Court of Appeal (WA)|2003-06-12|Before: Barker J

Global Doctor Ltd v Hodgkinson & Anor [2003] WASCA 119 (12 June 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GLOBAL DOCTOR LTD -v- HODGKINSON & ANOR [2003] WASCA 119

Mining Act 1978 (WA) - Appeal - Jurisdiction of Warden's Court to grant declaratory relief in relation to registration of Form 5 expenditure reports after prescribed date - Whether proceedings in respect of a "right" in, under or in relation to a mining tenement or purported mining tenement - Whether proceedings relating to a matter in respect of which jurisdiction is conferred under a provision of the Act on the Warden - Whether jurisdiction to make consequential order to amend register

Mining Regulations 1981 (WA), reg 32, reg 106(1)

De Vries v Smallridge [1928] 1 KB 482

Hondros & Tholet v Chesson [1981] WAR 146

International Oil Lease Service Corp v Australian Energy Limited (1991) 2 Qd R 166

Smith v Liebig (1926) 26 WALR 10

Smith v Smith (1925) 2 KB 144

1 At all material times Global Doctor Ltd (the appellant) was the holder of three mining leases pursuant to the Mining Act 1978 (WA). On 14 November 2001, the respondent (as plaintiff) filed three plaints under the Mining Act for hearing by a Warden in open court seeking the forfeiture of each of the mining leases. Each plaint alleged non-compliance with the expenditure covenant or condition of the mining lease.

2 On 7 December 2001, the appellant lodged Form 5 expenditure reports with the Department of Mineral and Petroleum Resources. The Department (which is the "Department" referred to in s 11 of the Act) then entered those reports on the Register maintained by the Department under the Mining Regulations. The expenditure reports purported to be in compliance and in conformity with the requirements of the Act and Regulations.

3 On 22 February 2002, the respondent (again as plaintiff) filed a further plaint in the Warden's Court at Perth in which it sought relief to the effect that the Form 5 expenditure reports lodged with the Department were accepted by the Department and recorded by the Department in the Register contrary to law; and a further order that the Register be amended by deleting from the Register the details of those reports and specifying in the Register that the expenditure for the year ending 18 September 2001 was "Nil".

4 On 18 July 2002, Warden G N Calder SM in the Warden's Court at Perth made orders to that effect.

5 The appellant now appeals against the declaration and order made by the learned Warden pursuant to s 147(1) of the Mining Act.

6 The appeal involves consideration of the extent of the jurisdiction and powers of a Warden's Court under the Mining Act.

7 The covenants and conditions of mining leases are prescribed by s 82 of the Act. The conditions include those set out in subs (1)(c) and (e) to the following effect - that the lease shall:

"(c) comply with the prescribed expenditure conditions applicable to such land unless partial or total exemption therefrom is granted in such manner as is prescribed;

....

(e) lodge with the Department at Perth such periodical reports and returns as may be prescribed."

8 The reference in s 82(1)(e) to the "Department" is a reference to the Department of the Public Service of the State established to assist the Minister in the administration of the Act, to which s 11 of the Act refers.

9 The expression "expenditure conditions" used in the condition expressed in s 82(1)(c) is defined by s 8(1) as follows:

"[I]n 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."

10 Another condition of a mining lease is that set out in s 82(1)(g), namely, that the lease is granted subject to a condition that the lessee shall:

"(g) be liable to have the lease forfeited if he is in breach of any of the covenants or conditions of the lease, if he fails to comply with any requirement under section 84A(1) in relation to the lease or if a report required under paragraph (e) or section 115A in relation to the land the subject of the lease is not filed in accordance with this Act."

11 The Mining Regulations made under the Act deal, amongst other things, with reports required under s 82(1). Regulation 32(1) requires as follows:

"The reports required under section 82(1) of the Act shall be in the Form No 5 in the First Schedule and filed within 60 days after -

(a) each anniversary date of the commencement of the term of the lease;

(b) the surrender, forfeiture, expiry or other cancellation of the lease; and

(c) the surrender of any portion of the lease, relating to all work done during the tenure of the lease on that surrendered portion,

or within such further period as the Minister may approve prior to the date due for filing of the reports."

12 By s 98(1) of the Act, any person may apply to the Warden for the forfeiture of a mining lease where the requirements of the Act are not being complied with in respect of the expenditure conditions applicable to the lease.

