Wingstar Investments Pty Ltd v The Honourable Genevieve M Cleary in Her Capacity as Mining Warden

[2025] WASC 477

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   WINGSTAR INVESTMENTS PTY LTD -v- THE HONOURABLE GENEVIEVE M CLEARY IN HER CAPACITY AS MINING WARDEN [2025] WASC 477

CORAM:   SEAWARD J

HEARD:   16 AUGUST 2024

DELIVERED          :   13 NOVEMBER 2025

FILE NO/S:   CIV 1257 of 2024

BETWEEN:   WINGSTAR INVESTMENTS PTY LTD

Applicant

AND

THE HONOURABLE GENEVIEVE M CLEARY IN HER CAPACITY AS MINING WARDEN

Respondent

WAYNE CRAIG VAN BLITTERSWYK

Other Party

Catchwords:

Judicial Review - Mining Act 1978 (WA) - Forfeiture Application - Mining - Mining Regulations 1981 (WA) - Compliance with expenditure condition - Meaning of 'in connection with mining' - Jurisdictional Error - Materiality

Legislation:

Mining Act 1978 (WA)
Mining Regulations 1981 (WA)

Result:

Application allowed

Category:    B

Representation:

Counsel:

Applicant	:	Mr J Garas SC & Ms C McKay
Respondent	:	No appearance
Other Party	:	Ms C McKenzie

Solicitors:

Applicant	:	Lawton Macmaster Legal
Respondent	:	State Solicitor's Office
Other Party	:	McKenzie & McKenzie

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

Airflite Pty Ltd v Goyal [2003] WASCA 45

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280

Commercial Properties Pty Ltd v Italo Nominees Pty Ltd (Unreported, Full Court of Supreme Court, Western Australia, 16 December 1988)

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

ENT19 v Minister for Home Affairs [2023] HCA 18; (2023) 278 CLR 75

Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425

Grange Resources Ltd v Lee [2006] WAMW 8

Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76

Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321

Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101

Mohammadi v Bethune [2018] WASCA 98

Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80

Nova Resources NL v French (1995) 12 WAR 50

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Re His Worship Calder SM; Ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289

Re Warden P M Heaney SM; Ex parte Flint v Nexus Minerals NL (Unreported, Full Court of Supreme Court, Western Australia, Library No 1652 of 1996, 26 February 1997)

Strother v Tavener [2016] WASC 85

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Van Blitterswyk v Wingstar Investments Pty Ltd [2023] WAMW 38

SEAWARD J:

Introduction

1. The applicant, Wingstar Investments Pty Ltd, applies for judicial review of the recommendation made by the mining Warden that 10 mining leases held by it be forfeited. The Warden made the recommendation under s 98(4A) of the Mining Act 1978 (WA) (the Act).

2. The Other Party, Mr Van Blitterswyk, lodged forfeiture applications in respect of the 10 mining leases, asserting that no activity in mining or in connection with mining on the tenements occurred, and therefore Wingstar did not spend the minimum sum required in the relevant year on the relevant tenements.

3. The forfeiture applications were heard by Warden Cleary (as her Honour then was), who in Van Blitterswyk v Wingstar Investments Pty Ltd [2023] WAMW 38 (Warden's Decision), concluded that Wingstar had not satisfied the minimum expenditure requirements.

4. For the reasons set out below, the application for judicial review should be allowed.

Legislative scheme

1. Prior to outlining the background facts and the decision of the warden, it is helpful to outline the applicable legislative provisions.

Conditions applicable to mining leases

1. Part 4 div 3 of the Act is concerned with mining leases.

2. Section 82(1) of the Act is concerned with conditions and provides that every mining lease shall be deemed to be granted subject to the conditions set out in that subsection. These conditions include the condition in s 82(1)(c) which provides that the lessee shall:

   comply with the prescribed expenditure conditions applicable to such land unless partial or total exemption therefrom is granted in such manner as is prescribed.

3. The term 'expenditure conditions' is defined in s 8(1) of the Act as follows:

   expenditure conditions in relation to a mining tenement means the prescribed conditions applicable to a mining tenement that require the expenditure of money on or in connection with the mining tenement or the mining operations carried out thereon or proposed to be so carried out

4. Section 162 of the Act is the regulation making power, which relevantly provides that the Governor may make such regulations as are contemplated by the Act, including but not limited to, prescribing the expenditure conditions subject to which a mining tenement shall be held.[1]

   [1] The Act, s 162(2)(h).

5. The only prescribed expenditure condition applicable to a mining lease is that contained in reg 31 of the Mining Regulations 1981 (WA) (Regulations) which provides:

   (1)The holder of a mining lease shall expend or cause to be expended in mining on or in connection with mining on the lease not less than $100 for each hectare or part thereof of the area of the lease with a minimum of $10 000 during each year of the term of the lease; but if the holder is directly engaged part‑time or full-time in mining on the lease itself then an amount equivalent to the remuneration that the holder would be entitled to if engaged, under a contractual arrangement, in similar mining activity elsewhere in the district shall be deemed to have been expended:

   Provided that where the area of a mining lease does not exceed 5 ha the minimum annual expenditure shall be $5 000.

   (1a) Expenditure incurred under subregulation (1) during the month in which the anniversary date of the commencement of the term of the lease occurs may be treated by the holder as expenditure incurred in either the year immediately preceding that anniversary date or the year starting from such date.

   (1b) The specific provisions in regulation 96C, relating to allowable expenditure and non-allowable expenditure for the purposes of calculating expenditure under a lease, apply when calculating expenditure under this regulation.

   (2) If a mining lease is surrendered then a pro rata reduction of the amount to be expended will apply in respect of each whole month from the date of surrender to the next anniversary date of the commencement of the term of the lease.

6. Section 82(1) of the Act also provides that the lessee must lodge, in the prescribed manner, such periodical reports and returns as may be prescribed.[2] The requirements for lodging evidence of compliance with the expenditure condition is contained in reg 32 of the Regulations, which require the lessee to lodge a report in the form of Form 5 (Operations report - expenditure on mining tenement) within (relevantly) 60 days of the anniversary date of the commencement of the term of the mining lease.

   [2] The Act, s 82(1)(e).

7. Regulation 96C of the Regulations contains a number of provisions identifying specific matters that either may or cannot be used in the calculation of expenditure expended on, or in connection with, mining on a mining tenement. However, none of these provisions are relevant to the present application.

Applications for exemptions from expenditure conditions

1. Section 102(1) of the Act provides that the holder of a mining tenement may apply for an exemption from the expenditure conditions applicable to the mining tenement. The holder of a mining lease may be granted a certificate of exemption totally or partially exempting the lease to which the application relates from the prescribed expenditures conditions relating to the lease in an amount not exceeding the amount required to be expended in a period of five years.

2. An application for exemption may relate to more than one mining tenement. A certificate may be granted for any of the reasons contained in s 102(2) or s 102(3) of the Act. Section 102(2)(f) of the Act is relevant here, and provides that an exemption may be granted for the reason that:

   that the ground the subject of the mining tenement contains mineral ore which is required to sustain the future operations of an existing or proposed mining operation;

3. The Act goes on to provide that a person who wishes to object to the granting of an exemption must lodge a notice of objection.[3]  If no notice of objection is lodged, then the application for an exemption is determined by the Minister.[4]  If a notice of objection is lodged, the application for an exemption shall be heard by the warden, who will then transmit a report recommending the grant or refusal of the application for an exemption, and the warden's reasons, to the Minister for the Minister's determination.[5]

Applications for the forfeiture of a mining lease

[3] The Act, s 102(4A).

[4] The Act, s 102(5)(b) and s 102(7).

[5] The Act, s 102(5)(a) and s 102(7).

