Wells v Simnovec & Anor No. Scgrg-97-495 Judgment No. S6694
[1998] SASC 6694
•8 July 1998
WELLS V SIMNOVEC & ANOR
Full Court
Coram: Cox, Mullighan and Williams JJ
Cox J
Appeal under the Mining Act 1971 from the Environment, Resources and Development Court.
The appellant took proceedings in the Warden’s Court seeking an order under s70 of the Mining Act that six mining leases held by one or other of the respondents be adjudged liable to forfeiture with a recommendation to the Minister of Mines and Energy that the leases actually be forfeited. The section provides that a recommendation of this sort shall not be made unless the Court is satisfied that the requirements of the Act in relation to a lease have not been complied with in a material particular and that the matter is of sufficient gravity to justify forfeiture. It emerged that three of the leases had expired prior to the hearing of the appellant’s plaints and had not been renewed. The learned Senior Warden took the view that no relevant issue could arise under s70 with respect to those leases and he dismissed the plaints in so far as they related to those leases. He found in favour of the appellant in the case of the other three leases, numbers 4830, 5011 and 5018, and stated his intention to recommend to the Minister that those leases be forfeited. However, on being advised by the respondents’ counsel that his decision would be taken on appeal, the Senior Warden stood the matter over pending the appeal’s determination. An appeal to the ERD Court was allowed and it was ordered that no recommendation be made to the Minister that the three leases be forfeited. The appellant comes to this Court seeking to have the Senior Warden’s decision restored so that his foreshadowed recommendation for forfeiture can go forward to the Minister.
The three leases relate to contiguous areas of land at the site of an old gold mine at Mount Grainger, near Oodlawirra. The mine was worked in the nineteenth century and then abandoned. In 1980 and 1982 the respondents - it is unnecessary for present purposes to distinguish their respective associated interests - acquired the leases and over the years they did a considerable amount of work but nothing like enough, the appellant claimed, to satisfy the requirements of reg57 of the Mining Regulations 1972. The relevant part of that regulation reads -
Mining Lease:
Immediately upon receipt of advice of the grant thereof, a mining lease shall be worked:
(a) by not less than one able-bodied man diligently mining for minerals other than precious stones provided for in the lease for a total of not less than 100 hours per calendar month; or
(b) as may be specified in the lease; or
(c) be worked in such manner as may be approved by the Minister."
The appellant’s case was that the one hundred hours a month provision applied to these leases and that the respondents had failed to comply with it. The respondents’ answer was that they had done substantial work on the leases and they had plans in place for their full scale development. Alternatively, if they had been in breach of reg57, their breach was not of sufficient gravity to warrant forfeiture.
So the factual issues in the Warden’s Court revolved about the amount and kind of mining that the respondents had done. In particular, no issue was raised as to any possible exemption of the respondents from the requirements of reg57(4)(a) by reason of the terms of the leases themselves. That is made clear in the following passage from the learned Senior Warden’s reasons -
"The leases require the submission of a Developmental and Rehabilitation Programme for approval, and mining must be conducted in accordance with that. If there is such a proposal in relation to these leases, it is not in evidence before me."
- and would seem to be confirmed by the absence of any reference to this last subject in the respondents’ notice of appeal against the Senior Warden’s judgment.
Much evidence was called in the Warden’s Court about the amount of work done on the leases while they were under the respondents’ control. The Senior Warden found that the work fell far short of the requirements of reg57. The respondents had been in occupation of the leases for fourteen years. Certain experimental testing had been done off-site by a geologist named Curtis but the Senior Warden, relying on reg62, rejected the respondents’ argument that this could be brought into account. He summarized his findings on the reg57 issue thus -
"Work done off the lease is not work that counts for compliance with the labour conditions. Mr Curtis has done no work on the lease, and the best this work can do is contribute to the issue of sufficient gravity. Mr Simnovec’s work, taken at a high point which is clearly generous of 100 hours, satisfies the labour conditions for one lease for one month. It is my conclusion that since the end of the statutory holiday on 15 February 1996 a maximum of 100 hours has been done on these leases. I note the general allegation that sampling has been done, but this was so vague that I do not attribute specific hours to it beyond that 100 hours. In relation to these leases, 100 hours was due to be done in respect of each of them commencing on 15 February up to the date of the plaint on 6 May. I accept as a generous estimate that 100 hours has been done. In respect of each lease, 100 hours was due each by 15 March, another 100 hours by 15 April and by the date of the plaint, say another 50 hours. However one looks at it, on the authorities the breach of labour conditions here is a breach of the regulations in a material particular. Although the defendant does not concede this, it is a clear tenor of the defendant’s case that there is a breach of labour conditions, and the real issue is whether it is of sufficient gravity to warrant forfeiture."
