this case the minerals sought are vested in the owners, and the owners have waited a long time to have the minerals taken out, and after all they are the owners of these minerals, and they clearly want the land mined and finished with for mining to draw out what they can for monetary returns and I suppose to resume their farming, and I would if I could have exercised a general discretion to refuse the application." This appeal is not, however, an appropriate proceeding in which to determine whether or not the mining warden has, under the Act, a discretion to grant or refuse an application for an authority to enter over and above such limited discretion as is conferred upon him in express terms. What the mining warden said was that if he did have "a general discretion to refuse, or grant", he would exercise it to refuse. It is not possible, however, for this Court to determine what the mining warden meant when he referred to "a general discretion" and we should not assume that upon a fresh hearing the mining warden, if he were to change his mind and decide that he had some discretion extending beyond the limits of that conferred by provisions such as s. 50 (2) but confined by the general provisions of the Act, would necessarily refuse the application. (at p563)

19. For the foregoing reasons, I would allow the appeal and make absolute the rule nisi for mandamus. (at p563)

OWEN J. This is an appeal by special leave from an order of the Supreme Court dismissing an application by the appellant for a writ of mandamus directed to a mining warden appointed under the Mining Act, 1906, requiring him to hear and determine according to law an application by the appellant for an authority to enter certain private lands to search for zircon, rutile and ilmenite, minerals which were not reserved to the Crown. (at p563)

2. The application for authority to enter, which was lodged with the warden's clerk on 4th November 1960, was made under s. 70A of the Act. That section is to be found in Div. 4A of Pt IV of the Act, a division which was added to the Principal Act in 1918 and which deals, as its heading says, with "Mining on private lands held without reservation of minerals". It introduced into the Act for the first time provisions whereby a person not being the owner of private land might be granted an authority to enter that land and later a mining lease of it giving him the right to mine for minerals which were, under the common law, the property of the owner of the land. Section 70A, which is the source of the warden's power to grant an authority to enter under Div. 4A, was, until 1963, in these terms: "70A. (1) Except as hereinafter provided, it shall be lawful, on and after the first day of January, one thousand nine hundred and nineteen, for the warden to grant to any holder of a miner's right authority to enter in and upon any private lands and search for any minerals which at the date upon which the authority is granted are not reserved to the Crown. (2) Application for any such authority to enter shall be made to, and such authority may be granted by the warden subject to assessment and payment of rent and compensation in the manner prescribed by Division 2 of this Part of this Act and the regulations thereunder in the case of authorities to enter applied for or granted thereunder. (3) Every such authority shall confer the like rights and privileges and entail the like obligations and penalties as are respectively prescribed by this Act in relation to authorities to enter granted under the said Division, save only that the holder shall not be required to pay any royalty to the Crown in respect of any minerals (other than minerals reserved to the Crown) won from the land included in such authority to enter." In 1963, sub-s. (2) of the section was amended by Act No. 57 of 1963 by omitting the words "be granted by the warden" from their original position and inserting them after the word "compensation". This was no doubt done to make it plain that it was the application for and the grant of an authority to enter under Div. 4A that were to be made and granted in the manner prescribed by Div. 2 of Pt IV and the regulations thereunder and not merely the rent and compensation that were to be assessed in the manner prescribed by that division. I think, however, that the meaning of the sub-section in its original form was the same as that which it now bears and, for this reason, I find it unnecessary to decide whether or not it was the sub-section as so amended or as it stood earlier which was applicable to the present case. (at p564)

3. In June 1965 the warden held an inquiry for the purpose of considering the appellant's application and on 13th August 1965 he refused to grant it for two reasons which he gave. The first of them was based upon s. 46 (3) of the Act, a section which is in Div. 1 of Pt IV. Section 46 (1) declared that all private lands should be open to mining for gold and for silver when reserved to the Crown. Section 46 (2) provided that if the Crown grant of any private land contained, or if not yet issued would when issued contain, a reservation to the Crown of all minerals, the land should be open to mining under Pt IV for all minerals and s. 46 (2A), added in 1935, empowered the Governor to exempt any private land from the provisions of the act and to revoke or amend any such exemption. Section 46 (3) was in these terms: "Provided that, except as hereinafter in this Act provided, no application for an authority to enter shall be granted under this Part in respect of any land in or upon which any person other than the applicant is at the time of the making of the application entitled under this Part to search or prospect for gold or any mineral or in or upon which any person other than the applicant is lawfully carrying on mining operations, whether under this Act or the Acts hereby repealed". The Act of 1963 amended this sub-section by adding the words "or entitled to carry on" after the words "carrying on" wherever occurring. Here again I think it unnecessary to decide whether it is the original provision or its words as amended that should be applied in the present case. (at p565)

