Courts - Practice - Supreme Court (N.S.W.) - Equitable jurisdiction - Declaration of right - Extent of jurisdiction - Whether Mining Act, 1906 (N.S.W.) qualifies power to grant remedy - Equity Act, 1901 (as amended) (N.S.W.), s. 10.*

Statutes - Construction and interpretation - Commencement of licence "from" specified day - When term commences - Renewal of licence - Application to be made "not later than one month before expiry" of licence or renewal - Whether clear month - Interpretation Act, 1897 (N.S.W.), s. 35 (ii).

MCTIERNAN J. In my opinion the appeal should be dismissed. I concur in the

WALSH J. In the Supreme Court of New South Wales and on the hearing of this appeal, it was contended on behalf of the appellant that the Supreme Court in Equity had no jurisdiction under s. 10 of the Equity Act, 1901 (N.S.W.), as amended in 1965, to make declarations sought in the suit brought in that Court by the present respondent, Jododex Australia Pty. Ltd. (Jododex). I have no doubt that the Court had jurisdiction. I agree with the reasons given by Gibbs J. for rejecting the submissions of the appellant on this question. (at p427)

2. It was contended, also, that in the circumstances of the case, a proper exercise of the discretion of the Court required it to decline to make any declaration. This question has caused me considerable difficulty. Applications had been made by the appellant for authorities to enter certain land. It became the duty of the warden to deal with those applications in accordance with s. 50 and other relevant provisions of the Mining Act, 1906 (N.S.W.), as amended, (the Act). The warden had initiated an inquiry into the matter of the applications and Jododex had notice of that inquiry. It had become owner of part of the subject land, as well as being the holder of an exploration license, the validity of which is now in contest between the parties. In my opinion, there is no reason to doubt that in the proceedings before the warden, if they had continued without any intervention by the Supreme Court, Jododex would have had the opportunity to raise and to debate the question whether the provisions of the Act precluded the grant of the authorities to enter, by reason of the fact that Jododex was, as it claimed, the holder of an exploration license. validly granted to it and validly renewed. (at p427)

3. In my opinion, when a special tribunal is appointed by a statute to deal with matters arising under its provisions and to determine disputes concerning the granting of rights or privileges which are dependent entirely upon the statute, then as a general rule and in the absence of some special reason for intervention, the special procedures laid down by the statute should be allowed to take their course and should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute. In other words, I think that it will ordinarily be a wise exercise by the Supreme Court of the discretion which it has under s. 10 of the Equity Act to decline to undertake the tasks which have been committed by the Parliament to a specialized tribunal. Whilst I agree with Gibbs J. that s. 10 ought not to be construed as if it contained words excepting from its operation cases arising under the Act, I think that the procedure set out in the Act itself should be regarded as the normal procedure for dealing with such cases. I do not think that this view is weakened by the circumstance that the relevant provisions of the Act, and in particular those of s. 46 (3), did not commit to the warden the power to determine finally and unexaminably the matters which the Act requires him to decide : see Wade v. Burns [1966] HCA 35; (1966) 115 CLR 537 On the contrary, if his decisions were immune from any review by means of any of the prerogative writs, that might be a ground for concluding, in some cases, that the Supreme Court ought to intervene by means of a declaration before the warden had given a decision, in order to ensure that the matter should not be finally determined in a manner which was not according to law. (at p428)

4. For the reasons indicated, I have felt disposed to hold that this is not a case in which the Supreme Court should have made any declaratory order. The learned judge's exercise of his discretion was influenced, to some extent, by what I regard as an erroneous assumption that Jododex might not have had a right to be heard in the proceedings before the warden. Consequently, it may be suggested that the established limitations upon the interference by an appellate court with a discretionary judgment are not applicable and that this Court should itself decide how the discretion ought to be exercised. However, I have come to the conclusion that I should not dissent from the view of other members of this Court that the appeal ought not to be upheld on the ground that there was a wrong exercise by the Supreme Court of its discretion. I think that we ought not now to decide that the questions of law upon which the parties are in dispute should be left unresolved in these proceedings. (at p428)

5. The first of those questions is whether or not the day on which the exploration license in favour of Jododex was executed was included in the period covered by the grant of the license which was expressed to be granted "for the term of twelve months from the date herof". On that question I agree, with one reservation, with the reasons for judgment of Gibbs J. The reservation is that I prefer not to express any definite opinion as to the correctness of the decision in Ex parte Turnbull ; Re Storey (1967) 85 WN (Pt 1) (NSW) 730 The learned primary judge regarded it as distinguishable from the present case. The authority to enter considered in that case was not identical in its terms or in its subject matter with the exploration license with which the Court is now concerned. (at p428)

6. There remains one further question, which was not raised before the learned primary judge. An application for renewal of the exploration license was made on 28th October 1969. Assuming that the license expired on 28th November 1969, the question is whether the application to renew it was made "not later than one month before the expiry of such license". I am of opinion that the words just quoted should be interpreted as requiring that the period of one month there mentioned (which means a calendar month) shall be a "clear" month or a "full" month. The authorities which lead to that conclusion are discussed in the judgment of Gibbs J. I need not mention them, except to refer to the recent case of Carapanayoti & Co. Ltd. v. Comptoir Commercial Andre & Cie., S.A. (1972) 1 Lloyd's Rep 139 . In that case the Court was concerned with a contractual provision stipulating that an act was to be done "not later than" twenty-one days "before commencement of shipment period". The Court applied the rule which has become established as that which is generally applicable to provisions referring to an act being done "not less than" a stated number of days before a given day or event, or referring to the elapsing of "at least" a specified period of time. (at p429)

7. The statement that the specified period that is to elapse from the doing of an act before a given day or event must be a "full" period, or must be so many "clear" days, means that the period is to be exclusive, both of the day on which the act is done and of a day which can be regarded as marking out the specified terminus by reference to which the period is to be calculated. In order that the period may be capable of calculation as a "clear" period of a specified number of days, or of some other recognized span of time, it is necessary, in my opinion, to be able to identify some day as that which indicates the termination of the period, but which is itself to be excluded from the computation. If a day is named as the day before which the specified period is to elapse there is no difficulty. If an event is named, the day when that event occurs is the day before which (that is to say, before the commencement of which) the period must elapse. When, as in the present case, the indicated termination of the specified period is described as "the expiry of such license", then in my opinion what must be done is to identify some day as being the day upon which the license may be said to expire and to exclude that day in computing the "clear" period of one month to which the statutory provision refers. (at p429)

8. In many respects the rules that have been worked out as those which are prima facie to be applied in dealing with provisions requiring the computation of periods of time are highly artificial. But, in my opinion, it would add another element of artificiality to hold in the present case that because the expiry of the license must be regarded as not occurring until the end of the day of 28th November 1969, a different method of ascertaining the "clear" period of one month is to be adopted from that which, in my opinion, would plainly have been the proper method if the statutory provision had referred in terms to "the day on which the license expires". (at p430)

