Willie & Ors v Crisal Pty Ltd

[1988] HCATrans 123

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P22 of 1987

B e t w e e n -

RUDOLPH WILLE, ANTHONY BASIL
BERRYMAN, KEVIN MARTIN ROSS,

REBKIN PTY LTD, TREVOR JOHN DELROY

and KENNETH BRIAN THOMAS

Applicants

and

CRISAL PTY LTD

First Respondent

CROCKER CONSOLIDATED PTY LTD and

TECTONIC SYSTEMS PTY LTD

Second Respondents

MINISTER FOR MINERALS AND ENERGY

Third Respondent

THE MINING WARDEN OF THE PILBARA

AND THE WEST PILBARA MINERAL FIELDS

Fourth Respondents

Wille(2)

Application for special leave to

.MASON CJ	appeal
DAWSON J TOOHEY J
TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 JUNE 1988, AT 2.47 PM

Copyright i:,. the High Court (\-F_ A,rnt-r;:i.J i_;:i

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MR A.M. GLEESON QC:  May it please the Court, in this matter I

appear with my learned friend, MR A. SIOPIS, for the

applicants. (instructed by Messrs Parker & Parker)

MR R.J. ANDERSON, QC:  If the Court pleases, I appear with my

learned friend, MR M. WORKMAN, for the first and

second respondents. (instructed by Messrs Pullinger

Sanderson & Workman and Alan Mizen)

MR GLEESON:  Your Honours, there are really cross or competing

applications. We have, as it were, a part-heard

application for special leave to appeal and there is an

application that our application be dismissed and that

an injunction that has been granted on an earlier

occasion also be dissolved. This matter was left in

this state pending - - -

MASON CJ:  Mr Gleeson, perhaps I ought to take you up on a

statement you just made. You say it is a part-heard

application. You will have recognized there is a face

missing and there is a new one here.

MR GLEESON:  Yes, I did not mean that anything turns on the

membership of the - - -

MASON CJ: No, no, but we ought to make it clear, I think, that

we regard the application as, in effect, being re-presented

by the applicant rather than treating this as a continuation

of the previous hearing.

MR GLEESON: Yes, and we had so regarded it, Your Honour.

DAWSON J: But I have read the transcript of the previous

proceedings.

MR GLEESON:  I see, thank you, Your Honour. I think I should

hand to Your Honours five copies of the decision in

HUNTER RESOURCES V MELVILLE.

MASON CJ:  I think we each have a copy.

MR GLEESON:  I see. It was to allow - - -

TOOHEY J: Could we settle for one, thank you.

MASON CJ: Yes, we will settle for one.

MR GLEESON:  It was to allow a reconsideration of the matter in

the light of the decision in that case.

MASON CJ:  Mr Gleeson, are you going to refer to the pamphlet

copy or to the judgment in the Australian Law Journal Reports?

MR GLEESON:  The judgment in the Australian Law Journal Reports.

MASON CJ: Well, I have a pamphlet copy but I can follow it as you

refer to it.

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MR GLEESON:  May I remind Your Honours of the facts and the

issues as they now stand. The facts are, really,

terribly simple. And I invite my learned friend to

interrupt me if I get these wrong because he knows
more about them than I do, but as I understand it
what went on before the Mining Warden was that there

was an application by my learned friend's clients

for a prospecting licence. My clients sought leave

to object out of time on the ground that there had
not been a proper pegging out. The Mining Warden

dismissed the application for leave to object out of

time and then, without anything further occurring and,
in particular, without hearing any evidence or argument,

simply granted the application.

So that the application for a prospecting licence

was granted without, as we would submit, a hearing.

The applicant did not give even the most formal evidence

of compliance with the marking-out requirements.	The
Mining Warden simply noted that the application was

made and in the light of his previous decision not to

allow my clients to object, granted it.

MASON CJ:  Your clients applied for an exploration licence of an

area that included the area, the subject of the

prospecting licence.

MR GLEESON:  Yes, and it was excised from our exploration licence.

MASON CJ: And what you are really seeking to achieve is the

issue of an exploration licence without that excision?