13 Section 98 sets out the procedure to be followed and the process by which a mining lease may be forfeited following the making of the application. The application for forfeiture must be heard in "open court by the warden": s 98(3). Where the Warden finds that the holder of the mining lease has failed to comply with the expenditure conditions, the Warden may recommend the forfeiture of the lease or impose a penalty not exceeding $5000 as an alternative to the forfeiture or dismiss the application: s 98(4)(a). The Warden shall not recommend forfeiture unless satisfied that the non-compliance is in the circumstances of the case of sufficient gravity to justify forfeiture: s 98(5). After the hearing the Warden must forward a report with the recommendation, if any, on the application to the Minister: s 98(6).

14 On receipt of a report recommending forfeiture, the Minister may declare the mining lease forfeited or impose a penalty not exceeding $5000 as an alternative to forfeiture, or award the whole of the penalty or any part thereof to the applicant who applied for forfeiture or determine not to forfeit the lease or impose any penalty: s 99(1).

15 Where a mining lease is forfeited, pursuant to s 99 the applicant for forfeiture has, for a period of 14 days after the date of publication of the notice of forfeiture, a right in priority to any other person to mark out or apply for, or both, a mining tenement upon the whole or any part of the land that was the subject of the forfeited lease: s 100(2).

16 It is noted that while the holder of a mining lease is liable to have the lease forfeited if in breach of any of the covenants and conditions of the lease by virtue of s 82(1)(g), it is only in respect of the non-compliance with the expenditure condition that any person may apply to the Warden for the forfeiture of the lease. Thus, it is not open to any person to apply to the Warden for the forfeiture of a mining lease because the holder of the mining lease has failed to lodge with the Department at Perth a report in the Form No 5 in the First Schedule, as required by reg 32(1). The Minister, therefore, retains the right to cause the forfeiture of the lease for breach of its covenants or conditions at general law, but subject to the terms of the Mining Act: see s 97 and the right of appeal against forfeiture created by s 97A.

17 The reason why any person is entitled to apply to the Warden for forfeiture of a mining lease under s 98 is to be explained by the object of the Act identified by the Full Court of this Court in Nova Resources NL v French (1995) 12 WAR 50. Rowland J (with whom Kennedy and Pidgeon JJ agreed) stated (at 57) that:

"The objects and aims have existed generally in all mining legislation throughout Australia for many years. In recent times, new forms of tenements have been introduced to support these objects. The primary object, so far as it impacts on this case, is to ensure as far as practicable that land which has either known potential for mining or is worthy of exploration will be made available for mining or exploration. It is made available subject to reasonably stringent conditions and if these, including expenditure conditions, show that the purposes of the grant are not being advanced, then the Act and regulations make provision for others who have an interest in those purposes on that land to apply for forfeiture so they may exploit the area. There is power for a tenement holder to seek exemption from complying with certain conditions for cause, and one assumes that it is not only for record purposes that a Form 5 must be filed each year."

18 By virtue of the above provisions of the Act and Regulations, the appellant was obliged to file Form 5 expenditure reports in respect of the three mining leases on or before 19 November 2001, that is to say, within 60 days of the anniversary date of the commencement of the term of the three leases. The Form 5 expenditure reports were not filed by the required date. However, they were lodged with the Department on 7 December 2001, less than three weeks later. At no time had the Minister extended the period within which the Form 5s had to be filed.

19 However, prior to the appellant causing lodgement of the Form 5 expenditure reports the respondent (plaintiff) on 14 November 2001 filed plaint numbers 9, 10 and 11H/012 seeking the forfeiture of each of the three mining leases held by the appellant. Each plaint alleged non-compliance with the expenditure requirement for the period ending 18 September 2001.

20 After the appellant lodged the Form 5 expenditure reports with the Department on 7 December 2001 in purported compliance with the respective expenditure conditions of the mining leases, the respondent (as plaintiff) filed a further plaint, namely, plaint number 32H/012 dated 22 February 2002 in the Warden's Court at Perth. By this further plaint the respondent sought the following relief:

"1. A declaration that each of the Form 5 reports for the expenditure year ending 18 September 2001 for each of the Tenements and lodged with the Department on 7 December 2001 was:

(a) accepted by the Department; and

(b) recorded by the Department in the register for the respective Tenements;

contrary to law.