9. If I may adopt an illustration used by Lord Denning M.R. in Carapanayoti & Co. Ltd. v. Comptoir Commercial Andre & Cie., S.A. (1972) 1 Lloyd's Rep, at p 143, I am of opinion that if there had been a provision that some act was to be done "not later than" one day before the expiry of the license, the doing of that act on 27th November would not have been in time. It would not have been right, I think, to hold that because the whole of 28th November had to run out before the license expired, an act done on the preceding day would have been done one clear day before the expiry of the license. Whilst it may be argued that the Carapanayoti Case (1972) 1 Lloyd's Rep 139 can be distinguished on the ground that the provision there considered referred to "the commencement" of the shipment period, I am of opinion that the reasons given for the decision in that case provide strong support for the contention of the appellant in this case. I am of opinion that that contention should be accepted. (at p430)

10. On the ground just discussed I would allow the appeal. (at p430)

GIBBS J. On 28th November 1968 the Minister for Mines for the State of New South Wales granted to the first respondent, Jododex Australia Pty. Ltd. ("Jododex"), an exploration license under the Mining Act, 1906 (as amended) (N.S.W.) ("the Act"). (I have followed the draftsman of the Act in spelling the word "license", as Windeyer J. did in Wade v. N.S.W. Rutile Mining Company Pty. Ltd. [1969] HCA 28; (1969) 121 CLR 177, at p 191 .) The holder of such a license has the exclusive right to carry out such surveys and other operations as are authorized by the license for the purpose of prospecting in or on the land for gold or minerals as is specified in the license - s. 83B (15) of the Act. The license to Jododex was granted upon an application made on 29th March 1967. It conferred on Jododox the exclusive right to carry out specified operations for the purpose of prospecting for copper, lead, zinc, cobalt, nickel, gold, silver, molybdenite, tungsten and its ores, tin, phosphates, arsenical pyrites, barytes and dolomite in or on certain lands in the Goulburn district having an area of 102 square miles. At that time s. 83B (13) (a) read as follows :

"An exploration license may be granted for such period

not exceeding twelve months as the Minister may determine."

This sub-section was in 1969 amended by inserting after the word "period" the words "from the day of execution thereof by the Minister". The license to Jododex was expressed to be granted "for the term of twelve months from the date hereof". Power to renew a license is given to the Minister by s. 83B(13)(b) which provides:

"Upon application in that behalf made by the holder of an

exploration license during the currency of such license or any

renewal thereof and not later than one month before the

expiry of such license or renewal, as the case may be, the

Minister may, at his discretion and subject to such conditions,

provisions and stipulations as he may think fit, grant successive

renewals of the license for further periods not exceeding six

months each in respect of the whole of the land comprised

therein or any part thereof."

On 28th October 1969 Jododex made application to the Minister for a renewal of the license. Thereupon the license was indorsed with a memorandum that its term had been extended by the Minister, in pursuance of the powers conferred on him by s. 83B (13)(b) of the Act, for a period of six months from 28th November 1969 over a reduced area of forty-eight square miles. Further similar indorsements since made state that the term has been extended for subsequent six-monthly periods, the latest of which commenced on 29th May 1971. The forty-eight square miles covered by the license in its extended form included a property known as "Woodlawn" of which Jododex is the owner in fee simple, and other lands owned by one Fisher and described as "the Fisher property". Jododex spent large sums of money in prospecting under its license. During May 1971 Jododex lodged applications for mining leases in respect of, inter alia, Woodlawn and applications for authorities to enter both Woodlawn and the Fisher property. These applications would appear to be pending. (at p431)

2. In the meantime, on 7th November 1968 the appeallant, Anthony Ashley Forster, had lodged three applications for authorities to enter Woodlawn and the Fisher property to search or prospect for copper, nickel, tin and allied minerals. On 10th March 1971 a warden gave notice that on 26th March 1971 he would hold an inquiry into the matter of these applications. The notice was addressed to the secretary, Goulburn Land Development Pty. Ltd., which had been stated in the applications to be the reputed owner of the lands, but in fact a copy of it was sent to Jododex which, as I have said, was the owner of Woodlawn. The inquiry was adjourned by the warden from time to time. Finally, on 21st April 1971 the warden adjourned the inquiry to 25th June 1971 and required the appellant to notify Jododex whether he intended to proceed on that date. The appellant did in fact inform Jododex that he would be proceeding with his application on 25th June. (at p432)

3. On 22nd June 1971 Jododex commenced the present proceedings in the Supreme Court of New South Wales in its Equitable Jurisdiction. Although the second respondent, the mining warden, was joined as a defendant to the suit the only relief sought, namely declarations and an injunction, was against the appellant who was the other defendant. At the hearing of the suit Jododex abandoned its claim to an injunction and sought a declaration first that it was the holder of an exploration license validly renewed from time to time over the land the subject of the applications by the appellant for authorities to enter, and alternatively that the said land was the subject of an application for an exploration license made by Jododex before the time of the making by the appellant of the applications for the authorities to enter. The learned primary judge made the first declaration sought and found it unnecessary to consider the claim for an alternative declaration (1971) 2 NSWLR 299 . His decree was pronounced on 19th November 1971. (at p432)

4. The object of the equity suit was to establish that the appellant's applications for authorities to enter must be refused. The power of the warden given by s. 50 of the Act to grant an authority to enter was, at the date when the appellant's applications were made, subject to a restriction imposed by s. 46 (3) of the Act, which provided, inter alia, that :

". . . no application for an authority to enter shall be granted

under this Part in respect of any land in or upon which any

person other than the applicant is at the time of the making

of the application entitled . . . to carry on operations under an

exploration license . . . or in respect of land the subject of an

application for an exploration license made before the time

of the making of the application for the authority to enter."

By the time when the suit came to be heard, s. 46 (3) had been amended by the Mining (Amendment) Act, 1970, and no longer referred either to exploration licenses or to applications therefor, but a new sub-section 4 had been added to s. 46 which provided, inter alia, as follows :

"An application for an authority to enter in and upon any

land under this

Part

. . .

(c) shall not be granted in respect of a mineral (whether

alone or together with other minerals) if an exploration

license for the purpose of prospecting for that mineral

(whether alone or together with other minerals) affects

the same land and the authority to enter has not been

applied for by the holder of the license or by some person

with his consent."