MR GLEESON:	Yes, Your Honour. Now, the two issues that arise in those circumstances are these - and the second of them
is capable of being subdivided into two. The first issue
is whether or not the conduct of the magistrate in
relation to the way in which he dealt with the application
for the prospecting licence satisfied the requirement
that he hold a hearing into the application and
satisfied what we submit - and it is contested - is the
requirement that he consider the question and ask for evidence on the question whether there had been a proper pegging out.

If the answer to the first question is no, in other

words, if the magistrate behaved in a manner in which he

was entitled to behave, that is the end of it. We fail.

If the answer to the first question is that the magistrate

did not do what he should have done, then the second

question that arises is whether or not the deficiency -

if I could use that neutral term - is cured by the provisions of section 116(2). And that raises two

questions: first of all, whether what occurred is an
informality or irregularity and, second, whether
section 116(2) only protects successors in title of

the grantPP of the prospectjn~ li<'A.n.f'P 0r. f'lpPr~.tP<"\

directly to protect the position of the grantee of the

prospecting licence.

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MASON CJ:	On the second of those questions, at
ieast, would not four of the judgments or four members of
the Court, more accurately, in HUNTER RESOURCES be against you with the possibility that the fifth might
conceivably because, as I understand it, Justice Toohey
did not specifically advert to the question or he had
a reservation that would have excluded - - -

MR GLEESON: Well, what Mr Justice Toohey said appears on

page 99 of the Australian Law Journal Report. In
the left-hand column against the letter C His Honour

said:

The "indefeasibility" provision of the Act

(s 116(2» protects a person dealing with a

registered holder of a tenement.

And then in the right-hand column said:

There is no section corresponding with

the Torrens System provision whereby the

registered proprietor holds free of any

unregistered interest other than those

expressly mentioned in the section. It

should not be assumed therefore that

registration of the original grant cures any

defects in the application leading to the

grant. But it is unnecessary to express a

view on that matter.

It would be our respectful submission that what was said by the other members of the Court does not

constitute an expression of a concluded view on the

matter that is directly relevant to our case but it is

true that other members of the Court referred to the

operation of section 116(2) without, as it were, introducing

the qualification to be found - or the possible

reservation to be found in that paragraph.

MASON CJ: And they were discussing it a context where there was

no relationship with a third party at all. They were

discussing the possible application of the section to

the issue of a licence in which there was no possibility

of third party interest at that stage.

MR GLEESON:  Yes. Of course, the other difference in the context

was that they were not considering it in a context of

any irregularity in the procedure before the magistrate, the relevant irregularity was in the actual pegging out.

MASON CJ: Yes.

MR GLEESON:  On the first subheading of what I have called the

second question, could I hand Your Honours JAMES V

the FEDERAL COMMISSIONER OF TAXATioN?

MASON CJ: This is on the irregularity point?

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MR.GLEESON:  Yes, informality or irregularity. I must say I

was only reminded of this because of the argument

that occurred recently in KLEINWORT BENSON V CROWL,
the bankruptcy case, but this is 93 CLR 631 and the

passage on which I rely is the passage on page 644

where it is said:

The court cannot inquire whether the debtor

has in fact been misled or not.	In this case
it is probable that he was not misled.	It is
sufficient that he could be misled.	But

strict compliance with the requisites of a

bankruptcy notice is essential to its validity

and in these two respects the bankruptcy notice
does not comply with these requisites. The

defects cannot be regarded as formal defects or irregularities. They are breaches of important provisions of s. 53.

And that is the contrast that the Court draws which throws some light, in our respectful submission, upon the meaning

of the words "informality" or '·'irregularity". Now, if we are right in our first submission, what occurred in the present case was that the Mining Warden failed to

conduct a hearing.

On the question of conducting a hearing by mining wardens, could I also hand Your Honours copies of a

decision of the Court in relation to a statute of

Queensland, that is, SINCLAIR V MINING WARDEN AT MARYBOROUGH,

132 CLR 473. I hasten to acknowledge that there were differences between the Queensland Mining statute and

the Western Australian one and, indeed, what the Western

Australian statute provided for is what I gather from

some remarks in argument on the last occasion might have

been the old situation in Western Australia, that is,

where the ijining Warden made a recommendation to the

Minister rather than granting it directly.