2. A declaration, in the alternative an order, that the register for each of the Tenements be amended by:

(i) deleting from the register the details of the Form 5 Report lodged on 7 December 2001;

(ii) specifying in the register the expenditure for the expenditure year ending 18 September 2001 as 'nil';

3. Costs."

21 This further plaint was heard in the Warden's Court at Perth by Warden G N Calder SM. The learned Warden made a declaration substantially in the terms sought in par 1 of the relief claimed and also made an order in terms of par 2: see Hodgkinson v Global Doctor Ltd and Minister for State Development [2002] WAMW 11.

The primary issue on this appeal: the question of jurisdiction

22 The appellant now appeals against that decision of the learned Mining Warden pursuant to s 147(1) of the Act. The appellant challenges the jurisdiction or power of the Warden's Court to make a declaration and order in the terms made by the learned Mining Warden.

23 The Warden's Court purported to invoke an equitable jurisdiction in granting the relief sought in respect of the plaint. Whether or not courts or tribunals in the State of Western Australia other than the Supreme Court have the power to grant equitable relief in relation to any matter depends upon the express terms of the legislation setting up that court or tribunal and investing it with jurisdiction.

24 The Supreme Court has such a jurisdiction by virtue of s 16(1)(d) of the Supreme Court Act 1935 (WA). In Commercial Developments Pty Ltd v Mercantile Mutual Insurance Ltd (1991) 5 WAR 208 Malcolm CJ (with whom Pidgeon and Rowland JJ agreed) held that, while several rules of law and equity enacted and declared by the Supreme Court Act also apply in the District Court "as far as the matters to which those rules relate are respectively cognisable by the Court", this does not empower the District Court to grant equitable relief in the form of a declaration of entitlement to an indemnity, which constitutes a claim for principal relief: see 5 WAR at 217

25 The primary issue in this appeal is whether the terms of the Mining Act 1978 which set up the Warden's Court invest it with the jurisdiction to grant the equitable remedy of a declaration, or at least a declaration of the type granted by the learned Warden, as well as the power to make an order concerning the amendment of the Register maintained by the Department of the type made by the learned Warden.

26 In effect, as can be seen from the terms of the relief granted by the learned Warden, he not only declared the acceptance and recording by the Department of the Form 5 reports after the expiration of the 60-day period "contrary to law", but he also ordered that the Register be amended by deleting from the Register the particulars of the lodgement and filing of the Form 5 reports and by specifying in the Register that the expenditure claimed for the expenditure year ending 18 September 2001 is "Nil".

27 If a proceeding such as the plaint proceeding had been commenced in the Supreme Court, one might surmise that the plaintiff would either have sought a declaration concerning the validity of the receipt and recording by the Department of the Form 5 reports or, alternatively, sought a writ of certiorari to quash the decision of the Department to receive the Form 5 reports, as well as respectively either a mandatory injunction or a writ of mandamus requiring amendment of the Register by the Department according to law.

The purpose of the plaint for a declaration

28 As it may bear upon the proper determination of the primary issue it is necessary to explain why the plaint seeking equitable relief was thought necessary. It is to be explained by the clarification of the jurisdiction or the power of a Warden in "open Court" (not the "Warden's Court") to deal with an application under s 98 of the Act for the forfeiture of a mining lease.

29 In Commercial Properties Pty Ltd v Italo Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 7427; 16 December 1988 the Full Court of this Court, on an application for writ of certiorari in respect of a decision of a Mining Warden, quashed so much of the Warden's decision in which she had found no evidence of sufficient gravity to justify forfeiture of tenements and instead imposed a penalty of $500. The evidence put before the Warden included the fact that the Register disclosed that no Form 5 expenditure reports had been filed in respect of the tenements. The Warden did not accept that proof of the contents of the Register as such was prima facie evidence of non-compliance (although, in the circumstances of the case, in the absence of any other evidence she was prepared to infer that prima facie there had not been compliance.) The Full Court suggested that, on the evidence, three possible inferences were open:

(1) No compliance had in fact occurred with the expenditure conditions on each of the prospecting licences;

(2) The expenditure conditions had been complied in whole or in part but reports of such expenditure had not been filed pursuant to reg 16;

(3) The expenditure conditions had been complied with, the reports had been filed, but particulars of expenditure had not been recorded in the Register after lodgement of the reports.