1. The holder of a mining lease is liable to have their mining lease forfeited if the lessee is in breach of any conditions of the lease.[6] Section 97(1) of the Act makes provision for the Minister to declare a mining lease forfeited. Section 97(5) of the Act provides that if the Minister thinks fit in the circumstances of the case, as an alternative to declaring a mining lease forfeited, the Minister may impose a penalty not exceeding certain specified amounts, award the whole or part of the penalty to any other person (other than an officer of the Department) or impose no penalty on the lessee.

   [6] See Mining Act, s 82(1)(g).

2. Section 98(1) of the Act provides that where the requirements of the Act are not being complied with in respect of the expenditure conditions applicable to (relevantly) a mining lease, any person may apply for the forfeiture of the mining lease.

3. An application for forfeiture must be made during the expenditure year in relation to which the requirement is not complied with, or within eight months thereafter.[7]

   [7] The Act, s 98(2).

4. The application for forfeiture shall be heard by the warden,[8] and if the warden finds that the lessee has failed to comply with the expenditure conditions, the warden may recommend the forfeiture of the mining lease, or impose a penalty not exceeding $10,000 as an alternative to the forfeiture, or dismiss the application.[9]

   [8] The Act, s 98(3).

   [9] The Act, s 98(4A).

5. A recommendation for the forfeiture of the mining lease shall not be made unless the warden is satisfied that the non‑compliance with the requirements is, in the circumstances of the case, of sufficient gravity to justify the forfeiture.[10]

   [10] The Act, s 98(5).

6. If a recommendation for forfeiture is made, the warden must forward a copy of the report and recommendation to the Minister,[11] and the Minister may declare the mining lease forfeited; or impose a penalty not exceeding $10,000; award the whole or any part of the penalty to the applicant who applied for forfeiture; or determine not to forfeit the mining lease or impose any penalty.[12]

   [11] The Act, s 98(6).

   [12] The Act, s 99(1).

7. If the Minister declares a mining lease forfeited, the applicant for forfeiture has a right in priority to mark out and/or apply for a mining tenement upon the whole or part of the land that was the subject of the forfeited mining lease.[13]

   [13] The Act, s 100(2).

8. A warden who hears either an exemption application or a forfeiture application does so in the exercise of administrative power conferred by the Act, rather than in the exercise of any judicial power.[14]

   [14] Strother v Tavener [2016] WASC 85 [34]; Re His Worship Calder SM; Ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525 [19], [21].

Factual background

1. The following summary of the background facts is taken from the Warden's Decision and the affidavit material before this court, and these facts are not in dispute between the parties unless otherwise indicated.

2. In 2015, Wingstar became the holder of 10 mining leases.  These 10 mining leases are part of two integrated mining projects known as the 'Cawse' project and the 'Bulong' project.

3. The Cawse project is, primarily, a nickel mining project.  Wingstar became the registered owner of the relevant mining leases on 18 June 2015.  The tenements making up the Cawse project are the subject of a combined reporting group.  Between 1998 and 2008 the Cawse project produced mined ore, before the previous owners ceased operations.  Not all the tenements comprising the Cawse project were the subject of the forfeiture application.[15]

   [15] Warden's Decision [17] - [19].

4. The Bulong (also known as Avalon) project is, primarily, a nickel and cobalt mining operation.  Wingstar became the registered owner of the relevant mining leases in January 2015.  The tenements making up the Bulong project are the subject of a combined reporting group.  Between 1999 and 2003 the Bulong project produced nickel, before the previous owners placed the project in care and maintenance.  All the tenements comprising the Bulong project were the subject of the forfeiture application.[16]

   [16] Warden's Decision [24] - [26].

5. Wingstar's case before the warden was that it intended to operate the Cawse and Bulong projects as a single integrated project known as the 'Cawse - Avalon - Siberia Nickel Laterite project'.  Wingstar's preference was to haul high‑grade ore from the Bulong leases to blend with ore from the Cawse leases and other tenements for processing at the Cawse nickel plant.[17]

   [17] Warden's Decision [29].

6. In early to mid June 2018, Wingstar lodged the relevant Form 5 expenditure reports.  There is no dispute that these were lodged in time.[18]  Extracts of the Form 5 expenditure reports are contained in the Warden's Decision.  The Form 5 expenditure reports were in relation to the following tenement years:

   [18] Warden's Decision [9].

Tenement	Year Ending
M24/517	2 January 2018
24/519	2 January 2018
24/520	2 January 2018
24/543	2 January 2018
24/544	2 January 2018
25/75	27 March 2018
25/76	27 March 2018
25/77	27 March 2018
25/78	27 March 2018
27/189	15 December 2017

1. On 14 June 2018, Mr Van Blitterswyk lodged the applications for forfeiture in relation to each of the mining leases.[19]  On 29 June 2018, Wingstar lodged its response to the forfeiture applications, stating in each that it intended to defend the applications and that the expenditure on each tenement for the relevant year met the minimum expenditure requirements.[20]  These applications for forfeiture were the subject of a hearing before the warden, resulting in the Warden's Decision.

   [19] Warden's Decision [9]; Lawton affidavit, GLH1 - GLH10.

   [20] Lawton affidavit, GLH11 - GLH20.

Warden's Decision

Overview

1. The hearing before the warden took place over dates in August and November 2022.  A large amount of evidence was called by the parties.  Mr Van Blitterswyk lodged two affidavits comprising 360 pages, whilst Wingstar lodged four affidavits of Mr Robert Gardner (sole director, company secretary and shareholder of Wingstar) comprising over 1,400 pages.[21]  Both Mr Van Blitterswyk and Mr Gardner also gave oral evidence.

   [21] Warden's Decision [46].

2. The warden observed that the manner in which Wingstar presented its evidence, consisting of multiple sets of expenditure figures, items and calculations, made the warden's task of determining the actual expenditure very difficult.[22]  Further, some of the expenditure claimed by Wingstar related to or relied on the 'project' as a whole, and was claimed over multiple tenements.[23]

   [22] Warden's Decision [8] - [9].

   [23] Warden's Decision [15].

3. In broad terms, Wingstar put forward multiple documents detailing the claimed expenditure, many of which were not consistent with each other.  In addition to the Form 5 expenditure reports, in January 2019, Wingstar lodged its reg 144 statement of particulars in relation to each of the leases.  Whilst each on the particulars relied on the total amount claimed on the various Form 5 expenditure reports, the particulars provided slightly more detail and a breakdown of the original figures.[24]

   [24] Warden's Decision [9].

4. Wingstar then filed its affidavit evidence, and in one of those affidavits Mr Gardner deposed that in the process of reviewing all payments made by Wingstar, Mr Gardner became aware that he had not provided his consultant geologist (who was charged with preparing the Form 5 expenditure reports) details of various other expenditure.  One of these was a heap leach dry plant, which I will return to later in these reasons.  In that affidavit, Mr Gardner embarked upon a calculation of the expenses per lease.  However, the warden observed that it was difficult to determine from that affidavit whether the expenses referred to by Mr Gardner had already been incorporated into the Form 5 expenditure reports or not.[25]

   [25] Warden's Decision [10] - [11].

5. Prior to the hearing, Wingstar lodged an outline of opening submissions with payment schedules attached.  The warden observed that the figures in these submissions differed significantly from the affidavit, which may have been due to Mr Gardner apportioning the costs of bulldozers and the heap leach dry plant differently.  Finally, Wingstar lodged an amended outline of opening submissions on day two of the hearing which the warden observed also appeared to contain another recalculation of the figures.

6. The manner in which Wingstar presented its evidence resulted in a lengthy decision from the warden of over 100 pages, in which the warden comprehensively summarised the written and oral evidence of each of the witnesses, before making detailed findings in relation to each of the claimed items of expenditure.