The actual issues in this case relating to grounds

of objection and so forth are not relevant but on

page 481 the Chief Justice said, a little over half-way

down the page:  I would therefore allow the appeal and

grant a writ of mandamus to the warden requiring

him to hear the applications and the objections

according to law on two grounds: first, that

the warden failed to appreciate that, in order to

warrant a recommendation of acceptance of the

applications, it was not enough that the
formalities for application had been observed.

It was essential that there be material before

him, quite apart from any objection, which would

warrant an affirmative conclusion on the

sub8t~1ce of the applications thRt th~

recommendations should be made. This, at the

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least, required that he be satisfied that

the areas applied for held mineral, and that

no greater area was recommended than was

reasonably necessary for the efficient

extraction of the mineral -

and so forth.

DAWSON J: There is provision, of course, in this Act for the

mining registrar to grant an application as of course

where there is no objection,without any hearing.

MR GLEESON:  Indeed. As to that, we would respectfully adopt

as part of our argument what Mr Justice Toohey said

about section 40(4), that is, that it is a provision

whose presence was argued to be inconsistent with the

conclusion reached by the majority in HUNTER RESOURCES
but it is an anomalous provision and its existence in

the Act should not be treated as carrying with it any

particular consequences in relation to the other

provisions of the Act. As I would understand what was argued in HUNTER RESOURCES, the power of the registrar to proceed in that way was relied upon by counsel for

the unsuccessful party as an indication of the merit

of his argument.

Now, it is true that in HUNTER RESOURCES one member

of the majority, Mr Justice Wilson, at page 93D said:

the Act does not impose a duty of inquiry upon

the warden or, in the case of an application

coming under s 40(4), the mining registrar. In

the absence of any objection as to compliance,

..... the issue does not arise.

That, in our respectful submission, was left open by the

other members of the majority. It would be our submission

that if one begins with the point that was established by

the majority in HUNTER RESOURCES, that is to say that

strict compliance with the marking-out requirements is

necessary and then, bearing that in mind, one looks at

the words of section 42 which provides that:

An application for a prospecting licence

shall be heard by the warden in open

court -

in our respectful submission, it is not a fulfilment
of the warden's obligation if he simply, to put it bluntly,

rubber stamps the application without even requiring

an applicant to say in the most general and formal way
that he has complied with the marking-out requirements.

Now section 40(4), we submit, is a special and

anomalouc provision but it would-be the ca~~ that we
would seek to make out, if granted special leave to

appeal, that it follows from the importance which

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HUNTER RESOURCES LTD attaches to strict compliance

with the requirements of marking out and the warden's

obligation to hold a hearing that he has got to look

at that question.	We would respectfully repeat an argt.m=nt
that we have	put on the earlier occasion, it would

be a very strange thing if the warden could decide

whether or not he would call for evidence on that

subject depending upon how busy he was on the day

in question or whether he felt like it or not. One

of the difficulties with the judgment of the Supreme

Court of Western Australia is that it lays down no

guidance as to what a warden is supposed to do. They

may have different practices. Some wardens may require

people to give general evidence that they have complied;

some may, I suppose, require people to file a statutory

declaration; some may even go so far as to actually

ask what the marking out was, in other words, require
the applicant to say in detail what he did by way of

marking out and, of course, there is a power in the

warden, if he decides to exercise it, to call for a

report. I am not suggesting that there is an obligation

on the warden to call for a report but there is, in our

submission, an obligation to call for evidence on the

subject. And, of course, if, in the present case,

my clients were correct in the proposition they were

seeking to advance in their objection that the area had

not been properly pegged out at all, presumably, if

that were correct and if the magistrate had called for

evidence, the application would have failed because the

applicants would not have been able to give evidence of

that subject. That, of course, is a question of fact.

But we would submit that the Court should not

leave the Act in the position where it is, as it were, up to the individual magistrate to decide for himself,

depending upon the exigencies of the situation, whatever

they might be, whether or not, in the case of an

uncontested application, he will require the applicant

to prove that he has complied with the marking-out

requirements.