30 At page 14 of the unreported decision, Malcolm CJ (with whom Pidgeon and Nicholson JJ agreed) observed that:

"In a case of a plaint for forfeiture on the ground of non-compliance with the expenditure conditions the plaintiff is required to prove a negative. The expenditure conditions under the Mining Act 1978 replaced the labour conditions under the Mining Act 1904. In relation to that Act the tenement could be placed under observation and evidence given of a lack of relevant activity or a lack of personnel carrying out any relevant activity. Expenditure conditions stand on a different footing. They may be complied with by desk studies of data gathered from earlier work on the tenement which may mean that in any particular period no actual work would be observed on the tenement. In such circumstances any expenditure not reported to the Department and recorded on the register constitutes expenditure within the knowledge of the defendant. In the case of failure to comply with expenditure conditions the legislation contemplates forfeiture. Hence, upon prima facie proof of non-compliance, we consider the plaintiff likewise establishes a prima facie case for forfeiture. Thus, in such circumstances, the evidentiary burden is on the defendant to satisfy the Warden that the case is otherwise not of sufficient gravity to justify forfeiture. This may be done, for example, by showing that the non-compliance with expenditure conditions was occasioned by a strike. See s 96(7)."

"In our opinion, this is a case where silence or non-production of information on the part of or by the defendant furnished sufficient evidence in the light of available inferences to warrant a conclusion in favour of the plaintiff. The reason for this is that such silence or non-production either made the drawing of the second and third inferences listed above impossible, or resulted in a situation where, on the balance of probabilities, a conclusion in terms of the first inference would result. The evidence of expenditure being within the knowledge of the defendants, very little would have been enough to displace the first inference. Hence, it was clearly open to the learned Warden to infer that there had been a total failure to comply with the expenditure conditions in the sense that there had been no expenditure in the relevant period."

32 In light of the decision in Italo Nominees it followed that, whenever a plaintiff in a forfeiture application tendered a relevant extract from the Register maintained by the Department, which disclosed that there was no Form 5 expenditure report, there was prima facie evidence before the Court that compliance with the expenditure conditions had not in fact occurred. It then remained for the tenement holder, if it wished, to go into evidence to negative that inference.

33 In a plaint for forfeiture where a Form 5 expenditure report goes into evidence, it would appear to be open to the Mining Warden to draw an inference from material before him that expenditure incurred was or was not "in mining or in connection with mining": see, for example, R v Warden P M Heaney SM; Ex parte Flint v Nexus Minerals NL, unreported; FCt SCt of WA; Library No 970065; 26 February 1997.

34 At the time of decisions such as Nova Resources, Italo Nominees and Ex parte Flint v Nexus Minerals NL, it was generally thought that on a plaint for forfeiture the plaintiff could require discovery of documents and subpoena witnesses to appear at the hearing of the plaint. It also seems to have been thought at those times that the failure of a tenement holder to file a Form 5 expenditure report within the required period could be remedied by the belated filing of the report. In Nova Resources (at 55) Rowland J made reference to the evidence concerning expenditure and the "belatedly filed Form 5's". Similarly, in Ex parte Flint v Nexus Mineral NL the Form 5 report appears to have been filed more than three months after the anniversary date of the tenement. In neither of these cases was the point taken that the Warden could not make inferences from the information in the late-filed Form 5 expenditure reports.

35 However, the practical ability of a plaintiff in a forfeiture application to adduce relevant evidence in support of a plaint was made difficult by the decision of the Full Court of this Court in Re His Worship Calder SM; Ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525 (Gardner No 1). Both Ipp and Wallwork JJ (who delivered separate judgments with which Pidgeon J agreed) ruled that there is a distinction under the Act between the Warden sitting in "open court", which denotes the Warden exercising an administrative function, and the Warden sitting as the "Warden's Court", which denotes the Warden exercising a judicial function. Where the Warden merely performs an administrative function, the Warden is not empowered to order discovery of documents. In Re Malley; Ex parte Gardner [2001] WASCA 29 (Gardner No 2) the decision was affirmed by a five member court and the Court further held that the Warden in open court, exercising an administrative function, is not empowered to issue a subpoena to require a person to attend the hearing of the Warden in open court.

36 It follows that, because the hearing of an application for forfeiture of a mining lease under s 98 is before the Warden in open court, there is no power in the Warden in relation to the hearing of such an application either to require a tenement holder to provide discovery or further discovery of documents or to require any person to respond to a subpoena to attend the hearing to give evidence in relation to a matter in issue.