The Senior Warden went on to consider that issue. He noted that the respondents and another interested miner had struck a deal with Goldstream Mining NL under which it was proposed that Goldstream should inject a considerable amount of money into the mining operations. However, the arrangement had not got past the Heads of Agreement stage and was subject to the approval of Goldstream’s board and also the Minister of Mines. The proposal therefore remained speculative - it might turn out to be a mirage. Fourteen years had passed and the respondents were still at the exploration and development phase of their tenure. In the event of the leases being forfeited the appellant had the right under the Act to take them over for the balance of their respective terms. This led the Senior Warden to consider the appellant’s ability, from the point of view of his skill and financial backing, to bring the mining operation into production. He considered the appellant to be naive and inexperienced and to lack substantial financial means. As against that, he was clearly determined and the Senior Warden was impressed by the calibre of the case that he presented to the Court. He took into account what he described as the Mining Act’s self-regulating policy - that a lessee will be discouraged from breaching his labour conditions and other lease requirements by the fear that someone may otherwise jump his claim. He concluded his findings as follows -
"In exercising the decision as to whether a breach is of sufficient gravity, the court needs to look at all the surrounding circumstances. A major consideration must be to ensure that mining will be encouraged on mining leases. The best argument from Mr Simnovec in this case is that these tenements will be only successfully developed by a large-scale operation. Given the work that has occurred to date, there is no certainty in that view. All he offers to pursue that view is a non-binding commitment by Goldstream to undertake $200,000 worth of expenditure if the board accepts the agreement and the Minister approves it, and even then it is discretionary. Mr Wells has come on the scene and, ill-equipped as he is, I accept his bona-fides to intend to undertake genuine activity on these leases. Consistent with the previous precedents of this court, the plaintor should be encouraged where the miner has not been undertaking the work which the Act imposes upon the miner as an obligation. There is a background here of long-term breach of labour conditions. The agreement with Goldstream is conditional and speculative. I find the breach in labour conditions this year is of sufficient gravity to warrant forfeiture, and I recommend to the Minister that these leases be forfeited."
The respondents appealed to the ERD Court. The appeal was heard by Judge Bowering who, after giving due notice to the parties, decided the case on a point that had not been taken in the Warden’s Court. His Honour held that the question whether the respondents had worked the leases as required was to be answered by an examination of the leases themselves. He considered that the terms of the leases in effect ousted the one hundred hours rule laid down in reg57 but without effectively replacing it with anything else. Accordingly the respondents were freed from any labour requirements and the appellant’s case for a forfeiture recommendation was not made out. The appeal to the ERD Court was therefore allowed.
The appellant makes a number of complaints about the learned Judge’s decision but the principal question for us turns on the interrelation of reg57 and the covenants contained in the three leases. However, the appellant had a preliminary objection to the hearing of the appeal and it is best to deal with that now.
The Senior Warden made his order, favourable to the appellant, on 18 July 1996. On 12 August 1996 the respondents filed an appeal against that order in the Land and Valuation Division of the Supreme Court. They relied on s65(3) of the Mining Act 1971. On 9 December 1996 the appeal came on for hearing before Debelle J. His Honour pointed out that the Mining Act had been amended in 1995 so that appeals from the Warden’s Court thereafter lay to the ERD Court. Mr Lambert, who was appearing for the respondents, said -
"I must have missed the amendment. I got a recent reprint from the Government Printer."