DAWSON J: Could he refer it back to the mining registrar?
MR GLEESON:	The present case, incidentally, Your Honours, could

not have been dealt with by the mining registrar for

certain reasons which produced the consequence that it

did not fall within section 40(4). We do not understand

Mr Justice Wallace in the court below to have suggested

otherwise but understand his proposition to have been

the power in the registrar to deal with it as an

indication of the true construction of the statute.

Regulation 68 says that:

Prior to making a reconnnendation or granting

an a~nJ.ication the war.den may obtain a report
from the director, geological survey, cne

State mining engineer or any other officer of the Department.

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DAWSON J: No, I had in mind, refer it back to the mining

registrar to deal with it.

MR GLEESON:	I see.
DAWSON J:	Who would then deal with it without hearing any

evidence.

MR GLEESON:  Yes. As I understand it, he could not have done

that in the present case. The objectors were seeking

to contend in their objection that the necessary

factual basis for invoking that procedure did not

exist. Now, he did not allow them to object out of

time but whether he could have referred it to the

registrar might have depended upon that question of

fact in the instant case.

MASON CJ: What question of fact was that? I have not quite

identified what it was.

MR GLEESON: Section 40(4), in paragraphs (a), (b) and (c)

provides certain conditions precedent to the power in

the registrar to deal with the matter and

subparagraph (c) requires that:

(c) the applicant satisfies the mining

registrar -

that certain notices have been served. As I understand

it, there would have been an issue about that if he

had attempted to refer it to the registrar.

MASON CJ:	I see.
MR GLEESON:	Now, Your Honours, we submit that the decision in

HUNTER RESOURCES gives encouragement to the applicant

because the Full Court of the Supreme Court seemed to

deal with the present case upon the basis of an approach

to the significance or otherwise of compliance with the

marking-out requirements that commended itself to the
minority rather than the majority in the HUNTER RESOURCES

case. We submit that special leave ought to be granted.

MASON CJ: Yes, Mr Anderson.

MR ANDERSON: If the Court pleases, I do not wish to add very

much to the argument that has already been presented
to the Court in Perth. Your Honour Mr Justice Dawson

has indicated that you have read the transcript of that

argument. We say that nothing really has changed since

then except that the appellants' grounds of appeal

seem now to come down to, really, one ground only:

is the warden, in every case, bound to conduct an inquiry

into the way in which the tenements have been marked out?

Is he bound to do that even if _there is no contest?

TOOHEY J:  But is that really what the appeal is presently about_

or does it not move beyond? I mean, that certainly is the matter before the Court but is there not a further

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argument tha4 defects aside, the issue of a grant, as

it were, cures whatever defects or informalities there

may have been?

MR ANDERSON:  Yes. There are two types of defect which have been

identified. I think it is put against us that one

type is cured by section 116(2) and the other is not.

The defect in marking out is cured by section 116(2);

the grant will, under that section, cure the defect.

The grant is indefeasible.

The other irregularity or type of irregularity

referred to by my learned friend is the failure to

proceed to a hearing at all and as I understand his

arguments put against us, that if that is the kind of

irregularity that has occurred then there is nothing

in section 116 which would comprehend it. So that

a grant made without a hearing is not cured by

section 116(2).

Now, the first defect was fully argued in Perth; the effect of section 116(2) on the first type of

defect. Nothing in HUNTER V MELVILLE would give the

appellants any cause for comfort as regards that type

of defect. My understanding, of the judgments in

HUNTER V MELVILLE are that all of the Justices who

considered the point would say that - with the possible

exception of Your Honour Mr Justice Toohey - the first

limb of section 116(2) is sufficiently wide to comprehend

marking-out defects. So that if the ground is not

properly marked out, that is an irregularity leading

to a grant and is cured by section 116(2) upon a grant

being made.

It would seem to me, with respect, that perhaps

Your Honour Mr Justice Toohey, in Your Honour's reasoning

on this point, did not take account of the amendment to

section 116(2) when Your Honour said:

There is no section corresponding with the Torrens System provision whereby the

registered proprietor holds free of any

unregistered interest other than those

expressly mentioned in the section:

cf TRANSFER OF LAND ACT, s 68. It should

not be assumed therefore that registration of the original grant cures any defects in the application leading to the grant.