7. Ultimately, the warden concluded that:

   (a)Mr Van Blitterswyk bore the onus to prove on the balance of probabilities that Wingstar had failed to meet the minimum expenditure conditions for each relevant year, and that the failure was of sufficient gravity to justify forfeiture;

   (b)Wingstar was not limited to the expenditure referred to in the Form 5 expenditure reports, and could rely on the additional items of expenditure claimed, for the first time, in the affidavit evidence;

   (c)the warden was not satisfied that any of the additional items claimed in the affidavit evidence, including the heap leach dry plant, was expenditure on or in relation to mining on the various leases;

   (d)only some of the remaining items of expenditure claimed in the Form 5 expenditure reports was expenditure on or in relation to mining on the leases, or had been apportioned appropriately over the various leases;

   (e)the result was that the warden was satisfied Mr Van Blitterswyk had proven his case in relation to Wingstar's non‑compliance with the expenditure requirements; and

   (f)in all the circumstances, the warden was satisfied that the non‑compliance was of sufficient gravity to justify forfeiture of each of the mining leases, and recommended to the Minister that all leases be forfeited.

8. It is not necessary to summarise the warden's findings in relation to each of the various items of claimed expenditure that were before the warden.  This is because the application for judicial review concerns only one of those items of claimed expenditure - and the warden's decision in relation to it - being the heap leach dry plant.

Heap leach dry plant - issues

1. The issues before the warden in relation to the heap leach dry plant were as follows:

   (1)was Wingstar able to rely on the heap leach dry plant expenditure in circumstances where it was not referred to in Wingstar's Form 5 expenditure reports;

   (2)if so, was the warden satisfied that Wingstar purchased the heap leach dry plant in the relevant year/s;

   (3)if so, was that expenditure on or in connection with mining on the relevant leases; and

   (4)if so was Wingstar able to apportion the heap leach dry plant expenditure across all the leases?

2. In relation to each of these issues, the warden concluded as follows:

   (1)Wingstar was able to rely on the heap leach dry plant expenditure in circumstances where it was not referred to in Wingstar's Form 5 expenditure reports.[26]  As this conclusion is not challenged by either party in the application for judicial review, it is not necessary to consider this aspect of warden's reasons further, and I will proceed on this basis for the purposes of the application;

   (2)her Honour accepted that Wingstar paid a total of $2,585,000 (plus $17,213.50 in associated costs) for the heap leach dry plant in or about July 2017, and that the plant was delivered to the site of the Cawse project and is located on lease M 24/517;[27]

   (3)the expenditure on the heap leach dry plant was not expenditure on or in connection with mining on the relevant leases;[28] and

   (4)in light of the conclusion that the expenditure on the heap leach dry plant was not expending on or in connection with mining on the relevant tenements, it was not necessary to consider whether the expenditure could be apportioned across all tenements.[29]

   [26] Warden's Decision [128] and [159].

   [27] Warden's Decision [203] - [213].

   [28] Warden's Decision [269].

   [29] Warden's Decision [270].

3. The application for judicial review concerns the warden's conclusion in relation to issue (3) above.

On or in connection with mining

1. The warden first considered the meaning of the phrase 'on or in connection with mining'.

2. Her Honour commenced by observing, with reference to a number of authorities but principally the decision of Re Warden Calder; Ex parte Lee,[30] the following applicable propositions or legal provisions:[31]

   The definition of 'in connection with mining' is wide and imprecise. It is not automatic that once a tenement is on care and maintenance, it must be surrendered or forfeited; there is no need for there to be actual mining to meet the requirements of the Act. The Act will be satisfied if there is work leading up to mining.

   Where work is done with the intention of future mining, even simply to the extent of a pre-feasibility study, that work is in connection with mining. (citations omitted)

   [30] Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [46].

   [31] Warden's Decision [163] - [164].

3. The warden then outlined the definition of 'expenditure conditions' in s 8(1) of the Act and emphasised the word 'proposed'.

4. The warden observed that the case before her Honour had similarities with those in Re Warden Calder; Ex parte Lee(and the first instance decision of Grange Resources Ltd v Lee).[32] I will return to these decisions in further detail later in these reasons, but for present purposes her Honour observed that there were two different issues before Warden Calder. First, whether rehabilitation works fell within reg 31 in circumstances where the mine on the tenement in question had been closed for many years. Secondly, whether work aimed at future exploitation (by processing tailings) could support a claim for an exemption from the expenditure conditions under s 102(2)(f) of the Act.[33]

   [32] Grange Resources Ltd v Lee [2006] WAMW 8.

   [33] Warden's Decision [166] - [168].

5. The warden observed that the Court of Appeal concluded in relation to the first issue, that where expenditure is incurred in the performance of conditions of the mining lease which survive the cessation of mining operations, the connection between the expenditure and mining is direct and immediate and accordingly satisfies the requirements of reg 31 of the Regulations.[34]

   [34] Warden's Decision [167].

6. In relation to the second issue, the warden observed that at first instance Warden Calder refused the application for an exemption as his Honour found that:[35]

   [T]he intention to process the tailings was 'nothing more than a hope,' there being only a mere possibility that the ground would be the subject of a mining operation in the future.  He found that calculations on potential profitability or non-profitability of operations were hypothetical, being estimates based on the unproved existence of mineable reserves.  He could find no sufficient certainty 'or even any reasonable likelihood of any mining operations being proposed, in the sense contemplated by par 102(2)(f).'

   He was of the view that 'proposed' means more than a mere expression of intention or hope or expectation, and means 'at least an identified or planned or recognisable operation that includes activities such as exploration on the ground, desk studies, feasibility studies and adequate identification of resources, in order that reserve classification may be achieved and necessary capital-raising activity.' That was not an exhaustive list. (citations omitted)

   [35] Warden's Decision [169] ‑ [170].

7. The warden observed that on review in the Court of Appeal, the challenge was to the construction of the words 'in connection with mining' in reg 31 of the Regulations, as opposed to directly challenging the warden's view on 'proposed'. Her Honour then observed that:[36]

   there is a connection between whether something is in connection with mining and whether there are proposed mining operations.  That is, activity will not be in connection with mining if, in reality, there are no proposed mining operations.

   [36] Warden's Decision [171].

8. Her Honour then observed that the Court of Appeal accepted the following four propositions concerning the meaning of 'in connection with mining':[37]

   (1)expenditure must be in relation to the ground the subject of the tenement;

   (2)expenditure is to go to the provision of goods and services, being activities;

   (3)to determine whether an activity is in connection with mining, the nature and purpose of the activity must be considered; and

   (4)it is not necessary that there is active mining or even a current intention to carry out mining in the relevant tenement year for activity to be in connection with mining.

   [37] Warden's Decision [172] - [173].

9. The warden then noted that the following further proposition was put by the tenement holder to the Court of Appeal, which found favour with the court, but there was no need for the Court of Appeal to finally determine the correctness of that approach in the circumstances of that case:[38]

   An activity will be in connection with mining if:

   (a)it assists, investigates, assesses or facilitates future possible mining, and

   (b)it is reasonably capable of contributing to such assistance, investigation, assessment or facilitation.

   [38] Warden's Decision [174] - [175].

10. Before the warden, Wingstar submitted that despite this proposition being related to an application for an exemption from the expenditure conditions, nevertheless the comments made by the Court of Appeal provide a structure in which to determine the issue in the present case.  Mr Van Blitterswyk did not seek to persuade her Honour otherwise.[39]

    [39] Warden's Decision [176].

11. Her Honour agreed with this submission, and concluded that the final proposition, and the Court of Appeal's observations in relation to it, were:[40]

    helpful in setting out a structure within which an assessment can be made on whether expenditure is 'in connection with mining' where there are only proposed operations, however, overall, the question in the present case is an assessment of the reasonableness of such plans and the likelihood of their ever being carried out.

    [40] Warden's Decision [177].