37 It was specifically contended by the applicant in Gardner No 2 that the interpretation of the different functions of a Warden under the Mining Act determined by the Court in Gardner No 1 made it particularly difficult for a plaintiff to succeed on a forfeiture application and seemingly contradicted the objects and aims of the Act, by making it virtually impossible for any person to bring a forfeiture application. While Gardner No 2 failed on the basis that the proceedings constituted an abuse of process of the Court, the very same issue having already been determined in respect of the same subject matter and concerning the same parties in Gardner No 1, a number of members of the Court expressed their views concerning the applicant's submission that the Warden sitting in open court hearing a forfeiture application is a "toothless tiger unsupported by any mechanism of practice and procedure". Owen J, without agreeing that this is a consequence of Gardner No 1, observed (at 42) that, "it is as a result of the language that Parliament has chosen to employ. If there is a mischief, the remedy lies with the legislature". Parker J (at 50) made a similar observation. Wheeler J agreed (at 52) with the reasons of Malcolm CJ, as well as with the further comments of Owen J. McKechnie J confirmed the result in Gardner No 1 in respect of the power of a Warden sitting in open court to require further discovery of documents, but dissented from the majority in expressing the view (at 102) that the Warden should nonetheless be considered to have the power to issue a subpoena, on the ground that it is a necessary ingredient of the grant of power to receive evidence, in the hearing of a forfeiture application, that there is an "incidental power" to compel witnesses to attend at the time of the hearing and to bring with them such maps and other documents as might be referred to in their testimony.

38 In the present case, by virtue of the relief granted by the Warden's Court in the further plaint, the first respondent was able to pursue his forfeiture plaints on the more advantageous evidentiary basis described in Italo Nominees. In other words, relief of the type granted by the Warden's Court on the plaint assisted the first respondent in the prosecution of his forfeiture applications to the greatest extent possible under the terms of the Mining Act, as declared by this Court in Gardner No 1 and Gardner No 2.

39 In the appeal before me there is some suggestion in the submissions of counsel for the respondent that the reasoning of the Warden's Court in support of his decision to assume jurisdiction to grant the relief sought should be upheld because it advances the objects and aims of the Act by facilitating, or making more effectual, the right of any person to apply for forfeiture of a mining lease under s 98.

40 The further plaint here was before the "Warden's Court", not the Warden in "open court". Accordingly, the Warden was asked to exercise a judicial function. The question is whether he had jurisdiction to do so.

41 The Court must turn to the terms of the Mining Act itself to determine the jurisdiction and the powers of the Warden's Court. Section 132(1) of the Act, which appears in Pt VIII - "Administration of justice" - states the jurisdiction of the Warden's Court in these terms:

(1) A warden's court has jurisdiction to hear and determine all such actions, suits and other proceedings cognizable by any court of civil jurisdiction as arise in respect of -

[enumerated matters (a) - (l) are then set out],

and generally all rights claimed in, under or in relation to any mining tenement or purported mining tenement, or relating to any matter in respect of which jurisdiction is under any provision of this Act conferred upon either the warden's court or the warden."

42 Section 134 of the Mining Act deals with the "Powers of warden's court". Subsection (1) confirms the existence of particular powers, including in respect of the power to grant a declaration in relation to particular matters. It also provides the power to make orders on all matters "within its jurisdiction" and generally "for the determination and settlement of all actions, claims, questions and disputes properly brought before the warden's court, and for the enforcement and carrying out of any order previously made ... ". Subsection (5) further specifically provides that:

"Subject to this Act and without affecting the jurisdiction of a warden's court, a warden's court or the warden, as the case may require, has and may exercise in relation to all matters relating to any civil proceeding under this Act the like powers and authorities as are conferred upon the Supreme Court or a Judge thereof."

43 These general powers, including those set out in subs (5) of s 134, do not, in my opinion, purport to extend the jurisdiction of the Warden's Court, but to make co-extensive with the powers of the Supreme Court or a Judge thereof, the powers of a Warden's Court when acting within jurisdiction.

44 It is accepted by the parties that none of the enumerated matters in pars (a) - (l) of subs (1) of s 132 are relevant here. They deal with specific matters such as: (a) the area, dimensions, or boundaries of mining tenements; (b) the title to, and ownership or possession of, mining tenements or mining products; (e) specific performance of contracts relating to mining tenements or mining; (g) trusts relating to mining tenements or mining; (j) encroachment or trespass upon, or injury to, land by reason of mining, whether the land is held under this Act or otherwise; (l) the partition, sale, disposal or division of any mining property, or the proceeds thereof, held by two or more persons having conflicting interests therein. The enumerated matters generally relate to the nature of the mining tenement, the act of mining, or what might be called "ownership" issues that might affect the act of mining. None of the enumerated matters suggest that the Warden's Court has a jurisdiction specifically to determine the validity of the act of acceptance of a Form 5 report by the Department filed after the due date or of a record made thereof in the Register maintained by the Department under the Regulations.