It is plain that if the successive renewals of the exploration license granted to Jododex had been validly effected, the appellant's applications for authorities to enter could not lawfully have been granted on the date on which the matter was fixed for hearing by the warden, or at the date of the decree, for on those dates an exploration license for the purpose of prospecting for the minerals in respect of which authorities to enter were sought, and other minerals, affected the same land and the authorities to enter were not applied for by the holder of that license or by any person with his consent. An alternative contention submitted to the learned primary judge on behalf of Jododex was that even if the purported renewals of the exploration license were ineffectual Jododex had an accrued right under s. 46 (3) to have the applications for authorities to enter refused on the ground that they were in respect of land the subject of an application for an exploration license made on 29th March 1967 before the time of the making of the applications for the authorities to enter (7th November 1968.) The learned primary judge did not find it necessary to consider this alternative contention, which was not repeated before us and was, in my opinion, devoid of substance ; once the application for the exploration license had been granted, as it was on 28th November 1968, the land was then no longer the subject of an application for an exploration license ; that application, having been determined, was no longer subsisting. The sole question that remained therefore was whether the exploration license had been validly renewed. If it had, the warden, at the date of the decree, had no power to grant the appellant's applications. (at p433)

5. However at the hearing below, and again before us, the appellant objected that the Equity Court had no jurisdiction to make the declaration sought or, alternatively, that if there were jurisdiction the Court should in the exercise of its discretion have declined to grant any declaratory relief. These contentions arise at the threshold of the case and should be considered immediately. (at p433)

6. The jurisdiction of a judge of the Supreme Court of New South Wales sitting in equity to make a declaration of right was when the proceedings were instituted and when the decree was made conferred by s. 10 of the Equity Act, 1901 (as amended) (N.S.W.). To understand the effect of that section in its most recent form it is necessary to trace its history. Originally it reproduced s. 50 of the Chancery Procedure Act 1852 (U.K.) which, according to the decisions which interpreted it, enabled a declaratory decree to be made only if there was a right to some consequential relief which, if asked for, might have been granted by the court, or, in certain cases, by some other court : Walsh v. Alexander [1913] HCA 24; (1913) 16 CLR 293, at pp 304-305 The power of the court was extended in England by O. XXV, r. 5 of the Rules of the Supreme Court 1883 (Eng.), and by the Administration of Justice Act 1924 (N.S.W.) s. 10 was amended so that it substantially reproduced the words of that rule. However, New South Wales had not then adopted the Judicature Act procedure and common law and equity were separately administered within the Supreme Court ; this, indeed, remained the position until after the decree was made in the present proceedings. It was held by Harvey C.J. in Eq., in Tooth & Co. Ltd. v. Coombes (1925) 42 WN (NSW) 93, at p 94 that :

"the subject matter of this section is 'a suit in equity' a

well known form of procedure, viz. : a suit for equitable

relief or relating to equitable rights and titles."

This restrictive view, that s. 10 conferred on a judge sitting in equity jurisdiction to make a declaration of right only in proceedings for equitable relief or relating to equitable rights or titles, was adopted by this Court, although not without dissent : David Jones Ltd. v. Leventhal [1927] HCA 53; (1927) 40 CLR 357 ; see also Langman v. Handover [1929] HCA 42; (1929) 43 CLR 334 and Hume v. Monro [1941] HCA 39; (1941) 65 CLR 351 . However, in 1965, s. 10 was further amended. Sub-section (1) of that section then read as follows :

"In addition to the jurisdiction which is otherwise vested

in it, the Court shall have jurisdiction to make binding

declarations of right whether or not any consequential relief

is or could be claimed, and whether or not the suit in which

the declaration is sought is a suit for equitable relief or a suit

which relates to equitable rights or titles.

No suit shall be open to objection on the ground that a

merely declaratory decree is sought thereby".

"Without limiting the generality of the jurisdiction

conferred by subsection one of this section, the Court may by

decree or order declare -

(b) the interests, powers, rights and liabilities or duties of

any persons arising under -

(vii) any Act or any ordinance, rule, regulation or other

instrument having effect under any Act or by reason

of any executive, ministerial or administrative act

done or purporting to be done in pursuance of any

Act or of any such ordinance, rule, regulation or

other instrument."

This was the form of the section at the date of the decree. Although, at the date when the amending Act of 1965 was passed, law and equity were still separately administered in the Supreme Court of New South Wales, it cannot, in my opinion, be doubted that the object of the amendment to s. 10 in 1965 was to free the Equity Court from the restrictions that had been held to exist in Tooth & Co. Ltd. v. Coombes (1925) 42 WN (NSW) 93 and the cases that had followed that decision. The very words of Sir John Harvey, which had been repeatedly quoted in subsequent decisions, are used in the section. In Hume v. Munro [1941] HCA 39; (1941) 65 CLR 351, at p 369 , Williams J had said:

"In my opinion the principles laid down in the English

decisions relating to the construction of O. XXV, r. 5, apply

to s. 10, subject to any limitation that flows from the fact

that the court of equity only has jurisdiction where equitable

relief is sought or the right or title relied on is equitable."

The amendment to s. 10 removed this limitation. Thereafter the power of a judge sitting in equity in New South Wales to grant declaratory relief was as wide as that given to a judge of the High Court in England by O. XXV, r. 5. In Salmar Holdings Pty. Ltd. v. Hornsby Shire Council (1971) 1 NSWLR 192, at p 202 Mason J.A., as he then was, said:

"The jurisdictional limitations on the power to grant

declaratory relief are, therefore, no more extensive than the

limitations applicable to the power to grant declaratory

relief exercisable by a court under a judicature system."

I fully agree with these remarks as to the effect of s. 10 in its amended form. The detailed provisions of sub-s. (2) were, I think, unnecessary to achieve this result, but they do support this conclusion. (at p435)

7. The jurisdiction to make a declaration is a very wide one. Indeed, it has been said that, "under O. XXV, r. 5, the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion" : Hanson v. Radcliffe Urban District Council (1922) 2 Ch 490, at p 507 ; and see Barnard v. National Dock Labour Board (1953) 2 QB 18, at p 41 ; and Ibeneweka v. Egbuna (1964) 1 WLR 219, at p 225 . However, the jurisdiction may be ousted by statute, although the right of a subject to apply to the court for a determination of his rights will not be held to be excluded except by clear words : Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government (1960) AC 260, at p 286 . In the present case it was submitted that the Act reveals an intention that the decision of a warden to grant or refuse an authority to enter should not be subject to review in proceedings for a declaration under s. 10 of the Equity Act. (at p436)

8. With all respect, I find it difficult to see any reason why the Court should have lacked jurisdiction to declare that Jododex held the right which it claimed, namely the right of the holder of an exploration license validly renewed. There is no provision in the Act that gives to any other tribunal exclusive jurisdiction to decide the question whether a person is the holder of a valid exploration license, or that otherwise withdraws the determination of that question from the jurisdiction of the Supreme Court. Section 183 of the Act provides that:

"No proceedings under this Act shall be removable by

certiorari or otherwise into the Supreme Court."