Your Honour took the view, I think, that section 116(2)

was confined to conferring indefeasibility upon the

derivative title, that is, upon the title obtained by

the third person.

1'12 TOOHEY J: Not nece::s::.aril/, Mr Ande:i:so~... ::: th.:.:·Ll: trLc point, ::-ightly

or wrongly, is that even with the amendment to section 116

there is no section in the MINING ACT which, as it were,

asserts in general terms that the holder of a registered

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interest holds free of any other interests that there

may be or of any imperfections in title. Now, that

proposition may be right or it may be wrong but I think

it goes a little further - or, at least, it does take

into account the amendment to section 116.

MR ANDERSON:  Yes.

TOOHEY J: In any event, you do not argue - well, perhaps you

do. What do you say about the proposition that

section 116(2) does not bear upon the failure of

the warden to carry out a hearing?

MR ANDERSON:  If the warden was obliged in the jurisdictional

sense to inquire into the sufficiency of the marking

out and failed to do so,so that he had failed to

invest himself with jurisdiction to make the ground,

we have to concede that section 116(2) would not

confer indefeasibility upon the grant which he then

made in excess of jurisdiction or in error of

jurisdiction. We say he was not obliged to do that.

The Full Court so decided and I think certainly four

of the Justices of this Court in HUNTER V MELVILLE
also were of the view that there is no obligation upon
the warden to embark upon an inquiry as to the

sufficiency of marking out and to satisfy himself

that marking out has occurred in compliance with the

Act and regulations.

If there is no obligation upon him to do so.

in the jurisdictional sense, then a failure to do so
cannot affect the grant. Maybe he should have done so
in the sense of proper conduct of the hearing but

unless he is obliged to do so such that if he fails

to do so he has no jurisdiction to proceed to grant,
then the fact that he did not do so cannot affect the

grant.

TOOHEY J: Well, in that sense section 116(2) is really

irrelevant, is it not? Because if he is not obliged

to conduct a hearing in order to ground jurisdiction,

then you do not need to rely upon section 116.

MR ANDERSON:  We do not rely on section 116 to meet the argument

that the warden was obliged to make an inquiry but we

do rely upon it to meet the argument that defective

marking out - - -

TOOHEY J: Yes. On the point that you are now addressing us,

section 116 really has nothing to say, you would say?

MR ANDERSON:	Yes.
MASON CJ: Well now, can you take us to the judgments and	--demonstrate to us that the judgments or at least the

judgments of four members of the Court support the proposition that there is no obligation to inquire

in a jurisdictional sense?

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MR ANDERSON: Yes, Your Honour.

MASON CJ:  And before you do that I ought to ask you this question,

I think:  do you dispute the proposition that if

satisfaction as to marking out is a condition precedent

to the power to grant a licence, that that is an

obligation in a jurisdictional sense?

MR ANDERSON:	Yes.
MASON CJ:	You do?
MR ANDERSON:	Do I dispute it?
MASON CJ: Yes.
MR ANDERSON:	No, I do not dispute it.

MASON CJ: You do not.

MR ANDERSON:  Using the Australian Law Journal Report, if the

Court pleases, I take the Court to page 91. This is the

joint judgment of Your Honour the Chief Justice and

Justice Gaudron.

MASON CJ: Yes. Well, the dissenting judgment would, of course,

support you on this point.

MR ANDERSON:  Yes.

MASON CJ: You may as well go to the other judgments, I think.

MR ANDERSON: Very well, Your Honour. His Honour Mr Justice Wilson

at page 93.

MASON CJ: That is the passage to which Mr Gleeson referred

when he said no obligation to conduct a hearing except

in the section 40(4) case.

MR ANDERSON:  The section 40(4) case is the case of the mining

registrar.

MASON CJ: Yes, that is right.
MR ANDERSON:	In the first column on page 93, His Honour

Mr Justice Wilson says, between lines A and B:

It seems to me that it is a necessary

consequence of these provisions that an

applicant for a prospecting licence
cannot, in the case of a contested
hearing of the application, be granted
a licence if he has not first marked out
the land in accordance with the Mining

Regulaticns 1981 (WA).