12. The warden then outlined the evidence led by the parties in relation to the heap leach dry plant.  It is not necessary to summarise that evidence in detail here.  However, in these sections of the Warden's Decision, the factual matters considered by the warden included the following:

    (a)what are Wingstar's plans for the tenements;

    (b)is there evidence which suggests that those plans are not reasonable, or will not be carried out;

    (c)what practically is required to make the heap leach dry plant operational;

    (d)are there ore deposits;

    (e)what the plans for the ore deposits; and

    (f)was the heap leach dry plant ready or what was required to make it operational.

13. Having considered that evidence, and making specific findings of fact about each of these matters, the warden concluded that, at the time of purchasing the heap leach dry plant, Mr Gardner and Wingstar may have had 'a hope, but no real intention or plans to mine'.[41]  Her Honour also concluded as follows:

    264… I cannot be satisfied that the heap leach dry plant is in any near state to be reconstructed and used.  I am not satisfied that Mr Gardner knows what is required to piece it back together and put it in working condition, and neither did he know that in 2017 when it was purchased and delivered.

    265While Mr Gardner may have every intention, that does not translate automatically into being able to mine. …

    …

    268Given the perhaps incomplete state of the heap leach dry plant when it was delivered, it apparently being in pieces, possibly with some missing, the lack of any apparent plan to source limestone and sulphuric acid required to run the plant, either now or in 2017 and 2018, the continuous messages in the reports that there were other problems encountered, and work needed, and that a funder was required all suggest to me that there was not any real hope or intention of using the heap leach dry plant during or even close to the relevant tenement year, or perhaps at all.  That being the case, I am satisfied that it cannot be said that the purchase of the heap leach dry plant was in any way close to facilitating future possible mining, that is, an identified or planned or recognisable operation, and was not, considering those circumstances, reasonably capable of contributing to the facilitation or assistance of any such operation or proposed operation.

    [41] Warden's Decision [255], see also [249], [252], [254], [256], [261].

14. Her Honour concluded that having regard to all the evidence, the payment of the heap leach dry plant was not on or in connection with mining.[42]

    [42] Warden's Decision [269].

The application for judicial review

1. Wingstar claims that the warden made a jurisdictional error by misconstruing reg 31 of the Regulations in such a way so as to misconceive the nature of the function being performed or the extent of her statutory powers, in that:

   (a)the warden misconstrued reg 31 in concluding that, in circumstances where there are only proposed mining operations, there must be an assessment of the reasonableness of the proposed plans and the likelihood of their ever being carried out ([177]), in determining whether expenditure is on or in connection with mining for the purposes of reg 31;

   (b)applying that erroneous construction, the warden arrived at a conclusion that absent positive findings on each of those matters (ie reasonableness of the proposed plans and the likelihood of their ever being carried out), expenditure found to have been incurred on mining equipment (relevantly, the heap leach dry plant) was not on or in connection with mining within the meaning of reg 31 and carried no weight in response to a claim of under expenditure ([215] - [270]);

   (c)on the proper construction of reg 31, that twofold test formulated by the warden is not a requirement of reg 31, and the warden erroneously injected additional conditions in relation to the application of reg 31 which had the effect of wrongly excluding expenditure; and

   (d)by giving no weight to the expenditure (found to have been incurred), on the basis of that erroneous construction, the warden acted outside jurisdiction and the respondent's recommendations of forfeiture, which were partly based on that finding, were therefore also outside jurisdiction.

2. In broad terms, Wingstar submits that the warden erred in her construction of the requirements of reg 31 of the Regulations and, in so doing, erroneously added the following two additional conditions that were required to be satisfied in circumstances where there was no actual mining occurring on the tenements in question, and instead there was a proposal to mine in the future:

   (1)the plans for, or the proposed mining operations, are reasonable; and

   (2)the plans for, or the proposed mining operations, are likely to be carried out.

3. Wingstar submits that the above construction is not only contrary to the text of reg 31, but also contrary to the decision of the Court of Appeal in Re Warden Calder; Ex parte Lee.

4. Wingstar submits that the warden then assessed the claimed expenditure on the heap leach dry plant on the basis of this incorrect construction of reg 31, namely by assessing the reasonableness of the proposed mining operations and the likelihood of the proposed operations ever being carried out. In so doing, Wingstar submits that the warden misconceived the nature of her statutory function or the extent of her powers.

5. Wingstar seeks a writ of certiorari and an order that the applications for forfeiture be re‑heard according to law.

6. In response, Mr Van Blitterswyk submits that the warden did not misconstrue reg 31 or impose the two additional conditions referred to above. Rather, Mr Van Blitterswyk submits that the warden assessed Mr Gardner's evidence as to why he purchased the heap leach dry plant and made factual findings regarding Mr Gardner's credibility and his evidence on this issue. Mr Van Blitterswyk submits that the warden assessed Mr Gardner's evidence in relation to his claimed plans for the tenements, and made a factual finding that Wingstar did not have any real intention or plan to mine on the tenements, and therefore the purchase of the heap leach dry plant could not be 'on or in connection with mining' on the tenements.

7. Further, Mr Van Blitterswyk submits that having concluded that there was no real intention to mine, the warden did not need to consider whether those plans were reasonable, and the warden did not do so.

8. Mr Van Blitterswyk submits that it cannot be the case that a party can simply say they have purchased plant and that this is sufficient for the purposes of reg 31 of the Regulations. There must be a nexus between the plant that has been purchased and mining on the lease. Mr Van Blitterswyk submits that if a party says that they have purchased plant because they have plans to mine, it is acceptable to assess that evidence to see if it is accepted and make factual findings accordingly.

9. Mr Van Blitterswyk submits that what the warden did was make a finding of fact that Wingstar may have purchased the heap leach dry plant, but it had no intention of mining and therefore no intention of using it to mine on the tenements, and therefore it was not a real and genuine claim for expenditure that was 'in connection with mining on the tenement'.

10. Mr Van Blitterswyk therefore submits that there has been no jurisdictional error as alleged by Wingstar.

Issues

1. Resolution of the application for judicial review therefore requires consideration of the following issues:

   (1)What is the proper construction of reg 31 of the Regulations, and in circumstances where there is no current mining on the tenement, and instead there is a proposal to mine in the future, does it contain the following conditions:

   (a)the plans for, or the proposed mining operations, are reasonable; and

   (b)the plans for, or the proposed mining operations, are likely to be carried out?

   (2)Did the warden, in considering the applications for forfeiture, incorrectly construe reg 31, and therefore misconceived the nature of her statutory function or the extent of her powers?

Legal principles - judicial review

1. Jurisdictional error refers to a breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to the exercise of that authority by statute.[43]  Accordingly, a decision will involve jurisdictional error if the decision is made outside the limits of the powers and functions given to the decision maker.[44]

   [43] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [2].

   [44] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163].

2. This court, in exercising its supervisory jurisdiction to review a decision for jurisdictional error, is concerned with the limits of the powers and functions given to the decision maker and not the merits of the decision.[45]

   [45] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [29].

3. The applicant bears the burden of proving jurisdictional error, including the burden of proving, on the balance of probabilities, all of the facts on which the allegation of jurisdictional error is founded.[46]

   [46] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 [24].

4. As observed by the High Court in Kirk v Industrial Court of New South Wales, it is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error.[47]  However, relevantly for present purposes, if an administrative decision maker misunderstands the applicable law under which they exercise statutory powers, or asks themselves the wrong question, they will commit a jurisdictional error.[48]

   [47] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [3] and the authorities cited therein.

   [48] Aronson M, 'Jurisdictional Error without the Tears' in Groves M & Lee H P (eds), Australian Administrative Law  Fundamentals, Principles and Doctrines, Cambridge University Press, Victoria, (2007) 330, 335 - 336, as cited in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71] ‑ [72]. See LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [3]; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179.

5. In addition, an error will only be jurisdictional if the error was material to the decision that was made.  Some errors (eg bias or unreasonableness in the final result) will, of their nature, always be jurisdictional errors.  However, for most cases, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could (not would) have been different if the error had not occurred.[49]  What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error, but the threshold is not demanding or onerous.[50]

   [49] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [6] - [7]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 [32] ‑ [33] (Kiefel CJ, Keane, Gleeson JJ), [46] (Gageler J), [63] (Gordon J).