He explained that he had Reprint 5, and it transpired that the current reprint was Reprint 6. The Judge dismissed the appeal as incompetent. Later the same day Mr Lambert drafted an appeal to the ERD Court. By now he needed an extension of time. He made an affidavit, also on 9 December 1996, explaining why there had been a delay. His affidavit included the following paragraphs -
The appellant, John Jacob Simnovec and I attended the South Australian Resource Centre in Grenfell Street, Adelaide and ordered from that source that latest consolidation of the Mining Act Rules and Regulations shortly prior to the lodging of an appeal in this matter.
The copy of the Mining Act that we were supplied by the Resource Centre explicitly stated that the appeal had to be lodged with the Land and Valuation Division of the Supreme Court.
An appeal was duly lodged in accordance with the act, as I believed to be the correct act, with the Land and Valuation Division of the Supreme Court on 12 August 1996, well within the one month allowed under section 65 of the Mining Act."
The extension application came before Judge Trenorden of the ERD Court on 18 December 1996. Mr Lambert appeared for the applicants and Mr Royle for the present appellant. Mr Royle had no objection to the application subject to getting his costs. The learned Judge granted the extension and reserved the question of costs to the Judge hearing the appeal. Judge Bowering delivered judgment on the appeal on 7 March 1997. The present appellant wished to appeal to this Court. He did not institute his appeal within the time provided by the rules. On 21 April 1997 Duggan J extended the time. The appellant’s first ground of appeal complains of Judge Trenorden’s grant of an extension of time in the ERD Court to the present respondents. The appellant says that the Judge’s order was made on false evidence. In an affidavit filed in the present appeal, he said that he made enquiries at the Government Printer’s office and found that the Government Printer does not now make retail sales. As for Mr Lambert’s subsequent statement, that he bought the latest consolidation of the Mining Act from the South Australian Resource Centre in Grenfell Street, there was no such place although there was an office of the Department of Environment and Natural Resources in Grenfell Street but their staff told the appellant that they did not sell copies of the Mining Act. There was a place in Grenfell Street that did sell Acts and Rules and Regulations and that was Information SA. However, the appellant said he was told by the staff of Information SA that it was their practice to remove obsolete Acts from stock so that, as Reprint 6 of the Mining Act went on sale on 17 June 1996, it would not have been possible for anyone to buy a copy of Reprint 5 between 18 July 1996 (the date of the Senior Warden’s order) and 12 August 1996 (the date of the respondents’ appeal to the Supreme Court). Mr Lambert, in his next affidavit, acknowledged that it was Information SA where he bought the Mining Act. He believed that Information SA was next door to the Resource Centre in Grenfell Street. He said he went to Information SA with Mr Simnovec on 22 May 1996 and Simnovec bought the updated reprint of the Mining Act and Regulations and other relevant legislation, and Mr Lambert exhibited to his affidavit a photocopy of Information SA’s receipt of 22 May 1996 for the purchase. How the factual issues on this dispute should be dealt with was raised by the appellant on the callover before the Chief Justice on 3 December 1997 when the appellant was told that, if he wanted to pursue his application to call evidence on the matter at the hearing of the appeal, he would need to file affidavits from the intended witnesses by 12 December 1997. No such affidavits were filed but the appellant asked us at the hearing of the appeal to adjourn the matter so that the witnesses could be called to give oral evidence in support of his claim that the extension of time was granted in the ERD Court on a false affidavit. The appellant made it plain that he did not accept Mr Lambert’s explanation. There was no discussion before us as to the procedure to be followed in attacking a judgment of the ERD Court that was obtained and entered in an appeal to that Court that was only allowed to go forward because (it was said) it was supported by a false affidavit. The appellant’s failure to file his witness affidavits created a problem. In some cases an unrepresented appellant might be granted the indulgence of an adjournment, notwithstanding his failure to comply with pre-hearing directions, to enable him to get his evidence in order, but there was nothing to indicate that an adjournment in this case would, in the end, serve anyone’s interests. The application for an adjournment was refused. I approach the matter now on the assumption, implicit in the appellant’s submission to us, that the attack on the ERD Court’s order granting the respondents an extension of time may appropriately be dealt with by way of appeal against the ERD Court’s subsequent judgment. (Compare RSC 85.29.) As to that, it appears that Mr Lambert was careless in identifying the place where he or his client bought a copy of the Mining Act and also, it seems, about the date of the purchase, but there is nothing in the affidavits to persuade me that he is likely to have been dishonest. I am certainly not willing to find against him on hearsay evidence. Had he explained the position in his affidavit supporting the application for an extension of time as he did in his final affidavit in this Court, Judge Trenorden would no doubt have made the same order. I would reject this ground of appeal.