That section obviously has no application to the present case, where no proceedings are sought to be removed. It has been held in the Supreme Court of New South Wales that prohibition will not lie against the grant by a warden of an authority to enter upon private lands : Ex parte Phillips (1906) 23 WN (NSW) 145 , followed in Ex parte Miller (1907) 7 SR (NSW) 214 . The reason given was that the warden when so acting is not a court, but prohibition may be directed to bodies other than courts if they perform quasi-judicial functions: R. v. Connell; Ex parte Hetton Bellbird Collieries Ltd. [1944] HCA 42; (1944) 69 CLR 407, at p 429 . However, it is not here necessary to consider whether the actual decision reached in Ex parte Phillips (1906) 23 WN (NSW) 145 was correct. The Supreme Court of New South Wales has also held that when a warden grants or refuses an application for an authority to enter, there are no "proceedings" within s. 168 of the Act and there is consequently no jurisdiction to state a case for the decision of the Supreme Court: Wake v. Murphy (1916) 16 SR (NSW) 523 ; Wallamaine Colliery Pty. Ltd. v. Cam & Sons Pty. Ltd. (1961) SR (NSW) 195 ; Keogh v. Heffernan (1961) SR (NSW) 535 . On the other hand, mandamus will lie to a warden who fails to hear and determine according to law an application for an authority to enter : Wade v. Burns [1966] HCA 35; (1966) 115 CLR 537 . However, these decisions, which indicate that one procedure is available and another is not to review the decision of a warden who grants or refuses an authority to enter, seem to me to have no relevance to the present question. There is nothing in the provisions considered in those cases that indicates a clear intention to exclude the power of the court to make a declaratory order. The Act does not provide a specific remedy to which the holder of an exploration license who seeks to establish the rights which it gives him is bound to resort. It was submitted that when s. 10 of the Equity Act was amended in 1965 the legislature did not intend by those general provisions to alter the effect of the special provisions of the Mining Act, which was the subject of considerable authority. The purpose of amending s. 10 was to provide a more extensive remedy of a general kind, and there is no possible justification for reading the section as though it contained words excepting from its operation cases arising under the Mining Act. Some reliance was placed by the appellant upon Toowoomba Foundry Pty. Ltd. v. The Commonwealth [1945] HCA 15; (1945) 71 CLR 545 where it was held that the decision of an independent tribunal acting under a statute or regulation cannot be challenged in an action claiming only a declaration that the decision is invalid. Since, in the present case, the warden has made no decision, Toowoomba Foundry Pty. Ltd. v. The Commonwealth [1945] HCA 15; (1945) 71 CLR 545 is distinguishable, and it is unnecessary to consider whether that case is consistent with later decisions of the House of Lords, such as Vine v. National Dock Labour Board (1957) AC 488 and Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government (1960) AC 260 . It is true that the purpose of Jododex in seeking a declaration was to forestall a possible contrary decision by the warden, but that does not mean that the validity of any proceeding by the warden is challenged in these proceedings : cf. Mutual Life and Citizens' Assurance Co. Ltd. v. Attorney-General (Cth.) [1961] HCA 51; (1961) 106 CLR 48, at p 54 (at p437)

9. It is neither possible nor desirable to fetter the broad discretion given by s. 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd. (1921) 2 AC 438, at p 448 , should in general be satisfied before the discretion is exercised in favour of making a declaration :

"The question must be a real and not a theoretical question ;

the person raising it must have a real interest to raise it ; he

must be able to secure a proper contradictor, that is to say,

some one presently existing who has a true interest to oppose

the declaration sought."

Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v. Egbuna (1964) 1 WLR, at p 225:

"After all, it is doubtful if there is more of principle involved

than the undoubted truth that the power to grant a declaration

should be exercised with a proper sense of responsibility and

a full realisation that judicial pronouncements ought not to

be issued unless there are circumstances that call for their

making. Beyond that there is no legal restriction on the

award of a declaration." (at p438)

10. In the present case the question whether Jododex held a valid exploration license was in no way hypothetical. Jododex had a real interest to establish the validity of the license and thus ensure that the warden would not grant the authorities to enter which the appellant sought. The appellant had a real interest to contest Jododex's claim which if upheld must result in the refusal of the appellant's applications. If it be assumed, contrary to the decided cases, that Jododex could have obtained prohibition if the warden had wrongly granted the appellant's applications, the existence of the alternative remedy would not require the Court to refuse to make a declaration. In the first place, a declaration would be a more satisfactory remedy than prohibition, being quicker, simpler and attended by less doubts. Even if this were not so, it seems to me, on principle, that a plaintiff should not necessarily be refused one form of relief because another is available in the same court : cf. Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government, per Lord Goddard (1960) AC, at p 290 (at p438)

11. The question whether the Court should make a declaration which would have the effect of deciding a question in issue in pending proceedings may often be of some difficulty. It is of course important that the proceedings in the present case were not pending in an ordinary court. However, there were some obvious reasons why a judge should hesitate before intervening when the matter was about to come before the warden. It was, of course, possible that the warden would give effect to the contention that Jododex held a valid exploration license and would therefore refuse to grant any authority to enter to the appellant. The warden might have declined to grant the appellant's applications for some other reason. Moreover, if it were ultimately held that Jododex's contention ought to fail, the proceedings before the warden would have been delayed and the appellant would have been put to additional cost and inconvenience. On the other hand, to determine the existence of the right which Jododex sought to establish, it was necessary to ascertain the true meaning and effect of a statutory provision and of an instrument in statutory form. These were pure questions of construction such as would appropriately be decided in the Supreme Court. They were difficult questions, and apparently rights of considerable value depended on the answers to them. When all these conflicting considerations are weighed, it seems to me that it cannot be said that it was not a proper exercise of judicial discretion to proceed to make a declaration in all the circumstances of the case. (at p439)

12. It was however submitted that the exercise by the learned primary judge of his discretion was vitiated by some mistakes of fact and law. The learned judge considered that Jododex had no clear right or status to appear before the warden when the applications for authorities to enter were being considered. He said,

"The holder of an exploration license must wait in the wings

in the hope that a mining warden, dealing ex parte and in a

ministerial capacity with an application for an authority to

enter, will not overlook either the existence of his exploration

license or its effect as a statutory bar to the grant of the

authority to enter."(1971) 2 NSWLR 299, at p 307

In fact Jododex, as owner of part of the land in question, had a right to appear before the warden, and even if it be true that an owner is given such a right only to enable him to deal with such questions as rent and compensation it seems quite unlikely from a practical point of view that Jododex would have failed to avail itself of the opportunity to apprise the warden of the existence of the exploration license and of its effect as a statutory bar. Moreover, the primary judge considered that Jododex would not have been able to correct, by prohibition or stated case, any error of law in a decision made by the warden, and although this was an accurate statement of the effect of the authorities, it is as I have said, open to question whether the decisions that would deny the availability of prohibition are correct. If, however, it be assumed that the learned primary judge was mistaken on these points, it would in my opinion be wrong for us, at this stage, to decline to determine the substantial questions involved, which have been fully argued before us ; every consideration of convenience requires that we should now decide the questions in issue between the parties, and if appropriate make a declaration of right. (at p439)

13. The submission of the appellant was that the Minister had no power to renew the exploration license for a period of six months from 28th November 1969 because the application for the renewal was not made within the time prescribed by s. 83B (13) (b). If that submission were correct it would follow that the subsequent purported renewals were also bad. If, however, that contention failed, it was not suggested that there was any other ground on which it could be urged that the license was not in force at the time when the inquiry was appointed to be heard by the warden or at the date of the decree. In particular, it was not submitted that any of the subsequent renewals were bad, provided that the first renewal was good. No explanation was given of the selection of 29th May 1971 rather than 28th May 1971 as the date from which the latest period of extension was expressed to run, but no point was made of this apparent irregularity. The final period of extension has expired since the date of the decree ; we were not told whether Jododex has made, within time, an application on which a further renewal may be granted, if the first renewal is held good. (at p440)