   [50] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 [14] - [15].

Legal authorities

1. Before considering the issues raised in the application, it is first helpful to address two authorities referred to by the parties and the warden:  the decision of the Court of Appeal in Re Warden Calder; Ex parte Lee, and the first instance decision of Grange Resources Ltd v Lee.

Grange Resources Ltd v Lee

1. At first instance in Grange Resources Ltd v Lee, Warden Calder was called on to determine three plaints for forfeiture and one application for an exemption from the expenditure conditions.

2. The leases the subject of the various applications were named Horseshoe, Thaduna and Green Dragon. Forfeiture applications were made in relation to all three tenements, but the exemption application was made in relation to the Thaduna lease only. The exemption application was made pursuant to (relevantly) s 102(2)(f) of the Act on the basis that Thaduna contained mineral ore required to sustain future mining operations at another tenement, being Horseshoe.

3. Warden Calder recommended no certificate of exemption be granted and recommended the forfeiture of the Thaduna and Green Dragon leases.  However, the warden dismissed the application for forfeiture of the Horseshoe lease.

4. No mining took place on the tenements during the relevant year, as the mines had been on care and maintenance. The question raised before Warden Calder was whether the work done whilst the mines were on care and maintenance could fall within the scope of reg 31 of the Regulations.

5. In relation to the Horseshoe lease, Warden Calder was satisfied that the tenement holder had expended, or caused to be expended, in connection with mining on the lease, an amount exceeding the minimum expenditure condition.[51]  That expenditure consisted of various tasks performed by the caretakers, including tasks relating to obligations imposed on the tenement holder in the conditions attached to the grant of the mining lease.  In the context of the forfeiture application, Warden Calder held as follows:

   94Regulation 31 does not require that there be a present and on‑going mining operation for there to be allowable expenditure.  The legislation creates obligations on tenement holders that continue beyond the cessation of extractive and processing operations on tenements and include, in particular, environmental obligations.  Mr Nutter said that it was inappropriate to simply close down the mine in 1994 and immediately proceed to comply with environmental obligations to the extent that there was completed closure of the mine.  That was so because of the presence on the tenement of the remaining resource that it was then thought may later be assessed as being mineable.  In my opinion that was a reasonable position to adopt at the time.  I am satisfied that he therefore instructed Mr Martinick to proceed on the basis that Mr Martinick's report should indicate where environmental rehabilitation work of a complete mine closure type should be undertaken and to also identify those parts of the tenement in respect of which there was potential for further mining to be undertaken and in respect of which it would not be appropriate to undertake closure-type environmental work.

   …

   97In my opinion, in the present case, the tenement holder simply has no plans at all concerning the mine other than to hold on to the tenement. That has been its intention and purpose from the time extractive and processing operations ceased in 1994. That does not, however, necessarily mean, and in this case does not mean, that the work done by the Sivwrights and Coumbes in 2004 cannot be said to be work done in connection with mining on the lease. I consider that the work done by the Sivwrights and Coumbes and the expenditure incurred in connection with that work is properly within the provisions of reg 31 in that it is work done and expenditure incurred in connection with a mining operation that ceased in 1994 but in respect of which the tenement holder had ongoing statutory obligations to fulfil.

   [51] Grange Resources Ltd v Lee [2006] WAMW 8 [92].

6. In relation to the Thaduna exemption application, Warden Calder held that the evidence was 'entirely inconclusive' in that it was insufficient to show, for purposes of s 102(2)(f) of the Act, that the deposit on the Thaduna tenement was required to sustain existing or proposed mining operations on the tenement itself, or on Horseshoe or on Green Dragon or any other tenement.[52]

   [52] Grange Resources Ltd v Lee [2006] WAMW 8 [151].

7. Warden Calder held that:[53]

   There is insufficient evidence to enable a conclusion to be properly arrived at that, firstly, there is any existing or proposed mining operation for purposes of par (f) or, secondly, whether or not, even if there was, the mineral resource on Thaduna could be mined for the purpose of sustaining any other operation in the future.  The JORC category of the resources on both Green Dragon and Horseshoe is no more than inferred.  There is no planned mining operation for either of those tenements.  There is an expression on the part of Grange of nothing more than a hope that a mining operation will be commenced on Horseshoe.

   [53] Grange Resources Ltd v Lee [2006] WAMW 8 [153].

8. Warden Calder held that in his opinion, the term 'proposed' in s 102(2)(f) of the Act:[54]

   means more than a mere expression of intention or hope or expectation I consider that it means at least an identified or planned or recognisable operation that includes activities such as exploration on the ground, desk studies, feasibility studies, adequate identification of resources, in order that reserve classification may be achieved and necessary capital‑raising activity.  That is not an exhaustive list.  I mention those things merely to demonstrate the context in which the activities of Grange concerning Thaduna are to be judged for purposes of determining whether or not there is any proposed mining operation for which the resource of Thaduna is required.  It has not been established that there is any proposed mining operation to be undertaken on any of Thaduna, Green Dragon or Horseshoe.  It cannot be said that there is a likelihood that there will ever be any such operation carried out by Grange or by any other person.  It cannot be said that there is anything beyond a mere possibility that there will be a future operation.  That is not sufficient to justify the granting of an exemption for purposes of par 102(2)(f).  Paragraph (f) does not say that the resource 'may' be required.

Re Warden Calder; Ex parte Lee

[54] Grange Resources Ltd v Lee [2006] WAMW 8 [154].

1. In Re Warden Calder; Ex parte Lee, the unsuccessful applicant for forfeiture in relation to the Horseshoe lease sought writs of certiorari and mandamus in relation to Warden Calder's dismissal of their plaints for forfeiture.  No other parties sought judicial review, and Warden Calder's decision to refuse the Thaduna exemption application was also not the subject of any application for judicial review.  After an order nisi was granted, the order absolute was referred to the Court of Appeal for determination.

2. The challenge to Warden Calder's decision concerned the proper construction of the words 'in connection with mining' in reg 31 of the Regulations.

3. McLure JA, with whom Pullin and Buss JJA agreed, observed that the applicants, correctly, did not contend that reg 31 required that there be actual mining, or expenditure on mining, on the tenement during the expenditure year. Rather, as confirmed by the full court in Re Warden P M Heaney SM; Ex parte Flint v Nexus Minerals NL,[55] it is sufficient if expenditure is 'in connection with' mining.[56] McLure JA held that the words 'in connection with' are of wide import and what constitutes a sufficient connection depends on the context in which they are used and the scope and purpose of the Act.[57]

   [55] Re Warden P M Heaney SM; Ex parte Flint v Nexus Minerals NL (Unreported, Full Court of Supreme Court, Western Australia, Library No 1652 of 1996, 26 February 1997).

   [56] Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [36].

   [57] Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [38].

4. McLure JA observed that it is significant that none of the Act, the Regulations or the conditions of the mining lease obliged the holder of the lease to carry out mining operations, or mining, on the lease. Regulation 31 was the sole source of a tenement holder's obligation in relation to mining‑related expenditure.[58]

   [58] Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [39].

5. Further, McLure JA observed that the definition of 'expenditure conditions' in s 8(1) of the Act is wider than reg 31, which is the sole prescribed expenditure condition.[59]

   [59] Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [13] - [14].

6. The applicant's case on review was that the expenditure was not incurred 'on mining' and could only be 'in connection with mining' if at the time it was incurred there was an intention to engage in mining on the mining lease. In the absence of such an intention, the applicant submitted that expenditure subsequent to mining was outside the scope of reg 31.