I turn to the merits of the appeal.
The mining leases in this case were granted pursuant to s34 of the Mining Act. Subsections (3) and (4) of that section provide -
Mining leases shall be of prescribed classes and subject to prescribed terms and conditions appropriate to each class.
A mining lease shall, in addition to such terms and conditions as may be prescribed, be subject to such additional terms and conditions (if any) as the Minister thinks fit and specifies in the lease."
Schedule C of the Mining Regulations 1972 set out a form of mining lease as authorized by s34. The printed form that was used for the three leases in question in this case differs from the Schedule C form that is contained in the 1972-1984 consolidation of the Mining Regulations, but I have not looked to see whether the form was worded differently at the time when the respective leases were granted in 1980 and 1982. No submission was made on the subject by either party on the hearing of the appeal.
The provisions of the leases that Judge Bowering considered to be decisive consisted in each case of its Annexure B. The annexure was not the same in each lease. I start my examination of the position with the first lease that was granted, namely, lease number 4830 dated 14 February 1980. This granted Mr Simnovec a lease of the described land for a term of two years for the purpose of mining minerals other than salt, gypsum, coal, extracted minerals and precious stones. The lease specified an annual rent of $100 and a royalty of two and a half per cent and continued - "And the lessee doth hereby covenant with the Minister in manner following that is to say :- ", and there followed twenty-three covenants imposing obligations relating to mining and other activities on the land. The following provisions are in point -
That the lessee will observe, perform and carry out the provisions of the said Act" [that is, the Mining Act 1971 as amended] "and regulations and the provisions of any Act for the time being in force relating to the use, enjoyment or occupation of mineral lands:
That the lessee further covenants as set out in the schedule annexed hereto and marked "B":
That if the lessee shall during the said term commit any breach of or shall fail to comply with any covenant condition or proviso herein contained this lease shall be liable to forfeiture in manner hereinafter provided:"
Clause 19 set out a procedure for investigating a breach or non-compliance with "any of the covenants conditions or provisos herein contained", with a possible consequence of forfeiture. Annexure B contained eighteen clauses in the form of undertakings or commands or prohibitions of which the most important for present purposes are -
not to commence or conduct any mining operations using mechanical or declared equipment until a development plan and rehabilitation programme and plan has been submitted to and approved in writing by the Chief Inspector of Mines.
not to vary the approved development and rehabilitation plan or programme unless such variation is approved in writing by the Chief Inspector of Mines.
to agree to a variation of the approved development and rehabilitation plan or programme as may be ordered by an Inspector of Mines in the interests of safety. Such variation shall be endorsed on the approved plan and programme by the Chief Inspector of Mines.
to conduct such geological, mining, metallurgical, marketing and other studies necessary to prove the feasibility of the deposit for commercial operation and to report all work undertaken to the Minister of Mines and Energy on a quarterly basis commencing with the date of granting of the lease."
The main provisions of leases 5011 and 5018, both granted in 1982, were basically similar to those of lease 4830. Annexure B of the 1982 leases contained the following covenants -
to prepare a ‘programme of works’ comprising maps, plans, sections and development and rehabilitation proposals or any one of these to a scale in accordance with the requirements by and to the satisfaction of the Chief Inspector of Mines for his approval prior to commencement of mining operations.
to comply with the approved ‘programme of works’ to the satisfaction of the Chief Inspector of Mines.
to comply with any variation of the approved ‘programme of works’ in the interest of safety, as may be ordered by an Inspector of Mines."