14. Section 83B (13) (b) requires that an application by the holder of an exploration license for its renewal shall be made "during the currency of such license . . . and not later than one month before the expiry of such license". The appellant submitted that on the proper construction of the exploration license 28th November 1968, on which day the license was executed, was included in the period of twelve months for which the license was granted. If this were so, the license would have expired on 27th November 1969 and the application for renewal, which was made on 28th October 1969, would certainly have been made too late. (at p440)

15. The exploration license was granted "for the term of twelve months from the date hereof", that is, from 28th November 1968. The question is whether the term commenced at the beginning, or at the end, of that day. Where a written instrument requires a period of time to be computed "from" a specified date, it depends on the true construction of the instrument whether the date specified is to be included in the period. Generally speaking, however, the day from which the period runs is excluded, although there is no rigid rule to that effect, and "from" is capable of having an inclusive effect in an appropriate context. These propositions seem to me established by the authorities : see in Australia, Associated Beauty Aids Pty. Ltd. v. Federal Commissioner of Taxation [1965] HCA 20; [1965] HCA 20; (1965) 113 CLR 662, at pp 668 and 671 , and in England, South Staffordshire Tramways Co. v. Sickness and Accident Assurance Association (1891) 1 QB 402, at p 405; Goldsmiths' Co. v. West Metropolitan Railway Co. (1904) 1 KB 1, at pp 4, 5 ; Stewart v. Chapman (1951) 2 KB 792, at pp 797-799 ; Cartwright v. MacCormack (1963) 1 WLR 18, at pp 22-23 ; and Trow v. Ind Coope (West Midlands) Ltd. (1967) 2 QB 899, at pp 916-917, 921-922, 923 . In particular, where the term of a lease is expressed to commence "from" a specified day, the term will, prima facie, commence at midnight on the day specified, and will last during the whole anniversary of the day from which it began, unless a different intention is revealed in the document : Ackland v. Lutley (1839) 9 Ad & E 879 (112 ER 1446) ; Kemp v. Palmer (1889) 20 NSWR (Eq) 1; Meggeson v Groves (1917) 1 Ch 158, at p 164; Ladyman v Wirral Estates Ltd (1968) 2 All ER 197, at p 200; cf Sidebotham v Holland (1895) 1 QB 378; Ex parte Le Tonge (1911) 11 SR (NSW) 96; and W H Brakespear & Sons Ltd. v. Barton(1924) 2 KB 88, at pp 94-96 (at p441)

16. There is nothing in the nature of an exploration license that would render inappropriate this prima facie rule of construction, but the submission on behalf of the appellant was that a number of provisions of the license indicate an intention to include 28th November 1968 as the first day of the term. The license states that "This license is granted subject to such rights and interests as may be lawfully subsisting in such land at the date hereof . . ." Clearly enough, "the date hereof" in this provision means 28th November 1968 and the license is rendered subject to rights and interests subsisting at that date. It was submitted that anomalies might arise if the term did not commence until 29th November because there might be rights or interests which still subsisted on 28th November but which terminated on that date. I find it impossible, from a practical point of view, to imagine any right or interest to which the license was intended to be subject throughout the whole of the term notwithstanding that the right or interest itself came to an end on 28th November. The object of requiring that the rights and interest to which the license should be subject must be subsisting at a specified date was to exclude rights and interests that might subsequently come into existence, and the fact that 28th November was, naturally enough, selected as the date specified for this purpose seems to me to provide no assistance in deciding the question whether the term was intended to commence at the beginning or at the end of that day. Reference was also made to cl. 2 of the license which provides that "The Licensee shall immediately commence and unless otherwise authorised shall thereafter continuously proceed to carry out . . . such surveys and other operations as are hereinafter specified . . ." The word "immediately" in this clause does not mean at the very moment the license is signed. It means as quickly as is reasonably possible. Obviously the clause does not compel the licensee to do anything before the commencement of the term. In my opinion, it throws no light on the question when the term commenced to run. Finally, reference was made to cl. 2 of the special conditions which provides that "The area granted shall be exclusive of all titles . . . validly held prior to 9.30 a.m. on 20th March 1967, and still so held . . ." It was submitted that "still" in this condition meant on the date of signing the license. This may be so, but it does not follow that the date of signing is therefore intended to be included in the term. None of the provisions relied upon by the appellant in my opinion reveals any intention that in calculating the period of twelve months for which the license was granted 28th November 1968 should be included. In my opinion, therefore, effect should be given to the prima facie rule as to the effect of the preposition "from" and it should be held that the term began at midnight on 28th November 1968 and therefore did not conclude until midnight on 28th November 1969. (at p442)

17. The appellant relied on the decision of the Court of Appeal of the Supreme Court of New South Wales in Ex parte Turnbull ; Re Storey (1967) 85 WN (Pt 1) (NSW) 730 . In that case it was held that an authority to enter "for a period of twelve months commencing from 4th January 1965" was no longer operative on 4th January 1966. The Court appears to have taken the view that what was granted was an immediate authority to enter, or, in other words, an authority that took effect on the day when it was granted. Jacobs J.A. further thought that an authority to enter from a future date would have been invalid and that the document should not be given a construction that would defeat its efficacy. With all respect, there seems to me nothing in the nature of an authority to enter that would necessarily require the authority to operate from the very moment of its grant and nothing in the Act that would render an authority invalid simply because it was granted for a period of twelve months commencing on the day after its execution. There appears to have been nothing in the context of the authority from which it appeared that the day on which the authority was granted was intended to be included in the period of the authority and, in my opinion, the learned Judges of Appeal gave insufficient weight to the prima facie rule to which I have referred. I am therefore unable to agree that this decision was correct. (at p443)

18. Although the appellant is unsuccessful in his primary submission, that is not the end of the matter. Before us, the appellant advanced an alternative argument, which was not put to the learned primary judge, that even on the assumption that the license expired at the last moment of 28th November 1969 an application made on 28th October 1969 was not made "not later than one month before the expiry of such license". In effect, it was submitted that the words of the section require that the application be made a full or clear month before the date of expiry, or, in other words, that a month must elapse between the date of the application and the date of expiry, excluding both dates from the calculation. If this is correct the application was made one day too late. (at p443)

19. In support of this submission the appellant relied heavily on a recent decision of the Court of Appeal, Carapanayoti & Co. Ltd. v. Comptoir Commercial Andre & Cie. S.A. (1972) 1 Lloyd's Rep 139 . In that case a contract for the sale of Nigerian groundnuts, c.i.f. a range of alternative ports, contained a clause which read :

"If the Groundnuts are sold to two or more ports Northern

range at Buyer's option, the port of destination shall be

declared by the last Buyer to his Seller not later than 21

days before commencement of shipment period . . . "

The buyers declared the port of destination on 11th January 1968 and the shipment period commenced on 1st February 1968. It was held that the buyers had not made their declaration in time. The Court of Appeal reached this decision by giving effect to what they regarded as the natural meaning of the words of the condition. Megaw L.J. said (1972) 1 Lloyd's Rep, at p 144:

"In my view, the ordinary and natural effect of the words

'not less than 21 days before commencement of shipment

period' is that if the first day of the shipment period is Feb. 1,

the notice cannot properly be given later than Jan. 10. It is

'later than 21 days before' unless at least 21 days - meaning

21 full or clear days - intervene between the day on which

the notice is given and the day on which the shipment period

begins."