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If I can take you down to the next paragraph

between C and D:

It is of no moment that in the absence

of objection there may be no occasion for

the warden to satisfy himself as to

compliance.

His Honour seems to be accepting that there is no obligation to do so.

The requirement that the land be marked out

in accordance with the regulations applies

generally to every application for a

prospecting licence but the Act does not

impose a duty of inquiry upon the warden or,

in the case of an application coming under

s 40(4), the mining registrar. In the absence
of any objection as to compliance, there is

no question of priority under s l0SA of the Act to be determined and the issue does not

arise. In effect the Act draws a distinction

between contested and uncontested

applications. This may be explained as an

aid to certainty -

and so on. His Honour there is proceeding upon an

acceptance of the proposition that in an uncontested

application there is no duty to inquire and, of

course, we say this was, in effect, an uncontested

application.

If I can take you then to His Honour

Mr Justice Dawson's reasons, and I am not sure that

Your Honour Mr Justice Dawson actually dealt

specifically with this point but you do say at

page 95, second column at the top of the page:

The question is not whether the warden's

jurisdiction to entertain the first

respondent's application was conditioned upon

the first respondent's observance of the

marking-out requirements for it may be

conceded that it was not.

Now, we would say that, in other words, the warden may

grant, notwithstanding an irregularity in the marking

out, he has the power to do so but Your Honour approached
the case, HUNTER V MELVILLE, on the basis that the

correct question was if he declines to do so can it

be said that he did not proceed according to law?

Now, if the warden may grant, notwithstanding an

irregularity, the existence of an irregularity

does not condition his power to grant. We draw that

_f.,...,'")TI" vni,,· Honour Justice Dawson's reasons but you, as

far as I can recall, did not otherwise deal with the point.

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DAWSON J:  I think that appears from what I said at the

end:

even if the Act requires the fact to

be established, at least when the matter

is raised by way of objection -

which tends to leave it open.

MR ANDERSON:  Yes. Your Honour Mr Justice Toohey touched upon

the question of jurisdiction very briefly at page 97

in the second paragraph of Your Honour's reasons.

Your Honour said:

It is necessary at the outset to

identify precisely the question involved

in this appeal. The question is not whether the warden had jurisdiction to entertain the application of the first respondent for a

prospecting licence. Clearly the warden had

jurisdiction to deal with the application,

whether or not there had been a failure to

comply with a marking-out requirement.

At page 98, second column, the paragraph just below

letter E, Your Honour said:

Section 42(1) requires that an application

for a prospecting licence "be heard by the

warden in open court", with provision that a

person may object to the granting of the

application. Section 40(4), introduced by

amendment in 1985, contains a procedure

whereby in the case of certain Crown land the
subject of an application for a prospecting
licence, in the absence of objection,
"the approval of the warden to the grant of
the licence may be deemed to have been given".

In that event a licence may be issued by the

mining registrar. In such a case there
may be no occasion for the warden or the

registrar to consider whether the marking

out requirements have been met and a licence

may issue even though, for instance, pegs or

cairns have been placed -

and so on.

Consistency and clarity have not always been

a feature of mining legisltion in this

country and trying to reconcile various

provisions if often not fruitful. In any

event, I do not think thats 40(4) can be

prayed in aid of an interpretation that the

relevant marking out -requirement does not

condition the grant of a licence. The

legislature may have accepted that

applications for prospecting licences .....

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can live with a degree of informality

where there is no contest.

So that all members of the Court seemed to accept that

there is a distinction between an application which is

uncontested and an application which is contested.

Now, in my submission, HUNTER V MELVILLE stands against the applicants. It is authority that there is

no obligation on the warden where there is no contest,

no valid objection, to inquire into the sufficiency of

marking out. That is a result which we say

cormnercial reality, in any event, demands. As to the

question of whether there was a hearing, we say that

there was. The requirement for a hearing is to be

found in section 42(1) and what is meant by the
word "hearing" must be understood according to the

context in which that word is found and it simply means

that the warden cannot proceed to grant except in open

court. The warden, in this case, sat in open court.