4. The warden was of opinion that s. 46 (3) applied to an application made under s. 70A and that at the time when the appellant's application was made in November 1960 there was a person other than the appellant "entitled under this Part to search or prospect for" privately owned minerals. This last conclusion was based upon the fact that in December 1956 a written agreement had been made between the then owners of the land on the one hand and the appellant and one Foyster on the other, by which the owners had granted to the appellant and Foyster the right to mine the land for rutile and other privately owned minerals. The agreement was for a term of five years and although no mining work had been done on the land by the appellant or Foyster since the end of 1957 because the price of rutile had fallen, the agreement was, the warden considered, still operative at the date of the appellant's application in November 1960 for an authority to enter. Following upon the making of that agreement the requirements of s. 70 (12) (f) had been fulfilled. That paragraph provided that "Any person who, otherwise than in pursuance of an authority to enter or a lease under this Part or any application therfor, mines privately owned minerals other than coal or shale shall within one month after commencement of such mining give notice thereof to the Under Secretary for Mines and furnish particulars of the area being so mined together with a copy of the lease or agreement (if any) under which such person is mining such privately owned minerals". By reason of the fact that notice of the agreement of 1956 and the other particulars required by the paragraph had been given to the Under Secretary for Mines, Foyster was, the warden considered, a person other than the applicant who was, within the meaning of s. 46 (3), "entitled under this Part to search or prospect for minerals" on the land the subject of the appellant's application. He therefore refused to grant the application. (at p565)

5. The first question to be considered is whether s. 46 (3) applies to an application made under s. 70A of Div. 4A. The sub-section is, in form, a proviso to the preceding sub-sections, but is not limited in its operation to minerals which are reserved to the Crown. It should be noticed that the prohibition which it contains is against the grant of an authority to enter "under this Part" in respect of any land in or upon which a person other than the applicant is entitled "under this Part" to search or prospect for gold or any mineral, and that at the time when it was enacted there was no Div. 4A in Pt IV. It should be noticed also that its opening words are "Except as hereinafter in this Act provided". (at p566)

6. Division 4A contains several sections which in express terms impose limitations upon the power to grant an authority to enter private land to search for minerals which are not reserved to the Crown or to obtain mining leases of such land. The first of these sections is s. 70D (1) which forbids the grant of an application for authority to enter upon or for a mining lease of land upon which, at the time of the application, mining operations are being carried on by the owner or with his concurrence. Section 70D (2) declares that ss. 47 and 48 (which are in Div. 2 of Pt IV) are to apply to applications for authority to enter or for a lease under Div. 4A. Section 47 provides that no authority to enter and no lease under the Part shall, except with the consent of the land owner, extend to within certain distance of specified improvements on the land, such as a garden or orchard or the principal residence of the owner and s. 48 makes a somewhat similar provision with regard to cultivated land. Section 70E, which is in Div. 4A, provides a degree of protection for certain colliery holdings. (at p566)

7. Section 70A (1) which, as I have said, is the source of the warden's power to grant an authority to enter under Div. 4A, opens with the words "Except as hereinafter provided, it shall be lawful" to grant such authorities and no doubt when the draftsman came to insert what I will call the protective provisions in that division, he would have had these opening words in mind and for this reason he expressly incorporated the provisions of ss. 47 and 48 in s. 70D. He must surely have realized also that s. 46 (3), although in form a proviso, contained a further protective provision which, if it was intended that it should apply to applications made under Div. 4A, would by reason of the opening words of s. 70A (1) require also to be included in that division either by incorporating it by reference (as was done with ss. 47 and 48) or by setting out the substance of the exemption which it contains. Yet he took neither of these courses and, subject to a contention which I will mention, the existence of ss. 70D and 70E in Div. 4A and the express incorporation in that division of ss. 47 and 48 point to the conclusion that ss. 47, 48, 70D and 70E were intended to provide an exclusive statement of the protection to be afforded to owners of private lands against the grant under Div. 4A of an authority to enter. For the respondents it was contended, however, that a legislative intention that s. 46 (3) should operate in the case of applications under Div. 4A is to be found in s. 70A (2) which provides that an application for an authority to enter under that section may be granted "in the manner prescribed by Division 2 of this Part of the Act and the regulations thereunder in the case of authorities to enter applied for or granted" under Div. 2. I should here interpolate that although s. 46 (3) appears in Div. 1 and not in Div. 2, it applies to applications under Div. 2 because s. 50 (1) of Div. 2 empowers the warden to grant authorities to enter private lands "subject to the provisions of this Act" and s. 46 (3) is one such provision. I agree therefore that in exercising the power conferred upon him by s. 51 (1) to grant an authority to enter private lands under Div. 2 of the Act, the warden must apply s. 46 (3) of Div. 1. (at p567)