Lord Denning M.R. (1972) 1 Lloyd's Rep, at p 142 and Stephenson L.J. (1972) 1 Lloyd's Rep, at p 145 expressed similar views. Further their Lordship considered that this result was supported by authority ; I shall shortly refer to some cases, Australian as well as English, which are relevant to this question. Finally it was said (1) that if the condition were ambiguous the ambiguity should be resolved in favour of the sellers, for whose benefit the condition was inserted, in accordance with a principle stated by Lord Esher M.R. in In re North ; Ex parte Hasluck (2) as follows :

"A fair rule of construction seems to be that where the

computation is to be for the benefit of the person affected as

much time should be given as the language admits of, and

where it is to his detriment the language should be construed

as strictly as possible." (at p444)

20. If the matter had been res integra it might have been thought to be a nice question whether a statute requiring an act to be done "not later than" or "at least" or "not less than" so many days before a given event meant that the act must be done so many clear days before that event. However, the effect of the words "at least" and "not less than" has been considered in a long series of authorities. In Reg. v. Justices of Shropshire (3), it was held, following Zouch v. Empsey (4), although not without some doubts, that a provision requiring a notice of the grounds of appeal to be given "fourteen days at least" before the first day of sessions meant fourteen clear days. This case has been regarded as settling the meaning of "at least", at any rate prima facie, and it has frequently been followed. It has been held that a section which required that a document nominating a candidate should be delivered "seven days at least" before the day of the nomination meant seven days exclusive both of the day of the nomination and the day of delivery : Ex parte Hurst ; In re De Clouet (5) ; that a requirement that notice should be given by a council "one month at least" before fixing a level meant one clear month : Kilpatrick v. Mayor of Prahran (6) ; and that a provision of the Liquor Act (N.S.W.) that notice must be given "at least fourteen days before" an application for a license meant fourteen clear days and that the Licensing Court had no jurisdiction to entertain an application if notice had been given on the fourteenth day before the application : Ex parte McCance ; Re Hobbs (7). Similarly, it has been held that if "at least five days'" notice of a meeting is to be given, five clear days' notice must be given : Mount Oxide Mines Ltd. v. Gould (8), and see Mercantile Investment and General Trust Co. v. International Co. of Mexico (1893) 1 Ch 484 n ; at p 489 n ; a contrary decision in Anglo-Australian Investment, Finance and Land Co. Ltd. (1894) 4 BC (NSW) 63 is opposed to authority. The meaning of the expression "not less than" so many days gave rise to some initial fluctuation of opinion : Chambers v. Smith [1843] EngR 1002; (1843) 12 M & W 2 (152 ER 1085) , but since that decision the use of the words "not less than" so many days has been regarded as indicating that so many clear days must elapse between two acts or events : In re Railway Sleepers Supply Co. (1885) 29 Ch D 204 ; In re Hector Whaling Limited (1936) 1 Ch 208 ; Bear v. Official Receiver [1941] HCA 41; (1941) 65 CLR 307, at pp 311, 318 ; Associated Dominions Assurance Society Pty. Ltd. v. Balmford [1950] HCA 30; (1950) 81 CLR 161, at p 183 ; Reg. v. Long (1960) 1 QB 681 A different view has been taken in relation to notices to quit : Schnabel v. Allard (1967) 1 QB 627, but that case apparently depends on the special rules of the law of landlord and tenant. Whatever doubts may have originally existed, and however nicely balanced the arguments may have originally been, it is now, as Chitty J. said in In re Railway Sleepers Supply Co. (1885) 29 Ch D, at p 208 , "better . . . to adhere to settled rules". Where an instrument prescribes that a period of time must elapse between one event and another, the words "at least" or "not less than" should, unless the context or the subject matter reveals a contrary intention, be regarded as indicating that a clear or full period of time must expire between the two events. Although the phrase "not later than" has not received so much judicial attention, it seems to me indistinguishable in meaning in this sort of context from "at least" or "not less than". With respect, I agree with the remarks of Megaw L.J. in Carapanayoti & Co. Ltd. v. Comptoir Commercial Andre & Cie S.A. (1972) 1 Lloyd's Rep, at p 145:

"True, one has always to look at the particular words used

in the particular contract. But in that context I should not

be prepared to accept the suggestion that the phrase 'not

later than 21 days before' should be regarded as producing

a different legal result from 'at least 21 days before' or from a

clause which incorporates the words 'not less than 21 days

before'. Such distinctions in my view would be a discredit

to the law." (at p445)

21. I therefore respectfully agree that the decision in Carapanayoti & Co. Ltd. v. Comptoir Commercial Andre & Cie S.A. (1972) 1 Lloyd's Rep 139 is in complete accord with the earlier authorities. Moreover, the decision is, in my opinion, indistinguishable from the present case. It is true that in Carapanayoti & Co. Ltd. v. Comptoir Commercial Andre & Cie S.A. (1972) 1 Lloyd's Rep 139 the notice was to be given not later than twenty-one days before commencement of the shipment period, whereas in the present case the application was to be made not later than one month before the expiry of the license. However, although the shipment period began at the commencement of the relevant day, and the license expired at the end of the relevant day, this makes no difference when one is computing a period of time before that day. It has been held, ever since Lester v. Garland [1808] EngR 326; (1808) 15 Ves Jun 248 (33 ER 748) , that as a general rule the law takes no account of fractions of a day ; see also Prowse v. McIntyre (1961) 111 CLR 264, at pp 270, 280 . As Sir William Grant M.R. said in Lester v. Garland (1808) 15 Ves Jun, at p 257 (33 ER, at p 752):

"The effect is to render the day a sort of indivisible point ;

so that any act, done in the compass of it, is no more referrible

(sic) to any one, than to any other, portion of it ; but the act

and the day are co-extensive."

Although the exploration license did not expire until midnight on 28th November 1969, its expiry must be regarded as co-extensive with 28th November 1969. In deciding whether the application was made "not later than one month before the expiry" it is therefore necessary to exclude the day of the expiry and to inquire whether the full period of one month had expired between the day on which the application was made and 28th November 1969. "Month" in the section means "calendar month" : s. 21 (d) of the Interpretation Act, 1897 (N.S.W.). A full calendar month before 28th November 1969 ended on 27th November 1969 ; it follows that it began on 28th October 1969. The application made on 28th October 1969 was therefore made within the month before the expiry of the license ; in other words, it was made "later than one month before" the expiry. (at p446)

22. It seems to me that s. 35 (ii) of the Interpretation Act, 1897 (N.S.W.) provides no assistance in the construction of s. 83B(13) (b). Section 35 (ii) reads :

"The time prescribed or allowed in an Act for the doing of

a particular thing shall, unless the contrary intention appears,

be taken to exclude the day of the act or event from or after

which the time is to be reckoned, but to include the day for

the doing of that thing."