It is convenient at this stage to set out again subreg(4) of reg57 -
"Mining Lease:
Immediately upon receipt of advice of the grant thereof, a mining lease shall be worked:
(a) by not less than one able-bodied man diligently mining for minerals other than precious stones provided for in the lease for a total of not less than 100 hours per calendar month; or
(b) as may be specified in the lease; or
(c) be worked in such manner as may be approved by the Minister."
Judge Bowering was of the opinion that the Annexure B clauses of each form of lease specified a "manner" of working the lease that overrode par(a) of reg57(4). Any programme for the "development" of the site could be expected to include the manner in which it would be worked, and that might well embrace the subject of the minimum hours to be worked.
"Leaving aside, for the moment, the differences between the annexures to the leases, it is clear that annexure B to each of the leases envisages the preparation of a programme relating to the development and rehabilitation of the leases by the lessee for submission to and approval by the Chief Inspector of Mines. Although the term "programme" is not a term of precision, a programme, general speaking, involves a plan of future events - what will be done, when it will be done and, sometimes, how it will be done. It seems, at least to me, not unreasonable to assume that, in some cases, compliance with the approved programme of works may involve work substantially exceeding that which would be done by "one able-bodied man diligently mining for minerals for a total of not less than 100 hours per calendar month." As I construe the provisions of subregulation 57(4), the labour or working conditions set out in such a programme override the requirements found in subregulation 57(4)(a), which requirements involve not merely 100 hours of labour but also include a "modus operandi".
His Honour went on to consider the position in the event of a lessee failing to submit any programme of works for the approval of the Chief Inspector as would seem to be required by the Annexure B schemes. He considered that this would make the lessee guilty of a breach of a covenant of the lease - identifying the time the breach occurred might be a difficulty, he thought - but it would not without more make the one hundred hours requirement of reg57(4)(a) applicable to the lessee. That would depend on the terms of the lease itself. With respect to these particular leases the learned Judge said -
"In this case, the developmental and rehabilitation programme was not submitted until December 1987. It was submitted on behalf of the lessee by Conquest Mines N.L. and related to all of the leases. It was approved on 17th December, 1987. Although the evidence presented in the Warden’s Court indicates that at least some of the work in the programme was undertaken, the extent to which the programme has been complied with is far from clear. It may have been fully complied with. The Warden made no finding on that issue - indeed, the programme was not placed before him.
The question of whether the labour conditions specified in the mining lease prevail over the 100 hours requirement in Regulation 57 depends, of course, upon the wording of the covenants in the lease. The covenants in the leases in this case are set out earlier in this judgement. As far as leases 5011 and 5018 are concerned, the programme of works must be both submitted to and approved by the Chief Inspector "prior to the commencement of mining operations." With respect to lease 4830, the obligation is "not to commence or conduct any mining operations using mechanical or declared equipment" until the programme has been so submitted and approved. The terms of these covenants do not lie easily with the requirement, which takes effect "immediately" upon receipt by the lessee of advice that the lease has been granted, that the lease be worked by not less than one able-bodied man diligently mining for minerals for a total of not less than 100 hours per calendar month. The practical effect of the covenants is that the lessee of the leases under consideration cannot commence mining operations - which term includes both prospecting and exploring for minerals - until the programme has been approved, which, in the case of these leases, was not until 17th December, 1987. If the lessee complied with the 100 hour labour requirement prior to the approval of the programme, he would be in breach of the covenants in the lease. In my view, the covenants express an intention that the programme of works shall prevail over the 100 hours specified in the regulation.
For these reasons I have come to the conclusion that the 100 hours labour condition, specified in subregulation 47(4) of the Mining Act, does not and never has applied to these Mt Grainger mining leases.
What then is the situation? These proceedings commenced before the Warden’s Court pursuant to Section 70 of the Act, the relevant parts of which are set out earlier in this judgement. That Court can only make a recommendation for forfeiture of a lease if it is satisfied "that the requirements of this Act in relation to the lease have not been complied with in a material particular and that the matter is of sufficient gravity to justify forfeiture of the lease". The Warden found that Mr Simnovec has failed to comply with a requirement of the Act in relation to the Mt Grainger leases, namely the 100 hours labour condition specified in subregulation 57(4). Whilst I think that the Warden’s finding on that issue was well founded, I do not think that the 100 hours labour condition has ever applied to these leases. Thus, the Warden’s finding on that issue does not constitute a basis upon which the Warden’s Court could have been satisfied that the requirements of the Act have not been complied with in relation to the Mt Grainger leases."