He heard the parties on the matters upon which they wanted

to be heard. He determined those matters and he

proceeded to grant. There was no other function which

he was obliged to perform. Once there were no valid

objections before him there was nothing else for him

to do apart fromproceeding to grant. Everyone had an opportunity to be heard and that is all that is meant

by the word, in the context of this Act, "hearing" in

open court.

The suggestion of my learned friend that some

guidance should be given to wardens as to what they are

to do, as to what "hearing" means in the Act, itself

creates difficulties. Is it suggested that you should

require a formal affidavit to be filed saying, "I've

complied with all the formalities, all the regulations"?

Is it suggested that he should insist upon oral evidence

or to use the word used by His Honour Mr Justice Wallace,

himself conduct an audit of compliance with the

marking-out regulations? We say, no, that would be a

very inconvenient way of administering the MINING ACT

in respect of uncontested applications for two-year

prospecting licences. So there was no other function

which he was obliged to perform once he had overruled

the objections - dismissed them. He might have said

and did not - but he might have said in open court,

"I've read the application, I've looked at the map

which has been lodged; I've read the evidence that

pastoral lease owners have been notified; I've read

the statutory declarations or the letters or whatever
they may be; I've taken into account that a security

bond as required by the regulations has been filed;

I've read the evidence of advertising and in the absence of ?,ny valid objection I now proceed to grant." He

C'o~ild have .. said all thA.:!: but he did not. But there was

nothing, we say, left for him to do except to proceed

to grant.

S1Tl3/6/PLC 14 10/6/88

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DAWSON J: What is required, by the regulations presumably, to

validate the application?

MR ANDERSON:  To validate it, Your Honour?

DAWSON J: If that is the right word. What has to accompany

it -

MR ANDERSON:	A map.
DAWSON J:	You spoke of statutory declarations.
MR ANDERSON:	Yes, in the case of unoccupied Crown land or

Crown land which is occupied by graziers only or
occupied land, there must be some evidence of notification

to the owners. So that would accompany the application.

DAWSON J: Does there have to be any evidence of marking out at

all?

MR ANDERSON:  No, the map - the application form describes the

boundaries by datum and compass direction, the metes and
bounds, and it must be accompanied by a map on which

the boundaries are marked. Section 41 of the Act,

Your Honour, provides that:

(1) An application for a prospecting licence -

(a) shall be made in the prescribed form;

(b) shall be accompanied by the amount of

the prescribed rent for the first year

. ....

(c) shall be accompanied by a map on which

are clearly delineated the boundaries of the area of the land in respect of

which the licence is sought together~

with a written description of the area

. . . . .

(d) shall be lodged with the warden of the

mineral field or the district thereof

wherein the land to which the

Then:  application relates is.

(2) Within fourteen days after lodging such an

application the applicant shall serve such

notice of the application ..... on the owner and

occupier of the land to which the application

relates, and on such other persons as may be

prescribed.

And the practice is, of course, for the warden to have all this information before him and, in the absence of An 0hjertfon and having satisfied hjmself by au

examination of that material that the formalities
prescribed by the Act have been complied with in
respect to the application, proceed in open court to

grant.

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Wille(2)

To say that that is not a hearing involves the

proposition that there is something more he is obliged
to do, some evidence he is obliged to take and, of course,
that could only be, in this case, evidence as to the
sufficiency of the marking out, and this Court has held

that he is not obliged to embark upon that kind of

inquiry. In our respectful submission, the application

was fully argued in Perth. The Court was not then

satisfied that the Full Court decision was wrong.

Nothing has happened since which should operate to

change that thinking on the part of the Court except

HUNTER V MELVILLE and, if anything, HUNTER V MELVILLE

further vindicates the decision of the Full Court and

supports the indication the Court gave in Perth that there was an insufficient reason to believe that the Full Court's decision was wrong. If the Court pleases.

MASON CJ: Yes, thank you, Mr Anderson. Mr Gleeson.

MR GLEESON: 

Your Honours, the issue really comes down to the

correctness of my learned friend's propositions that
the word "hearing" in section 42 simply means that the

warden cannot grant the application other than in open

court and his further proposition that once there are
no valid objections before him there is nothing left
for the warden to do except to grant the application.