The section obviously deals with the case where the time prescribed or allowed for doing a thing is to be reckoned from or after an act or event ; that is not the effect of s. 83B (13) (b). In any case it has been held that the use of words such as "at least" or "not less than" would constitute a sufficient indication of an intention to exclude the application of s. 35 (ii) (Ex parte McCance : Re Hobbs (1926) 27 SR (NSW), at p 39 ; Bear v. Official Receiver (1942) 65 CLR, at p 318 ) and the words "not later than" would have a similar effect. (at p447)

23. If the principle mentioned in In re North ; Ex parte Hasluck (1895) 2 QB 264 were applicable to the present case it might well lead to a result different from that which it had in Carapanayoti & Co. Ltd. v. Comptoir Commercial Andre & Cie S.A. (1972) 1 Lloyd's Rep 139 since it might be said that s. 83B (13) (b) operates to the detriment of Jododex and should therefore be construed as strictly as possible. On the other hand, it may be said that s. 83B (13) (b) is for the benefit of other persons who may seek to obtain rights with regard to mining the land formerly subject to an exploration license. However this may be, the rule laid down in In re North ; Ex parte Hasluck (1895) 2 QB 264 only applies where the provision in question is ambiguous ; once it is accepted that "not later than" indicates that a period of a clear month is specified the section is no longer ambiguous and there is no room for the application of this principle. (at p447)

24. It was assumed before the learned primary judge that if the exploration license expired on 28th November 1969 the application for renewal was made "not later than one month before the expiry" as prescribed by s. 83B (13) (b). For the reasons I have given I consider that this assumption was erroneous. I hold that the application was not made "not later than one month before the expiry of such license". The Minister therefore had no power to grant a renewal and it is conceded that in that event the subsequent renewals were also made without power. (at p447)

25. It may seem unfortunate that Jododex, which has spent large sums in prospecting under its exploration license, should have lost its rights because its application for renewal was lodged one day too late. We, however, are in no position to remark on the supposed merits of the case and can only give effect to the provisions of the Act. At the date of the hearing before the warden Jododex did not hold an exploration license affecting the land in question and it has not been shown that the provisions of s. 46 (4) of the Act precluded the grant to the appellant of the authorities to enter for which he applied. It follows, therefore, that the declaration sought by Jododex should have been refused. (at p447)

STEPHEN J. In this matter I have had the advantage of reading the reasons for judgment of my brother Gibbs. I agree in all that is there said of the appellant's submissions concerning the Equity Court's jurisdiction to make the declarations sought, the particular exercise of that jurisdiction in the present case and the Minister's alleged want of power to renew the respondent's exploration license on 28th October 1969 based upon the contention that the original license expired on 27th November 1969. These were all matters argued before Street J. at first instance and in my opinion the appellant fails as to each of them for the reasons set out at length in the judgment of Gibbs J. (at p448)

2. In addition to the above contentions a wholly new submission on behalf of the appellant, not argued before the learned primary judge, was advanced for the first time at the hearing in this Court. It concerns the requirement, in s. 83B (13) (b) of the Mining Act, 1906-1969 (N.S.W.), that application for renewal of an exploration license be made ". . . not later than one month before the expiration of such license . . ." If such a period did not intervene between application for renewal and expiration of the license the Minister would lack power to grant the renewal and, in the outcome, the declaration sought by the respondent should have been refused, this appeal being allowed. (at p448)

3. Three preliminary points should be noted ; first, as Gibbs J. has held, the term of the respondent's license did not expire until the end of the day of 28th November 1968 ; secondly, "month" in this sub-section means "calendar month" - Interpretation Act, 1897 (N.S.W.) s. 21 (d) - that is to say, a period beginning on a day in one month and ending one day before the corresponding day in the next month ; thirdly, and again for the reasons stated by Gibbs J. this period of a calendar month must be a whole or clear period so that its first day is wholly after the occurrence of the making of the application for extension and its last day is wholly before the occurrence of the expiration of the license. (at p448)

4. It follows that the first day of the clear calendar month must be 29th October 1969, the day after the making of the application for extension ; the last day will therefore be 28th November 1969. The question is whether that day is a clear day in the relevant sense in view of the fact that the license expired at the end of that day. (at p448)

5. No doubt the more usual situation is one in which the terminating date, or, for that matter, the commencing date, of a period is marked by an act the performance of which can be assigned to a particular day and will occur at some time on that day, so as to divide that day into two fractions, before and after the doing of that act. In those circumstances, if clear days are called for, the day of the doing of the act cannot be counted as one of them since only a part of it will be available for reckoning. (at p449)

6. But where, as here, the terminating event is not the doing of an act but the expiration of the term of a license, which occurs not so as to divide a day into fractions but at the very end of a day, quite different considerations appear to me to arise. The license is co-terminous with the last day of its term ; that last day is a whole or clear day. As Kitto J. said in Prowse v. McIntyre (1961) 111 CLR 264, at p 274:

"the beginning of a day is nothing but the end of the day

before, and the end of the day is nothing but the beginning of

the next ; just as the eastern boundary of a piece of land is

identical with the western boundary of contiguous land."

It seems to me that no question arises here of the application of the maxim that the law takes no account of parts of a day because there are no parts of a day of which account can be taken. The relevant day, 28th November 1969, was not broken into parts by the happening of the expiration of the license ; instead that happening was coincidental with the ending of that day. (at p449)

7. In In re North ; Ex parte Hasluck (1895) 2 QB 264, at p269 Lord Esher M.R., speaking of the calculation of periods of time, said that "the rational mode of computation is to have regard in each case to the purpose for which the computation is to be made"; whatever purpose is served by the requirement that an application for renewal shall precede by a clear month the expiry of a license that purpose is satisfied if the last day of that month is also the last day of the term of the license. Any third parties who may require due warning of the application for renewal will thus have been afforded the full time which the legislation contemplates, namely a clear calendar month, before the license expires. (at p449)

8. The appellant referred to the recent decision of the Court of Appeal in Carapanayoti & Co. Ltd. v. Comptoir Commercial Andre & Cie. S.A. (1972) Lloyd's Rep 139 , a case in which the buyer of a cargo was required to declare the desired port of destination not later than twentyone days before "commencement of shipment period", defined as "February-March 68". It was held that in counting back from a date to ascertain whether the buyer had made his declaration within time it was necessary to begin on 31st January rather than on 1st February. This is doubtless so where what is being counted back from is the beginning of a period which began on 1st February. But where what is being counted back from is a precise time which occurs at the very expiration of a particular day no reason, in logic, appears to exist for omitting that day in the process of counting back, nor is the Carapanayoti Case (1972) Lloyd's Rep 139 an authority to the contrary (at p450)

9. It is for the foregoing reasons that I conclude that in the process of reckoning a period of one clear calendar month before the expiration of the relevant license the full day which precedes the moment of that expiration, namely 28th November 1968, is properly to be included in the computation. If this be done the application is found to have been made within time. (at p450)

MASON J. In my opinion the appeal should be dismissed. I have come to the conclusion that the application made on 28th October 1969 by the respondent Jododex for a renewal of its exploration license was made "not later than one month before the expiry of such license" within the meaning of s. 83B (13) (b) of the Mining Act, 1906, as amended, and that the renewal granted on that application and the renewals subsequently granted were validly granted. Subject to the remarks which follow, in all other respects I am in agreement with the reasons for judgment prepared by Gibbs J. (at p450)