In short, if the respondents were in breach of a term or condition of a lease, the Minister could move to suspend or cancel the lease under s41 of the Act, but compliance with the terms or conditions of a lease was not a "requirement" of the Act within the meaning of s70. The forfeiture provisions of that section therefore had no application to any such non-compliance. Accordingly the lessees’ appeal was allowed and an order made that no recommendation should be made to the Minister that the leases be forfeited.
I agree with what the learned Judge has said about the effect of sheer inaction on the part of a lessee with respect to covenants of this kind. Take the case of lease 4830. Its Annexure B covenants did not specify a time by which the respondents should submit a development plan and rehabilitation programme and plan to the Chief Inspector of Mines, nor indeed did it say by whom the document or documents should be submitted, but the implication of clause 7 was that this would be done by the lessee and, I should think, having in mind the provisions of reg57, done within a reasonable time. The evidence suggests that no such programme or plans were submitted until 1987 and that the Department did not do anything prior to that to enforce the covenants in this respect. There may be a question whether the manner of working the mine, in particular with respect to minimum hours worked, was "specified" in the lease, as contemplated by reg57, when the annexure simply sketched out a procedure by which a development plan would be created. The point was not argued and probably it does not matter, because subs(4) of s34 of the Act would seem to provide sufficient authority for the covenants in question. (It is true that subs(4) speaks only of "terms and conditions", not covenants, but that last expression is frequently used to describe the terms and conditions of an agreement and not merely promises made in a deed. Compare clause 19 of this lease.) If there was any inconsistency between the lease provisions and par(4)(a) of reg57, with respect to minimum hours to be worked, the lease provisions prevailed.
So clause 7 of lease 4810 forbad mining operations using mechanical or declared equipment until the programme and plans had been submitted and approved. The expression "mining operations" is defined in s6 of the Act to mean
"all operations carried on in the course of prospecting, exploring or mining for minerals, or quarrying, and includes operations by means of which minerals are recovered from the sea or a natural water supply, but does not include fossicking "
Strictly speaking, clause 7 did not stop the lessee mining on the land by means of a pick and shovel, but I think the learned Judge was right when he looked to the practical effect of clause 7. There would be many mining leases, I expect, where a lessee could not practicably and profitably mine without the use of mechanical equipment, and that appears to be the case with this particular gold mine, The lease must have been drafted with that in mind. I would interpret clause 7 as saying that the lessee was free to do a bit of construction or other work by means of hand tools if he wished, pending the Chief Inspector’s approval of his programme and plans, but that otherwise he must not begin mining operations until the approval has been granted. On that view of the matter it was not legally open to these respondents, in the period between 1980 and 1987, to work the mine on lease 4810 for at least one hundred hours a month as reg57 generally requires. This appears to have been the consequence of their own dilatoriness in putting in a development proposal, aided by a lack of official supervision. Be that as it may, while the respondents may have been in breach of the implied terms of clause 7 of the lease, and therefore at risk of an attack on the lease under clause 17, they were not in breach of par(4)(a) of reg57. As the appellant’s case against them as to lease 4810 depended upon his proving a breach of that paragraph, it followed that his plaint could not succeed, at least with respect to the period prior to 1987.
An analysis of the differently worded Annexure B clauses in leases 5011 and 5018 produces the same result. It seems clear that the qualifying phrase in clause (2) of the annexure, "prior to commencement of mining operations," relates to the approval of the programme and not its preparation. The prohibition on commencing mining operations before approval is expressed in a less peremptory fashion than in the case of lease 4830 but the effect is the same. Indeed, the 1982 annexures realistically abandon the words "using mechanical or declared equipment" that, at least in form, limited the mining operations that were forbidden in the 1980 annexure prior to the Chief Inspector’s approval. In short, there is no significant difference between the two forms of annexure that is relevant to these proceedings. The appellant thus failed to make out his case under reg57, for the period 1982 to 1987, with respect to leases 5011 and 5018 as well as lease 4830.