So, the hearing consists in the warden observing -
no doubt as a result of what he had earlier held that
observing is a matter of fact - that there were no

valid objections before him and then all that is left

for him to do is to say, "I grant the application."

Now, on the question of what he has before him at that

stage, could I hand Your Honours some pages that have
been torn out of the appeal book before the Western Australian

Supreme Court which show the matters that my learned

friend has referred to.  Those compass bearings

have got nothing to do with marking or pegging out. They are the datum points to which my learned friend referred,

as I would understand it, and this constitutes the

totality of the information that the warden would have
before him plus a map, and the map, again, as I understand

it, has got nothing to do with pegging out. It is a map

which represents in a map form the information in

written form that appears on the middle of this page and

defines the area in respect of which he is seeking a prospecting licence. So, he has got no information before him at all on the subject of marking out.

DAWSON J: There· is something at the top, if I can read it,

Mr Gleeson. It says:

(b) Time and Date marked out (where

applicable) -

and then in box (b) is headed 7.30 am. .. , .. ,.

MR GLEESON:  Yes, thank you. I had not noticed that. That is

true.

S1Tl3/8/PLC	16	10/6/88
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Now, my learned friend has not sought to distinguish

the decision in SINCLAIR. We accept that it relates to

a mining statute of a different State but we would submit

that when you put together what was said in SINCLAIR's

case about what the Mining Warden was there supposed to

do, and it cannot be relevantly different, we submit, that

he was only making a reconnnendation. It would be a fortiori

if the power lies in him to grant the licence. When you

put that together with the proposition that was actually

section 41 to that combination of circumstances, we would submit that there is a very live and, we also

decided, the actual decision of the majority in HUNTER

submit, very important question of whether or not it

is right to say that in an uncontested application

there is nothing for the warden to do except to grant it

in open court.

It is difficult to imagine that there is an

intermediate situation between our position and the

position that, as it were, he should not require people

to prove proper marking out. It is difficult to accept

that there is some, as it were, discretionary capacity in

the warden. What would enliven that discretion, one

does not know; maybe he hears a rumour or something that

the pegging out was not done properly or, as in this

case, he has got a potential objector or a would-be

objector leaping up and down and saying it was not
properly pegged out. But in the absence of a duty in
the warden to call for evidence upon that subject, it is
not clear what he would be doing busying himself or

concerning himself with that subject at all in an

uncontested application. And, in particular, no definition

is given by the judgment of the Full Supreme Court as to

the circumstances in which a warden, although not

obliged to do so, might think it appropriate to do so.

We submit that the question is a live one and an

important one.

MASON CJ: The Court will adjourn for a short period in order to

determine the course it will take in this matter.

AT 3.36 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.42 PM:

MASON CJ: The Court has come to the conclusion that the

decision of the Full Court of the Supreme Court is not attended with. sufficient doubt to justify the grant of

special leave to appeal.	The application for special
leave is thereby refused.

S1Tl3/9/PLC	17	10/6/88
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You do not resist costs, Mr Gleeson?

MR GLEESON:  No, Your Honour.

MASON CJ: It is refused with costs. The result of that order

is that the interlocutory injunction comes to an end
and there is no need for us to make any order with

respect to the discharge of the interlocutory injunction.

MR GLEESON: If Your Honour pleases.

MR ANDERSON:	Your Honour, the question of assessment of damages which may have proved to the respondents by reason of
the injunction - - -

MASON CJ: This is the undertaking as to damages?

MR ANDERSON:  Yes.

MASON CJ: What do you wish us to do about that?

MR ANDERSON:  There should be an inquiry as to whether the

respondents have suffered any damage and, if so, how

much. I think it is usual for the respondent in such

a case to present the Court with some prima facie

evidence that damage has been suffered before asking

for such an order. I am not aware of any such material

before the Court but could I have liberty to apply in

that regard?

MASON CJ:  Do you object to that, Mr Gleeson?

MR GLEESON: It seems the appropriate course, Your Honour.

MASON CJ: Very well, we will reserve liberty to apply with respect to a possible direction for an inquiry as to damages.

MR ANDERSON: If the Court pleases.

AT 3.44 PM THE MATTER WAS ADJOURNED SINE DIE

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