MATTER : Objection KR14/001 by DAVID GUESTS to application for exemption from expenditure conditions KR73/001 by PLUTONIC OPERATIONS LTD affecting Mining Lease M47/223

Application for a Writ of Certiorari against the Warden sitting at Karratha, His Worship Paul Nicholls SM

Certiorari - Mining Warden - Application for exemption from expenditure conditions - Order that applicant provide further and better particulars - Warden sitting in administrative capacity - Whether power to make order - Whether arguable case for order nisi

Mining Act 1978 (WA)

Gardner v WMC Resources Ltd [2000] WASC 59

Perpetual Trustees WA Ltd v City of Joondalup, unreported; SCt of WA (McKechnie J); Library No 990195; 16 April 1999

Re Capobianco, Principal Building Surveyor of the City of Melville; Ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1008

1 ROBERTS-SMITH J: This is an application for an order nisi a writ of certiorari to quash a decision made by a Mining Warden sitting at Karratha on 1 May 2001 ordering that the applicant provide further and better particulars of its application for exemption from expenditure conditions in respect of a mining lease held the applicant ("the mining lease"). The ground on which the application is made is that the learned Warden erred in the purported exercise of his jurisdiction under the Mining Act 1978 (WA) by finding that he had the power to order that the applicant provide the particulars.

2 Although strictly speaking the application was made ex parte, the notice of originating motion dated 8 June 2001 was in fact served on the objector, David Guests, as was the affidavit of Abigail Webster in support, sworn 8 June 2001 and Mr Guests (who in these reasons I will describe as "the objector") was represented on the hearing of the application by Mr Workman.

3 Plutonic Operations Ltd ("Plutonic") is the registered holder of Mining Lease 47/223. Plutonic is a related company of Homestake Gold of Australia Ltd ("Homestake") which has the responsibility for managing mining tenements held by companies within Australia related to it, including Plutonic.

4 Ms Webster is the legal counsel and company secretary of Homestake. According to her affidavit, on 29 January 2001 the Tenement Manager of Homestake, Mr Stuart House, prepared and signed an "Application for Exemption from Expenditure Conditions" ("the Exemption Application") in relation to the mining lease and sent that application to the Mining Registrar at Karratha ("the Registrar"). On 13 March 2001, Homestake received a letter from the Registrar dated 9 March 2001 which enclosed Objection No KR14/001 by David Guests against the application.

5 On 19 March 2001, Homestake received a letter from Statewide Tenement and Advisory Services Pty Ltd ("Statewide") dated 14 March 2001, also enclosing a copy of the objection and advising that Statewide had been instructed to act on behalf of the objector.

6 On the same date, Homestake received a second letter from Statewide also dated 14 March 2001. That enclosed a summons to Plutonic in respect of Plaint No 13/001 by the objector. The plaint complained that Plutonic had failed to comply with the expenditure conditions applicable to the tenement for the year ending December 2000 and sought the relief that the mining lease be recommended for forfeiture and the objector be granted a right of priority to mark out the ground the subject of it.

7 By letter dated 23 March 2001, Homestake wrote to the Warden requesting the objection to the application and the plaint be transferred to the Warden's Court in Perth.

8 By letter dated 5 April 2001 the Registrar advised Homestake that the matters had been listed in the Karratha Warden's Court on 3 April and Homestake's request for transfer to the Perth Warden's Court had been refused. The Registrar advised that the matters had been adjourned to 1 May 2001 for mention although there was no requirement to attend that day.

9 On 11 April 2001 Homestake received a letter dated 10 April from Michael Workman, Lawyer, enclosing certain documents by way of service. One of those was a request for further and better particulars of the Exemption Application ("the request"). I shall return to this below.

10 On 17 April 2001 Homestake wrote to the Registrar giving details of the witnesses Plutonic expected to call on the hearing and giving Plutonic's preferred date. According to Webster's affidavit, the author of that letter (Mr Stuart House) was not aware of the letter from the objector's solicitor dated 10 April 2001.

11 On 4 May 2001, Homestake received a letter from the Registrar dated 2 May 2001 which advised that:

"The above matters were listed for mention in the Karratha Wardens Court on 1 May 2001. In accordance with a request from counsel for the plaintiff/objector dated 30 April 2001, the warden ordered as follows;

ORDERS:-

(a) The applicant for the exemption do file and serve further and better particulars of the reasons for exemption in answer to the Request for Further and Better Particulars of Application for Exemption dated 10 April 2001, within 14 days.

(b) Both exemption application and Plaint for Forfeiture adjourned for mention to 6 June 2001.