7. The respondent advanced the following six propositions as to the proper construction of reg 31:[60]

   (1)the expenditure in question must relate to the land (ground) the subject of the mining lease;

   (2)the expenditure must be for the provision of goods or services (which for convenience was referred to as 'activities');

   (3)regard should be had to the nature and purpose of the activity the subject of the expenditure in determining whether it is in connection with mining;

   (4)it is not necessary that there be current active mining, or an intention to carry out mining, on the mining tenement in the relevant expenditure year.  This flows from the nature of mining where there is often a long lead time before it is possible to form a definitive intention to carry out mining operations and an intention can be frustrated by activities beyond the tenement holder's control;

   (5)if the purpose of an activity is to assist, investigate, assess or facilitate future possible mining and the nature of the activity is such that it is reasonably capable of contributing to such assistance etc, then that purpose and nature will supply the nexus between the expenditure and mining; and

   (6)mining operations do not cease when the process of extraction and processing ends.  Managing the consequences of mining, including rehabilitation, and the possibility of future mining are within the definition of mining, alternatively within par (d) of the definition of mining operations or, in the further alternative, are in connection with mining.

   [60] Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [41].

8. McLure JA held that propositions (1) to (3) advanced by the respondent were not contentious.[61]  McLure JA then considered propositions (4) to (6), noting that the reference to 'mining' in these propositions was a reference to 'mining operations' as distinct from fossicking, prospecting or exploring for minerals.[62]

   [61] Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [42].

   [62] Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [42].

9. Turning first to proposition (6), McLure JA held that managing the consequences of mining could not be said to fall within the definition of 'mining' in the Act and therefore could not constitute 'mining' for the purposes of reg 31 of the Regulations. The remaining question raised by the respondent was whether expenditure for the purposes of managing the consequences of a mining operation was 'in connection with mining'.

10. McLure JA concluded that she would confine her consideration to a narrower formulation of the question which reflected the factual findings made by Warden Calder in that case being whether, following the cessation of mining operations and in the absence of any intention to conduct future mining, expenditure for the purpose of complying with conditions of the mining lease is capable of 'in connection with mining'. Her Honour concluded that the expression 'in connection with' could, 'readily extend to expenditure on matters subsequent to and consequential upon the specified thing (in this case, mining operations)'. McLure JA concluded that there was no basis in the language or purpose of the Act and Regulations to read down the expression 'in connection with' to exclude such matters. In circumstances where there was no challenge to the validity of the conditions, and in circumstances where the Act contemplates the continuation of a mining lease after the cessation of mining operations, it would be wrong to read down the expression 'in connection with' to exclude expenditure incurred subsequent to the cessation of mining.[63]

    [63] Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [45].

11. In light of this conclusion, McLure JA also accepted the correctness of the respondent's proposition (4).[64]

    [64] Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [46].

12. As to proposition (5), McLure JA considered there was merit in the approach reflected in the proposition, but for the following reasons held that it was not necessary to determine the correctness of the detail of the proposition:[65]

    There is merit in the approach reflected in the fifth proposition advanced on behalf of the second respondent.  For example, expenditure incurred on the pre-feasibility undertaken in the period from 1996 to late 2003 for the purpose of determining whether to recommence mining operations in the form of processing the low grade tailings on the mining lease is, in my view, expenditure in connection with mining notwithstanding the absence of an intention to mine.  However, it is unnecessary in this case to determine the correctness of the detail of the proposition, including in particular, the identification of the activity as 'possible future mining' instead of mining.  If approved, it is likely to be seen as governing the extent or degree of connection required between expenditure and mining.  This is not a case which requires exploration of the outer limits of the connection.

    [65] Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [46].

Issue 1 - construction

1. The first issue for consideration is the question of the proper construction of reg 31 of the Regulations.

Legal principles

1. The general principles concerning the process of statutory construction are well known.  Statutory construction involves the attribution of objective meaning to the statutory text having regard to considerations of text, context and purpose.  The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The statutory text is the surest guide to Parliament's intention.  The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.[66]

   [66] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] ‑ [71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14].

2. The provisions of the statute must be understood, if possible, as parts of a coherent whole.[67]  Where the text, read in context, permits more than one potential meaning, the choice between those meanings may turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies.[68]

   [67] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70]; Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593 [16]; Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76 [181].

   [68] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70]. Mohammadi v Bethune [2018] WASCA 98 [34]; Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76 [180].

3. These principles are equally applicable to the interpretation of regulations, with the caveat that the regulations must be placed in their statutory context, which includes the legislation under which they are enacted and with which they are required to be consistent.[69]

Construction of reg 31

[69] Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 [19]; ENT19 v Minister for Home Affairs [2023] HCA 18; (2023) 278 CLR 75 [86].

1. I did not understand there to be any real dispute from Mr Van Blitterswyk as to the appropriate construction of reg 31. That is, I did not understand Mr Van Blitterswyk to submit that it is a condition of reg 31 that in circumstances where there is no current mining activity on the tenement, and there is instead an intention to mine, the following conditions must be satisfied:

   (1)the plans for, or the proposed mining operations, must be reasonable; and

   (2)the plans for, or the proposed mining operations, are likely to be carried out.

2. Rather, Mr Van Blitterswyk's case was that the warden had not imposed these conditions, but rather had made a factual finding as part of considering whether the heap leach dry plant had been purchased on or in connection with mining on the tenements.

3. Nonetheless, as part of considering the application for judicial review, it is necessary to first properly construe reg 31 of the Regulations.

4. The text of reg 31(1) of the Regulations relevantly provides:

   The holder of a mining lease shall expend or cause to be expended in mining on or in connection with mining on the lease

5. The text of reg 31 does not itself contain any reference to proposed mining or plans for proposing mining, and does not contain any reference to a condition that (1) any plans for, or the proposed mining operations, are reasonable; and/or (2) any plans for, or the proposed mining operations, are likely to be carried out.

6. The definition of expenditure conditions in s 8(1) of the Act does contain the following reference to proposed mining operations:

   expenditure conditions in relation to a mining tenement means the prescribed conditions applicable to a mining tenement that require the expenditure of money on or in connection with the mining tenement or the mining operations carried out thereon or proposed to be so carried out

7. However, this definition, when read into s 162(2)(h) of the Act, merely outlines the scope of the regulation making power in relation to expenditure conditions. There is only one regulation which prescribes the expenditure conditions in relation to mining leases, and that is reg 31 of the Regulations. As observed by McLure JA in Re Warden Calder; Ex parte Lee, the definition of expenditure conditions is wider than the scope of reg 31.[70]

   [70] See Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [13] - [14].

8. The text of reg 31 is sufficiently broad so as to admit expenditure 'on mining' and expenditure 'in connection with mining' on the tenements. It is in the context of the phrase 'in connection with mining' that expenditure associated with future mining may fall within the scope of reg 31 of the Regulations.

9. In Re Warden Calder; Ex parte Lee, the Court of Appeal rejected the applicant's case that in circumstances where there was no active mining on the tenement, expenditure could only be 'in connection with mining' if at the time it was incurred there was an intention to engage in mining on the mining lease.  The Court of Appeal instead accepted the proposition that it is not necessary that there be current active mining, or an intention to carry out mining, on the mining tenement in the relevant expenditure year.  This flows from the nature of mining where there is often a long lead time before it is possible to form a definitive intention to carry out mining operations and an intention can be frustrated by activities beyond the tenement holder's control.[71] It also flows from the fact that the neither the Act nor the Regulations require the holder of a mining lease to carry out mining operations or mining on the lease. Rather, reg 31 is the sole source of a lessee's obligation in relation to expenditure outside of any of the conditions of the lease itself.[72]

   [71] Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [41].

   [72] Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [39].