What of the period between 1987 (when, Judge Bowering found, a development programme was approved) and the filing of the plaint notes in 1996? Whether the one hundred hours provision applied here depended, in my opinion, on the terms of the development programme that the Chief Inspector approved. (The programme terminology is not the same in the two forms of Annexure B but the differences are not, I think, significant.) Where the manner in which a lease is to be worked has been approved by the Chief Inspector he may well specify the rate at which the work has to be done. Alternatively, the programme he has approved may be silent on that subject, thus raising a question whether the approval does not by implication adopt the operation of the one hundred hours provision in reg57. It would not appear to be a matter of practical importance in this case.
The development programme that the Chief Inspector approved on 17 December 1987, and to which Judge Bowering referred, is included in the appeal papers. It was received in evidence by his Honour on the hearing of the appeal and marked Exhibit A1. (In fact, it has the designation "Exhibit No. MFI A1," but that appears to be a mistake.) It was tendered by Mr Lambert. It had been lodged with the Chief Inspector by Conquest Mines NL, evidently on behalf of the respondents and others, and is dated 14 December 1987. It related to a number of mineral leases in the area including those that are the subject of this appeal. It was headed, "Developmental and Rehabilitation Program." The following passages are taken from it -
"This communication relates to a program whose objective is to test the auriferous potential of the Mt. Grainger and Dustholes leases. A submission regarding the first phase has already been lodged with you (cf. Drilling Proposal, 11/12/87), C.H.H. Conor).
This submission refers to the second phase of the sampling program which requires that bulk samples be taken. Maximum bulk sample size will approximate 4 tonnes, with samples coming from 10 sites. Some of these sites are already trenched, but will require extending. Figures 3.1-3.3 show the provisional sample sites.
Please note that the scale of operation is small relative to a true mining situation.
This proposal relates to the initial collection of samples, which will be stockpiled. Information regarding the third stage of the program will be forthcoming when details of treatment are finalised.
WORKING HOURS
Work time will be limited to daylight, with contractors expected to work 8-10 hour days, 6 days per week. The duration of the bulk sampling program is expected to be one to two weeks.
The scale of operation is too small to cause significant erosional problems.
Prior to treatment, a suitable dam will be constructed to contain tailings and the like. Treatment will be the subject of a further development and rehabilitation submission, which will be forwarded once details are finalised.
It is the objective of Conquest Mines NL to test the gold-bearing potential of the Mount Grainger and Dustholes leases. Assurance is given that all work will be carried out properly, and that the site will be returned to a suitable state at completion of the program."
A stamp on the cover of the document indicates that it was approved by the Chief Inspector of Mines on 17 December 1987.
It will be seen, if one takes the document at face value, that this was not meant to be a programme for the commercial working of the site. It covered only a small part of the sort of mining operations that would be necessary if the leases were to be usefully exploited. A programme for drilling had evidently been lodged a few days earlier, and the proposal for bulk sampling was expected to take only a week or two in order to test the potential of the leases. The express provision for working hours plainly replaced reg57, at least for the bulk sampling period. The proposal contemplated a third stage of the programme relating to treatment. It is, I think, implicit in the document that a further development and rehabilitation programme - perhaps more accurately, a further section of the one programme - would be lodged, as the circumstances required, after the sampling project had been completed. This, it seems, was never done.
In my opinion, Exhibit A1 was a programme, or part programme, of the kind contemplated by the lease annexures. Work done under the December 1987 proposal would constitute mining operations and would, at least for the stipulated period, replace the reg57 labour requirement, but, in my view, its operation went further than that. By approving Exhibit A1 the Chief Inspector impliedly approved the development of the leases in stages. I think that had the effect of the supplanting reg57(4)(a) altogether. Thereafter any labour conditions would be specified in the development programmes themselves. If, as Judge Bowering took to have been the case, no further development and rehabilitation programmes were lodged thereafter by or on behalf of the respondents, that might lay them open to proceedings under s41 of the Act, but not under s70. In particular, so far as these proceedings are concerned, the respondents’ failure to work the leases did not make them vulnerable to attack for non-compliance with reg57. It follows, on this view of the matter, that the appellant fails in his appeal with respect to the period after 1987 as well as the period before it.