(c) The parties and their solicitors be excused from attendance at the further mention hearing provided written submissions are made with regard to a date for hearing and any other procedural orders sought."

12 Webster deposes that prior to receiving the Registrar's letter of 2 April, House was not aware that any request for particulars was going to be pursued at the mention on 1 May 2001. Webster further deposes that she is informed by House and her solicitors that not personally attending on a mention date outside Perth is a practice that is accepted by the Wardens. She notes further that there was no date for compliance with the request on the face of it nor in the covering letter, no application to the Warden for an order for further and better particulars was enclosed under cover of the lawyer's letter dated 10 April 2001 and having made enquiries within Homestake, she believes that neither Plutonic nor Homestake at any time received any written application nor any notice of any proposed oral application to the Warden for an order to provide the further and better particulars sought. From correspondence and telephone conversations she has had with the Registrar, Webster's understanding is that counsel for the objector made application to the Warden on 1 May 2001 on an ex parte basis with no notice given to Plutonic nor Homestake.

13 On 7 May 2001, Webster spoke by telephone to the Registrar about the order and subsequently on the same date sent two facsimile transmissions to him. They were in effect submissions on behalf of Plutonic that certain authorities should be brought to a Warden's attention in any application by a plaintiff/objector for an order for further and better particulars and complaining that the objector did not notify Plutonic of its intention to seek such an order on 1 May 2001. The second facsimile transmission ran to some 18 pages of submissions quoting a number of authorities which Plutonic contended supported its argument that the Mining Warden had no power to make the order. Plutonic sought to have the matter revisited by the Warden in a hearing on 8 May 2001. On that date Workman sent a facsimile message to the Registrar requesting an adjournment of the Plutonic application to 6 June 2001 (being the mention date previously allocated) and sent a copy of that to Homestake.

14 Webster sent a facsimile transmission to the Registrar that day referring to Workman's message and submitting that as Workman had already been heard on the issue, an adjournment was not necessary.

15 As things transpired, the Warden was unable to deal with Plutonic's application on 8 May. On 18 May Workman wrote a letter which was in effect a submission in response to the submission previously made on behalf of Plutonic. Webster provided a short written response to the Registrar by facsimile dated 22 May 2001, but by letter dated the same day, the Registrar advised that the Warden had instructed him that Plutonic's submissions had been considered but he had made no amendment and that the orders were to stand.

16 Webster thereafter instructed Plutonic's solicitors to prepare the present application.

17 The principles to be applied on such an application are clear. To obtain an order nisi under O 56 Rules of the Supreme Court, the applicant need only show there is an arguable case for the relief sought: Savage v Teck Explorations Limited, unreported; FCt SCt of WA; Library No 7285; 16 September 1988.

18 Although such an application may be made ex parte (O 56 r 1) in fact the documents were served on the objector's solicitor and he appeared on the hearing to oppose the application. His submission is that the application for certiorari could not possibly succeed - there is no arguable case - and so the order nisi must be refused. On the other hand, the applicant urges upon me that in the circumstances the application for certiorari would inevitably succeed and so the order nisi should issue.

19 To understand the submissions advanced on the hearing for the order nisi it is necessary to refer to Plutonic's Exemption Application. That was dated 29 January 2001. It seeks exemption from the obligation to expend $11,000 each year for the three years 2000, 2001 and 2002.

20 The application is in Form 18 as prescribed under s 102 of the Mining Act and reg 54 of the Mining Regulations. Under the heading "Exemption Details", item (g) requires "reasons for exemption". That block has been completed as follows:

"Sections 102(2)(b), 102(2)(e) and 102(7) of the Mining Act 1978

That time is required to evaluate work done on the mining tenement, to plan future exploration or mining or raise capital therefor. That the ground the subject of the mining tenement contains a mineral deposit which is uneconomic but which may reasonably be expected to become economic in the future or that at the relevant time economic or marketing problems are such as not to make the mining operations viable."

21 It is apparent that the words there set out are drawn directly from the statutory provisions to which reference is made.

22 The applicant seeks to argue before the Full Court that the Warden had no power to order the provision of further and better particulars of its application. The assumption underlying this proposition is that in making the order, the Warden was purporting to exercise the judicial power of a Mining Warden under the Act. So it is that the applicant submits that when hearing an application for exemption or an objection to such an application and/or a plaint for forfeiture of a mining lease, a Warden sits in an administrative and not a judicial capacity. There can be no doubt now that such is the case: Re Calder; ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525 as affirmed by a Full Bench of five Judges in Re Malley SM; ex parte Gardner [2001] WASCA 29.