8. This does not carry the respondents the whole way. They must show that s. 50 and with it s. 46 (3) are taken into Div. 4A by s. 70A (2) and this they seek to do by saying that s. 46 (3) prescribes the manner of applying for or granting authorities to enter applied for or granted under Div. 2. I cannot accept this submission. Section 50 contains some provisions prescribing the manner of applying for and granting authorities to enter but s. 46 (3) is not, in my opinion, one of them. What it does is to forbid the grant of an authority to enter if certain facts exist. It is a protective clause and cannot be properly described as one which prescribes the manner in which an authority to enter may be granted. (at p567)

9. In the result, therefore, I am of opinion that the warden fell into error in thinking that s. 46 (3) applied to the application which he had to consider. It follows that in refusing to grant that application because of its provisions he acted under a misconception of the law which it was his duty to apply. (at p567)

10. The second ground upon which the warden refused to grant the appellant's application was based upon s. 50 (2) (a) which he considered applied where an application for authority to enter was made under Div. 4A. Section 50 (2) (a) gave the warden a discretion to "refuse any application for authority to enter - if the land is the subject of an application or holding under this Part or under any Act hereby repealed, or is exempted from lease under this Part". It was amended by the Act of 1963 but, as in the case of the other amendments made by that Act to which I have earlier referred, I think it is unnecessary to decide whether the sub-section should be applied to the present case as it stood when the appellant's application was made or as it stood after its amendment in 1963. (at p568)

11. Here again, reliance is placed by the respondents upon s. 70A (2) as making s. 50 (2) (a) apply to applications under Div. 4A. For the reasons which I have given in dealing with s. 46 (3) I do not agree that this is so. Section 50 (2) (a) empowers the warden to refuse to grant an authority to enter if the facts set out in the paragraph exist. It does not prescribe the manner in which an authority may be granted and in holding that it applied to an application under Div. 4A the warden, in my opinion, again took into account and applied a provision which was irrelevant to the matter which he was called upon to decide. (at p568)

12. It was said that the construction that I have adopted will result in anomalies. This may well be so but the difficulties of construing the patchwork of provisions in the Act as it now stands are such that anomalies will occur no matter what construction is placed upon the sections with which this case is concerned. (at p568)

13. One further matter remains to be mentioned. In the course of his reasons for refusing to grant the appellant's application, the warden said that the Act gave him no "general discretion" to refuse such a grant. He said that if such a "general discretion" had been conferred upon him he would have refused to grant the application because the appellant had had "clear access" to the land in question under the agreement made with the land owners in December 1956 but had not taken full advantage of it. In these circumstances, he said, it did not seem right that he should "be allowed access by a different route". Counsel for the respondents submitted that the warden had what he had described as a "general discretion", and that we should so hold. In that event, he said, it would be futile to grant mandamus in the light of the warden's opinion that if his discretion was wider than he believed it to be, he would have refused the application. I do not agree that we should take that course. It may be that a wider discretion than that which he thought was conferred upon him is vested in the warden. We did not hear full argument on the point or on the question whether, if he had such a discretion, the ground upon which he said he would have exercised it afforded any justification for refusing the application. I express no opinion on either point. The fact is that it was not for that reason that the application was refused. It was refused because the warden wrongly considered himself bound to apply ss. 46 (3) and 50 (2) (a) and applied them. In doing so he constructively failed to hear and determine the matter according to law and mandamus should, in my opinion, go. (at p569)

14. I would allow the appeal. (at p569)

Orders

Appeal allowed with costs. Order of Supreme Court be set aside and in lieu thereof order that a writ of mandamus issue out of the Supreme Court directed to the respondent, Telford Patrick Basil Burns, commanding him to consider and deal with the appellant's application for an authority to enter in and upon the private lands of the respondents Frederick Charles Hughes, Peter James Prichard, Jessie Hughes, Hector James Robertson and Ena Frances Robertson mentioned in such application according to law, and order that the appellant's costs of the application in the Supreme Court for a writ of mandamus be paid by the respondents other than the said Telford Patrick Basil Burns.