There is a possible evidential qualification to the opinion I have just expressed, but before I deal with it I should say something about the points that the appellant made in his written appeal argument, supplemented by his oral submissions.
The appellant, understandably, emphasized the evidence that showed that the respondents had done very little work on these leases when judged against the long period over which they had enjoyed possession of the land. That is a point that weighed heavily with the Senior Warden, and very properly so. However, the respondents’ failure to comply with the one hundred hours rule does not matter, so far as these proceedings are concerned, on the view of the law that Judge Bowering took and with which I substantially agree. It is unfortunate for the appellant that the legal hurdle which he was unable to surmount enables the respondents, at least in these proceedings, to avoid the consequences of their chronic inaction and dilatoriness, but there is nothing that we can do about that. The appellant based his case in the Warden’s Court, as foreshadowed by his plaint notes, on the respondents’ failure to comply with the labour requirements of subs(4)(a) of reg57 and he cannot in this Court seek to present a fundamentally different case.
The appellant drew our attention to a variation that was made to lease 4830 in 1996 whereby a new clause 18 was inserted, requiring the lessee to submit a works programme and works schedule annually and to make six-monthly reports describing progress against the objectives described in the current works programme and work schedule. The substituted clause 18 was not in operation during the period in respect of which the appellant was complaining, but at any rate the clause, and any possible failure of the respondents to comply with it, could not have any bearing upon the issues that the learned Senior Warden was required to decide.
That brings me to the evidence point.
I have already observed that the Senior Warden knew nothing about any developmental and rehabilitation programme for these leases and, neither, it seems, did the appellant. He could hardly be blamed for that. An examination of the leases in question held at the Mining Registry would have shown a number of endorsements on the leases of transfers, amalgamations, renewals, and so on, including interestingly approvals to work twenty-five hours per month in specified periods, but with no mention of the Exhibit A1 approval or of any other approval of a like kind. It is not obvious how an interested outsider such as the appellant could discover in any given case whether a lessee was meeting his Annexure B requirements and, as the Senior Warden observed, it is an important policy of the Act that rival claimants should be able to pursue lessees who neglect their lease obligations. In this particular case, specific information about Exhibit A1 emerged for the first time when Judge Bowering had the matter before him listed for hearing again and arranged for Mr Wildy, who was Manager of the Mining Policy and Mineral Registration Branch of the Department of Mines and Energy, to attend the hearing. In the course of a discussion in which Mr Wildy explained his Department’s policy about reg57, the learned Judge indicated that it was his understanding that no development programme for these leases had ever been submitted for approval. At that point Mr Lambert intervened to say that many detailed reports of development work had been lodged, "and in fact several programmes have been lodged, the last of which was a development and rehabilitation programme lodged by Conquest Mines on 14 December 1987." Mr Lambert then tendered the document that became Exhibit A1. In his reasons for judgment the learned Judge said, as I have indicated, that "the developmental and rehabilitation programme was not submitted until December 1987," and his reasoning proceeded on that footing. However, that was contradictory of Mr Lambert’s statement to the learned Judge that, in fact, several programmes had been lodged. The discrepancy was not taken up by either the appellant or the respondent on the hearing of the appeal in this Court; nor was any complaint made about the receipt of additional evidence in the ERD Court at the appeal stage. However, I am satisfied that no useful purpose would be served in these proceedings by exploring those matters further. No matter how many development programmes there may have been prior to the short-term programme that was approved in December 1987, and whatever their terms may have been, and whether indeed any of them was ever approved by the Chief Inspector, it is most unlikely that they could assist the appellant in the case that he brought against the respondent in the Warden’s Court under reg57.
In my opinion the appeal must be dismissed.
Mullighan J
I agree that the appeal should be dismissed for the reasons given by Cox J.
Williams J
I agree.
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