Williams v Silver Peak Mines Limited - [1915] HCA 83

THE SILVER PEAK MINES LIMITED

RESPONDENTS.

AND ANOTHER

PLAINTIFFS AND DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Mines-Mining lease-Determination by Crown-Conditions upon which power to

determine arises-Evidence-Notice published in Government Gazette--Requisites of notice- Purporting to be signed by the Secretary for Mines " - Description SYDNEY,

of person signing notice-Declaration of forfeiture by Governor-Proclamation Dec. 7, 8, 16.

Regulation-Validity-Ultra vires-Mining Act 1874 (N.S.W.) (37 Vict. No. 13), secs. 56, 59-Mining on Private Lands Act 1894 (N.S.W.) (57 Vict. No. 32), sec. 34-Mining Act 1906 (N.S.W.) (No. 49 of 1906), sec. 124-Regula- tions under the Mining Act 1874 of 27th February 1885, regs. 31, 43.

Sec. 56 of the Mining Act 1874 (N.S.W.) provides that "The Governor may grant leases of any Crown land for the purposes of mining for any metal or mineral other than gold subject to the following conditions On the breach by the lessee of any condition of a lease the Governor may direct the cancellation of such lease." Sec. 59 provides that 66 The Governor may make and proclaim regulations for carrying this Division of the Act into full effect SO as to provide for all proceedings forms of leases and other instruments for the working of mineral lots

and all other matters and things arising under and consistent with the provisions of this Act and not herein expressly provided for And all such regulations shall upon publication in the Gazette be valid in law Provided that copies of every such regulation shall be laid before both Houses of Parliament within a limited time.

21 CLR 41

By reg. 31 of the Regulations under the above Act published in the Gazette on 27th February 1885, the form of a mineral lease was prescribed, and it was provided that the lease should contain the covenants, reservations and exceptions set forth in a form in the Schedule and such others as the Governor might direct. Reg. 43 provided that if the Governor with SILVER PEAK the advice of the Executive Council should direct that any lease be cancelled MINES LTD. the Secretary for Mines (the Minister administering the Department) should forthwith publish a notice in the Gazette to that effect, describing accurately the lease referred to, and continued Such notice shall be con- clusive evidence in all Courts of law, or other judicatures, of such declaration having been made and that such

Semble, per Griffith C.J. and Gavan Duffy J., that reg. 43, in SO far as it pro- vides that " such notice shall be conclusive evidence in all Courts of law " &., is ultra vires the power conferred by sec. 59; per Isaacs J., that its validity is doubtful.

Sec. 34 of the Mining on Private Lands Act of 1894 (N.S.W.) provides that Every lease granted under the authority of this Act shall contain a pro- vision that if the lessee, his executors, administrators, or assigns fail at any time during the term of such lease…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [1915] HCA 83
Decision Date: 16 December 1915

CaseChat Overview and Summary

The plaintiffs, Silver Peak Mines Limited, appealed from a decision of the Supreme Court of New South Wales concerning the validity of the cancellation of several mining leases. The dispute centred on whether a notice published in the Government Gazette was sufficient to legally terminate these leases, which were granted under different provisions of the Mining Act 1874, the Mining on Private Lands Act 1894, and the Mining Act 1906. The plaintiffs sought a declaration that the notice was ineffectual and that their leases remained valid.

The High Court was required to determine several legal issues. Firstly, it had to consider whether Regulation 43 of the Regulations under the Mining Act 1874, which provided that a notice of cancellation published in the Gazette would be conclusive evidence of such cancellation, was valid and within the scope of the Governor's power to make regulations under section 59 of that Act. Secondly, the Court had to ascertain whether the specific notice published in the Government Gazette on 7th June 1915, which stated that certain leases had been "cancelled for non-fulfilment of the labour conditions," sufficiently indicated that the cancellation was effected by the Governor in Council and that it purported to be signed by the Secretary for Mines, as required by the terms of the leases themselves. Finally, for the lease granted under the Mining Act 1906, the Court had to consider whether a proclamation of cancellation was a necessary prerequisite for its termination.

The Court's reasoning varied among the judges. Griffith C.J. found that the notice sufficiently indicated the lease had been declared void by the Governor in Council and purported to be signed by the Secretary for Mines, and that the evidentiary provision in Regulation 43 was valid. He concluded that the leases under the Mining Acts of 1874 and 1894 were validly cancelled. However, Isaacs J. and Gavan Duffy J. disagreed. Isaacs J. held that the notice did not sufficiently indicate that the Governor in Council had made the declaration and that it did not purport to be signed by the Secretary for Mines. Gavan Duffy J. found that the lease was not lawfully determined. The majority, therefore, held that the lessees of the leases under the Mining Acts of 1874 and 1894 were not precluded from disputing the validity of the cancellation. Furthermore, all judges agreed that for the lease under the Mining Act 1906, the absence of a proclamation of cancellation meant the lessees were not precluded from disputing its validity.

Consequently, the High Court, by majority, allowed the appeal in part. It was held that the lessees of the leases under the Mining Act 1874 and the Mining on Private Lands Act 1894 were not precluded from disputing the validity of their cancellation. For the lease under the Mining Act 1906, it was held that the lessees were not precluded from disputing its validity in the absence of a proclamation of cancellation. The Court substituted an order reflecting these findings.

Orders