2. I approach the question relating to the validity of the renewals on the footing that the exploration license which was granted for the term of twelve months "from the date hereof", the date of execution by the Minister being 28th November 1968, commenced at the end of that day. The alternative construction offered by the appellant was that "from" should be read as signifying from the commencement of that day. In rejecting the appellant's construction I should prefer to say that when the character and provisions of the license are examined, no reason emerges for thinking that the word "from" should not be given the exclusive quality which it usually possesses, in particular where an interest for a term is created as in the case of leases. Gibbs J. has pointed out that the matters relied upon by the appellant do not provide support for the construction which is urged on his behalf. Indeed, in my opinion the obligation cast upon the licensee by cl. 2 to "immediately commence . . . such surveys and other operations . . ." would have come into operation at the earliest moment of the day, before the license was actually signed by the Minister, if the appellant's argument were correct. The provision therefore confirms the view that "from" is used in its usual sense. (at p450)

3. The decision of the Court of Appeal in Ex parte Turnbull ; Re Storey (1) related to an authority to enter, not to an exploration license. Based as it was on a consideration of the differently expressed provisions of ss. 50 and 51 of the Mining Act, 1906-1964, the decision cannot provide a decisive guide to the construction of the provisions of the statute relating to exploration licenses and to the terms of the particular license now under consideration. I can discern nothing in s. 83B which would invalidate the grant of an exploration license expressed to commence from the expiration of the day on which it was executed by the Minister. Nor is there any provision in the Act which impels the conclusion that an exploration license must necessarily commence from the beginning of the day on which it was granted. The requirement that the license shall be dated the day of execution by the Minister (s. 83B (12)), the obligation of the applicant to lodge a bond in the form prescribed with a surety within twenty-eight days of notification of approval of the application (s. 83B (11)) and the requirement that the license fee for the whole term be paid in advance (s. 83B (14)) are all consistent with the existence of a power in the Minister to grant a license for a term expressed to commence at the expiration of the day on which it was executed by the Minister. (at p451)

4. If it were necessary to decide the point, I should be prepared to take a different view of the question which arose in Ex parte Turnbull ; Re Storey (1967) 85 WN (Pt 1) (NSW) 730 . The decision of the Court seems to have been based not so much on the construction of the authority to enter, as on a view taken of the effect of ss.50 and 51 of the Act. In my opinion these provisions did not have the effect of necessarily making the authority to enter commence at the beginning of the day on which it was granted, nor did they prohibit the warden from granting an authority expressed to commence at the expiration of that day. Even if it be assumed that there was some limitation to be gathered from the statue that inhibited a warden from granting an authority expressed to commence from a time in the future, it seems unduly restrictive to say that he was bound necessarily to grant an authority expressed to commence from the beginning of the day of grant and that he could not validly grant an authority expressed to commence from the end of that day. (at p451)

5. As to the meaning of the expression "not later than one month before the expiry of such license" in s. 83B (13), I accept that it requires that the application for renewal be made a clear month before expiry, that a full month must elapse between the application and the expiry. But in my opinion acceptance of this proposition does not have the consequence thathat the application for the first renewal was out of time. (at p452)

6. The Court of Appeal decision in Carapanayoti & Co. Ltd. v. Comptoir Commercial Andre & Cie. S.A. (1972) 1 Lloyd's Rep 139 is not inconsistent with this conclusion. There the buyer's declaration on 11th January 1968 was held to be "not later than twenty-one days before commencement of shipment period" when the shipment period commenced on 1st February 1968. The Court approached the matter by excluding the day of the event, namely 1st February, the commencement of the shipment period, and counted backwards for the full period. However, it is clear that the commencement of the shipment period was the beginning of 1st February 1968 and it was therefore proper to exclude the day. Here the exploration license expired not at the beginning of 28th November 1968, but at the end of that day. (at p452)

7. Megaw L.J. expressed himself in more general terms when he said(1972) 1 Lloyd's Rep, at p 144: "In relation to what may be called the exlusion clause you always exclude the day of the event, and you then . . . come forward or backwards, as the case may be." These remarks assume that the event may or will take place on the day referred to, rather than at the end of that day. They were not intended to apply to a situation where, as here, the event takes place when the day is spent. (at p452)

8. The exploration license expired at the end of 28th November 1968, that is, at midnight, which happens to be the commencement of the next day. As it did not expire until the day had passed, it cannot be said to have expired on 28th November 1968 so as to relate back to the commencement of that day, by reason of the principle that the law takes no notice of fractions of a day of because in the eye of the law a day is punctum temporis. (at p452)

9. The reasoning which lies behind the decisions respecting the time at which a person attains a particular age is at variance with the view which I have expressed (see Prowse v. McIntyre (1961) 111 CLR 264 ). This reasoning is based in part on the remarks of Lord Holt in Fitzhugh v. Dennington (1704) 2 Lord Raym 1094, at p 1095 [1790] EngR 1498; (92 ER 225, at p 226) , where it was said :

"The end of seven years was the last day of the seven years,

for there is no fraction of a day ; and after twelve o'clock at

night is after the seven years, for the day is not the end of the

seven years, but post expirationem. For the beginning and

end of a thing is part of the thing." (at p452)

10. I agree entirely with what Kitto J. had to say concerning these observations in Prowse v. McIntyre. His Honour there said (1961) 111 CLR, at p 274:

"The error of thought is revealed in Lord Holt's aphorism

that 'the beginning and end of a thing is part of the thing'.

To use the words 'beginning' and 'end' in relation to a day as

if parts of a day could be identified as the first and last parts

of the day respectively is to misapply them. The beginning

of a day is nothing but the end of the day before, and the end

of the day is nothing but the beginning of the next. . . . . .

Consequently, when it is said, as it is in some of the cases, that

full age begins at 'the first moment' of that day, the word

'moment' cannot be taken to refer to some point of time after

the day has begun. It cannot refer to anything but the

beginning of the day ; and that, as I have said, is the same

thing as the end of the day before." (at p453)

11. Although I accept the authority of earlier decisions, of which Prowse v. McIntyre (1961) 111 CLR, at p 274 is the most recent example, in my opinion they should not be held to govern the interpretation of s. 83B (13) of the Mining Act the purpose of which was to require that an application for renewal of an exploration license should be made at such a time that a clear month elapses between the making of the application and the actual expiry of the lease. If the statute had referred to "the day on which" the license expires, a different question would have arisen. That is not this case. (at p453)

12. Had the license been expressed to be for a term of twelve months commencing on 29th November 1968 the term would have been identical, the point of commencement and the point of expiry would have been the same. The license would have expired at midnight between 28th and 29th November 1969. Had the license been so expressed, an application for its renewal, if made on 28th October 1969, would have been within time and good. Yet it is said the application for renewal of the instant license was out of time and bad. It is not a distinction which I would willingly accept. (at p453)

13. I am of opinion that the applications for the renewals were made within time and that the renewals were valid. (at p453)

14. In my opinion the appeal should be dismissed. (at p453)