1. One often cited example of expenditure 'in connection with mining' is expenditure on pre‑feasibility studies. Pre‑feasibility studies may be a tool used by the holder of the tenement to gather sufficient information from which to make a decision as to whether to engage in mining or mining operations on the tenement at some point in the future. That is, at the time of the pre-feasibility studies, there may not be any intention to carry out mining. Desktop studies were accepted as being expenditure falling within the scope of reg 31 by the Full Court in Commercial Properties Pty Ltd v Italo Nominees Pty Ltd[73] and Re Warden P M Heaney SM; Ex parte Flint v Nexus Minerals NL.[74]

   [73] Commercial Properties Pty Ltd v Italo Nominees Pty Ltd (Unreported, Full Court of Supreme Court, Western Australia, 16 December 1988), 14.

   [74] Re Warden P M Heaney SM; Ex parte Flint v Nexus Minerals NL (Unreported, Full Court of Supreme Court, Western Australia, Library No 1652 of 1996, 26 February 1997), 8.

2. In circumstances where there is no legal requirement that there be active mining on the tenement in the relevant year, or an intention to carry out mining on the mining tenement in the relevant year, I do not consider reg 31 can be construed so as to impose either of the above two conditions in order to satisfy the nexus that the expenditure is 'in connection with mining' on the leases.

3. Such a construction is consistent with the Act as a whole. In particular, the wording of reg 31 stands in contrast to the wording of s 102(2)(f) of the Act which makes an express reference to proposed mining operations. Section 102(2)(f) provides that an application for an exemption from the expenditure conditions may be granted where the ground the subject of the mining tenement contains mineral ore which is required to sustain the future operations of an existing or proposed mining operation.

4. The above construction of reg 31 is also not inconsistent with either the primary purpose or objective of the Act, being to encourage and promote the prospecting and exploration for, and mining of, mineral deposits in the State,[75] or any of the other objectives identified by the Court of Appeal in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum.[76]

   [75] Nova Resources NL v French (1995) 12 WAR 50, 57.

   [76] Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425.

5. It is relevant to observe, however, that reg 31 does involve fact finding by (relevantly here) the warden. The warden is ultimately required to consider whether the applicant for forfeiture can prove that the minimum expenditure conditions have not been met. This will involve considering the evidence regarding the claimed expenditure.

6. In so doing, the warden may be required to consider matters such as whether the tenement holder has in fact expended money; whether that expenditure relates to the land (ground) the subject of the mining lease; the nature and purpose of the good or service; was the good or service purchased for some sort of use associated with mining on the tenement (as opposed to being purchased for a use not connected with mining at all, or mining on the lease in question); the nature of the mining lease; the conditions of the mining lease; and the type of ore or other substance located on the lease.  This is not in any way an exhaustive list of facts that a warden may need to consider when hearing a forfeiture application and when considering whether claimed expenditure is on mining on or in connection with mining on the lease, and not all of these factors may be applicable in any one case.

7. However, as a matter of construction, when carrying out that fact finding exercise, reg 31 does not impose a condition that in circumstances where there is no current mining activity on the tenement that (1) the plans for, or the proposed mining operations, must be reasonable; and/or (2) the plans for, or the proposed mining operations, are likely to be carried out.

8. It will fall to the warden in each case where a forfeiture application is made to consider whether the claimed expenditure is (relevantly) expenditure in connection with mining on the lease.  In this regard, it is relevant to observe that the phrase 'in connection with' is of wide import.[77]  As observed in Collector of Customs v Pozzolanic Enterprises Pty Ltd,[78] and referred to by McLure JA in Re Warden Calder; Ex parte Lee, the words 'connected with' are capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote. In light of this, it not possible to define the metes and bounds of what will constitute 'in connection with mining'. It will not only depend on the purpose of the Act, but also the facts of the particular case.

   [77] Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [36] and [38].

   [78] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280.

9. The Court of Appeal in Re Warden Calder; Ex parte Lee did not consider this issue.  The Court of Appeal also expressly declined to consider proposition (5) advanced by the respondent in that case, which was if the purpose of a good or service is to 'assist, investigate, assess or facilitate future possible mining and the nature of the activity is such that it is reasonably capable of contributing to such assistance etc,' then that purpose and nature will be a sufficient nexus between the expenditure and on or in connection with mining.  However, McLure JA observed that there was merit in this proposition.[79]

   [79] Re Warden Calder; Ex parte Lee [2007] WASCA 161; (2007) 34 WAR 289 [46].

10. It is likewise not possible or appropriate in the present case to outline a broad overarching 'test' for when expenditure in circumstances where there is no mining on the lease, may constitute expenditure 'on or in connection with mining'.

Issue 2 - decision of the warden

1. Resolution of issue 2 involves a consideration of the reasons of the warden.

2. Mr Van Blitterswyk's case is that the warden has not construed reg 31 so as to contain either of the above two conditions, but rather the warden has made factual findings as part of considering whether the heap leach dry plant had been purchased in connection with mining on the tenements. In particular, the warden has made a factual finding that Wingstar did not have any intention or plan to mine, and therefore the heap leach dry plant was not expenditure in connection with mining on the leases.

3. It is apparent from the reasons for decision that the warden has engaged in a process of fact finding in relation to the claimed expenditure on the leach heap dry plant.  However, that alone is not an answer to the alleged jurisdictional error.

4. As outlined in Azzopardi v Tasman UEB Industries Ltd:[80]

   A finding of fact … may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer.  A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact … Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made

   [80] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 156.

5. See also the decision of Pullin J in Airflite Pty Ltd v Goyal:[81]

   This Court may offer relief in relation to findings of fact, only if there is no evidence to support a finding, or if the ultimate finding of fact necessarily demonstrates a misdirection on the law.  That errors amount to errors of law.  (citations omitted)

   [81] Airflite Pty Ltd v Goyal [2003] WASCA 45 [19].

6. It is therefore necessary to review the decision of the warden to ascertain whether, in the course of undertaking the ultimate fact finding exercise, the warden has construed reg 31 so as to impose the above two conditions.

Incorrect construction

1. I am satisfied, when the reasons of the warden are read as a whole, that the warden has construed reg 31 as imposing the two conditions above.

2. In this regard, the warden outlined at the beginning of the Warden's Decision that there were two broad factual questions to determine:[82]

   (a)If I consider the expenditure as recorded in the Form 5's, has Wingstar shown, by its Form 5 expenditure reports, that they have achieved the minimum required spend, and

   (b)Whether I consider the expenditure as recorded in the Form 5's or not, and if I am satisfied that the heap leach dry plant and bulldozers were in fact purchased at a relevant time, were these purchases in relation to the ground the subject of these mining leases, and on or in connection with mining?

   [82] Warden's Decision [7].

3. In the context of dealing with factual question (b), the warden first included a section which is headed 'What does "on or in connection with mining" mean'.[83]  This section of the Warden's Decision is not concerned with the task of fact finding but rather outlines the relevant legal principles which inform that fact finding task.

   [83] Warden's Decision [163] - [178].

4. At the conclusion of that section, the warden outlined that when considering whether expenditure is 'in connection with mining', when there are only proposed mining operations, the overall question involves:[84]

   an assessment of the reasonableness of such plans and the likelihood of their ever being carried out.

   [84] Warden's Decision [177].

5. The framing of the question in this way involves a construction of reg 31 which includes the two conditions identified above.

6. The framing of the question in this way is also contrary to the conclusion of the Court of Appeal in Re Warden Calder; Ex parte Lee that it is not necessary that there be current active mining, or an intention to carry out mining, on the mining tenement in the relevant expenditure year in order for expenditure to fall within reg 31 of the Regulations.

7. The source of this error may have been a conflation of a number of different concepts.

8. In this regard, the warden referred to the definition of 'expenditure conditions' in s 8(1) of the Act, and emphasised the reference to mining operations proposed to be carried out. However, as outlined earlier in these reasons, the definition of expenditure conditions is broader than the scope of reg 31, which does not refer to proposed mining operations or plans.