23 The applicant's argument in light of those authorities will be that Part VII of the Mining Act 1978 does not apply to the present proceedings and thus nor are the Local Court Rules imported under s 136 of that Act. It will be further submitted the Mining Warden sitting administratively is not a court and cannot exercise any inherent jurisdiction in that regard. On these premises it will be contended that the Warden had no power to order the provision of further and better particulars. Put in this way, the applicant's case that the Warden had no power to make the order is patently arguable.

24 Counsel for the objector however, concedes that the Warden was acting administratively and that the Local Court rules of procedure are not imported into this procedure, but he contends the application for certiorari must fail because the Warden must necessarily have had administrative authority to make the order.

25 These submissions are founded upon the statutory requirements and procedures which relate to the making of an application for exemption. The starting point is s 102 of the Mining Act. Section 102(1) requires that an application is to be made "as prescribed". Subsection (2) sets out the various grounds upon which an application for exemption may be made. As already observed, they are the grounds which are reflected verbatim under item (g) in the application lodged by Plutonic. Subsection(3) provides that there may be other grounds as prescribed or approved by the Minister. The application here makes no reference to any other grounds.

26 Regulation 54 of the Mining Regulations requires an application for exemption to be made in accordance with Form 18. Regulation 90 provides that forms under the Mining Act and Regulations shall be completed in accordance with such directions as are specified on the form.

27 Mr Workman points out that item (g) requires the "reasons for exemption" to be given and submits that the applicant's indorsement in respect of that sets out the statutory grounds but not the reasons upon which exemption is sought. He points out further that they are also completely uncertain, being expressed in the alternative (eg "that time is required to evaluate work done on the mining tenement, to plan future exploration or mining or raise capital for ....") and the objector simply cannot know upon which of these bases the application is in fact being made. The further and better particulars sought by the objector and subsequently ordered by the Warden seek the reasons why the applicant is relying upon each of the grounds set out.

28 To express it in very short terms, the objector's submission is that there has not been proper compliance with the statutory requirements in that the information required by the prescribed forms has not been provided and the Warden must have power to require such compliance before dealing with the application. He relies on Savage v Teck Explorations Ltd (supra) and Ex parte Peko Exploration Ltd v GHK Mining Pty Ltd, unreported; FCt SCt of WA; Library No 970613; 14 November 1997.

29 Both of those decisions emphasised the importance of compliance with the need properly to particularise the basis of claims and defences in proceedings before the Warden.

30 In Peko, Ipp J (with whom Malcolm CJ and Kennedy J agreed) said (at 5 supra):

"The legislative provisions relating to the use of the forms identified are designed to ensure that when applications for exemptions and forfeiture come before the Warden, the issues are properly defined. The various forms are, of course, not pleadings strictly speaking, but they fulfil a similar purpose. Proper compliance with the forms results in the issues being crystallised and the parties involved being given reasonable notice of the case each has to meet. As with pleadings, the parties are informed about the matters which are truly in dispute, they become able to prepare properly for the hearing, and the admissibility of the evidence at the hearing is thereby facilitated.

In Savage v Teck Explorations Ltd ... Malcolm CJ observed:

'While the rules of pleading may have no application with respect to an application for forfeiture, the defendant in such proceedings is clearly entitled to know with some degree of certainty what grounds are alleged as the basis for the application.'

The system constituted by the forms enables this to be achieved."

Neither of those cases was concerned with the power of a Warden to order particulars. In Savage the Warden refused leave to amend the objector's plaint; in Peko the Warden refused to allow evidence to be given beyond the circumstances detailed in the application.

31 Mr Workman distinguishes Re Calder and Re Malley on the basis that they concerned orders for discovery and for the issue of a subpoena respectively and those processes are directed to the obtaining of evidence; that is quite a different thing from the authority of a Warden to require an applicant to state its reasons for exemption in compliance with the prescribed forms.

32 Against this background it seems to me the first question would be whether or not the Warden was purporting to exercise judicial or administrative power; if the Full Court were to find it was the former, then on the authority of Re Calder and Re Malley, it would seem the applicant must succeed. If the Full Court were to consider the Warden was exercising administrative authority, it would then need to consider whether that could extend to making the order made here. In my view that is very much an open question. Mr Workman has put forward a well reasoned argument but there is obviously also a strong argument the other way.

33 I am satisfied that whichever way this matter is looked at, the applicant has an arguable case and that being so, the order nisi must issue.