9. Further, when the warden considered the decisions of Re Warden Calder; Ex parte Leeand Grange Resources Ltd v Lee, the warden appears to have ultimately conflated the two separate plaints that were before Warden Calder, being the applications for forfeiture and the application for an exemption pursuant to s 102(2)(f) of the Act. It is relevant to observe that an exemption can be granted under s 102(2)(f) of the Act if the ground the subject of the tenement contains mineral ore which is required to sustain the future operations of an existing or proposed mining operation. It is in the context of considering this exemption that Warden Calder assessed the proposed mining operation and concluded that it was 'nothing more than a hope'; that there was only a mere possibility that the ground would be the subject of a mining operation in the future; and that Warden Calder could find no sufficient certainty 'or even any reasonable likelihood of any mining operations being proposed', in the sense contemplated by s 102(2)(f).[85]  Warden Calder did not make any findings as to the likelihood of any proposed mining operations in the context of the forfeiture application.

   [85] Warden's Decision [169].

10. It is therefore not surprising that the challenge to the Court of Appeal, which was only in relation to dismissal of the forfeiture application in relation to Horseshoe, concerned the construction of the words 'in connection with mining', 'as opposed to directly challenging the warden's view on the correct construction of the word 'proposed'.[86]

    [86] Warden's Decision [171].

11. The warden also observed that Wingstar submitted that, 'the comments made by the court on review in Re Warden Calder; Ex parte Lee provide a structure in which to determine the issue in the present case'.[87]  The warden accepted this submission and considered that, 'those comments are helpful in setting out a structure within which an assessment can be made on whether expenditure is 'in connection with mining' when there are only proposed operations'.[88]

    [87] Warden's Decision [176].

    [88] Warden's Decision [177].

12. However, it is significant that the comments of the Court of Appeal in Re Warden Calder; Ex parte Lee did not refer to any requirement to carry out an assessment of the reasonableness of plans for future mining and/or the likelihood of the plans ever being carried out.

Application of the incorrect test

1. I am also satisfied, when regard is had to reasons of warden as a whole, that her Honour has gone on to apply the incorrect construction of reg 31 when assessing whether the expenditure on the heap leach dry plant is 'in connection with mining' on the leases.

2. Mr Van Blitterswyk submits that the warden did not misconstrue reg 31, and instead made factual findings regarding Mr Gardner's evidence as to why he purchased the heap leach dry plant and his plans for future mining.

3. It can be accepted that the warden has, as part of her reasons, assessed the evidence given by the witnesses, and made primary findings of fact as to various aspects of that evidence, including as to Mr Gardner's credibility.  These primary findings of fact were made in the context then going on to consider the ultimate finding of fact, being whether the expenditure on the heap leach dry plant is 'on or in connection with mining' on the leases.

4. In this regard, her Honour first assessed the evidence regarding the purchase of the heap leach dry plant and concluded that Wingstar had purchased the heap leach dry plant in the relevant year.[89]  Her Honour also found that it was being stored on one of Wingstar's tenements associated with the Cawse project.[90]

   [89] Warden's Decision [213].

   [90] Warden's Decision [208].

5. Her Honour then proceeded to consider whether the heap leach dry plant expenditure was 'in connection with mining',[91] and framed the questions that her Honour was considering when doing so as:[92]

   a.What are Wingstar's plans, and

   b. Is there evidence that suggests that those plans are not reasonable, or will not be carried out?

   [91] Warden's Decision [215] - [270].

   [92] Warden's Decision [217].

6. The warden then proceeded to consider and assess the evidence before her by reference to the various different headings identified earlier in these reasons, which are all matters directed towards assessing the reasonableness of Wingstar's proposed mining operations and plans, and the likelihood of those proposed operations or plans being carried out.

7. It was those matters that then informed the factual finding made by her Honour that Mr Gardner and Wingstar may have had 'a hope, but no real intention or plans to mine',[93] and that all the circumstances:[94]

   suggest to me that there was not any real hope or intention of using the heap leach dry plant during or even close to the relevant tenement year, or perhaps at all.  That being the case, I am satisfied that it cannot be said that the purchase of the heap leach dry plant was in any way close to facilitating future possible mining, that is, an identified or planned or recognisable operation, and was not, considering those circumstances, reasonably capable of contributing to the facilitation or assistance of any such operation or proposed operation.

   [93] Warden's Decision [255], see also [249], [252], [254], [256], [261].

   [94] Warden's Decision [268].

8. It was in light of all these matters, that the warden then concluded that the payment for the heap leach dry plant was not on or in connection with mining.[95]

   [95] Warden's Decision [269].

9. In so doing, the warden made ultimate findings of fact in the context of applying the incorrect construction of reg 31 of the Regulations. That is, the warden assessed all the evidence and made factual findings against two criteria or conditions which reg 31, properly construed, does not contain.

10. Mr Van Blitterswyk also submits that the warden did not actually conclude that Wingstar's plans were not reasonable, or that they were never likely to be carried out.  Further, that there was no need for the warden to consider whether the plans were reasonable or never likely to be carried out, because her Honour found that there was never any real intention or plan to mine.

11. I do not accept this submission.  The conclusions of the warden outlined above were arrived at following a consideration of the evidence under the various different headings identified earlier in these reasons, which are all matters directed towards assessing the reasonableness of Wingstar's proposed mining operations and plans, and the likelihood of those proposed operations or plans being carried out.  For example, what was practically required to make the heap leach dry plant operational; what was practically required to undertake future mining (including an assessment of the evidence regarding mineral ore deposits and the need to recommission a pipeline;  the economic conditions and their impact; and the integrity of the heap leach dry plant and what was needed (and the likelihood) of it becoming operational.

12. It is also contrary to [217] of the Warden's Decision where the warden expressly states that she has determined whether there is evidence that suggests that Wingstar's plans are not reasonable or will not be carried out.

13. I am therefore satisfied that the warden has misconceived the nature of her statutory function or the extent of her powers.

Materiality

1. Having concluded that the warden has misconceived the nature of her statutory function or the extent of her powers, it remains necessary to consider whether that error is a material error.

2. It is important to observe that the test in relation to materiality is whether there exists a realistic possibility that the outcome of the decision could (and not would), have been different had the error not been made.

3. It is not the role of this court to undertake the assessment of whether the expenditure in relation to the heap leach dry plant is expenditure on or in connection with mining on the tenement.  That is the function of the warden, and in circumstances where I have concluded that the warden has misconstrued the nature of the statutory powers and function, it is not appropriate for this court to take on the warden's statutory role.

4. I am satisfied that the threshold of materiality is reached. The warden has undertaken the required assessment by applying the incorrect test and assessing the evidence against conditions that reg 31 does not, properly construed, impose. In circumstances where the warden has concluded that Wingstar did purchase the heap leach dry plant in the relevant year and that the heap leach dry plant is stored on one of the Wingstar's tenements; and in circumstances where the heap leach dry plant appears on its face to be a good that may be used for mining related activities, I am satisfied that there exists a realistic possibility that the outcome of the decision could, not would, have been different had the error not been made.

5. Further, the amount of the expenditure is of sufficient magnitude such that if the expenditure is on or in connection with mining, then it could result in the warden determining that the minimum expenditure conditions have been met by Wingstar.  In this regard, I observe that the warden would also need to go on to consider the question of whether the claimed expenditure can be apportioned across all the tenements.  This was not a matter considered by the warden.

1. Mr Van Blitterswyk submits that there is no realistic possibility, even if the correct construction of reg 31 was adopted, that the warden would have reached a different conclusion. Mr Van Blitterswyk submits this is because the warden concluded that there was no real intention or plan to mine and made negative findings as to Mr Gardner's credibility. I do not accept this submission. That submission assumes the incorrect construction of reg 31 of the Regulations.

Conclusion

1. For the reasons outlined above, the application for judicial review should be allowed.  I will hear further from the parties as to the appropriate orders and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MA

Associate to the Hon Justice Seaward

13 NOVEMBER 2025