45 However, what is clear from s 132(1) is that the Warden's Court has jurisdiction to hear and determine all actions, suits and other proceedings "cognizable by any court of civil jurisdiction", if it is in respect of the various matters referred to. This quoted expression is similar in some respects to the expression "cognizable by the Court" that appears in s 57 of the District Court of Western Australia Act 1969 (WA) that was considered in Commercial Developments Pty Ltd v Mercantile Mutual Insurance Ltd (supra). The effect of s 57(1) of the District Court of Western Australia Act is that the several rules of law and equity enacted and declared by the Supreme Court Act apply "as far as the matters to which those rules relate are respectively cognizable by the court". In Commercial Developments, the Full Court held that, before the District Court may apply such rules of law and equity, there must be a principal action within the express jurisdiction of the District Court in respect of which particular forms of legal and equitable relief are ancillary.

46 However, in the case of the Warden's Court, s 132 confers on the Warden's Court jurisdiction to hear and determine "all such actions, suits and other proceedings cognizable by any court of civil jurisdiction as arise in respect of" the enumerated matters and the more generally stated matters mentioned after the enumerated matters. Thus, the Warden's Court's power to grant equitable relief is not ancillary to its power to deal with a principal action that is within jurisdiction, but limited by reference to subject matter. In other words, s 132(1) vests the Warden's Court with the same jurisdiction that the Supreme Court - which is a "court of civil jurisdiction" - would have in respect of the enumerated matters, and the more generally stated matters.

47 If there were some dispute in respect of one of the enumerated matters - for example, the title to, and ownership or possession of, mining tenements or mining products - the Warden's Court would have jurisdiction to hear and determine an action, suit or proceeding in respect thereof by virtue of s 132(1)(b) of the Act; and to grant such relief in respect thereof as the Supreme Court could in relation to such a dispute.

48 The further plaint for a declaration and the order to amend the Register is not within any of the enumerated matters. Thus, the question arises whether the proceeding (to use a general phrase that is intended to encompass an "action, suit or proceedings") is in respect of any of the more generally stated matters. In that respect, the question is whether the plaint proceeding for a declaration can be characterised as one that "arises in respect of ... generally all rights claimed in, under or in relation to any mining tenement or purported mining tenement, or relating to any matter in respect of which jurisdiction is under any provision of this Act conferred upon either the warden's court or the warden". This question may be further refined into the question whether the proceeding for declaration is one that "arises in respect of" a "right":

• "claimed in a mining tenement or purported mining tenement"; (emphasis supplied)

• "claimed under a mining tenement or purported mining tenement"; (emphasis supplied)

• "claimed in relation to a mining tenement or purported mining tenement"; (emphasis supplied)

• "relating to any matter in respect of which jurisdiction is under any provision of the Mining Act conferred upon either the warden's court or the warden".

49 The use of expressions such as "as arise in respect of", "in relation to", "relating to" and "in respect of", when used in statutory contexts such as those here under consideration, no doubt have the effect of broadening the jurisdiction of the Warden's Court beyond that which it would have if those words were not used. However, the particular effect such expressions have depends on the particular statutory context in which they are used. For example, in O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356, the High Court was required to determine the extent of the jurisdiction of the Warden's Court under s 80(1) of the Mining Act 1968 (Qld), which conferred on that Court exclusive jurisdiction in all actions "arising in relation to mining or to any mining tenement". Without limiting the generality of that conferral, the subsection also gave jurisdiction to the Warden's Court "with respect to ... (g) any matter arising between miners in relation to mining on Crown land".

50 In an action in the Supreme Court of Queensland a plaintiff sought a declaration that a joint-venture agreement between himself and a company for the conduct of mining operations on a mining lease had been determined and an order appointing statutory trustees for sale of the lease. The company had counterclaimed for a declaration that the plaintiff's purported rescission of the agreement was invalid and for an order that the plaintiff appoint representatives to the joint-venture committee pursuant to the agreement. It was not in issue that the plaintiff's claim fell within the exclusive jurisdiction of the Warden's Court, but the question was whether the company's counterclaim was an action "arising in relation to mining" or "with respect to any matter arising between miners in relation to mining".

51 As to the use of the verb "arising", Brennan J (dissenting in the result) (at 363) stated that jurisdiction to entertain proceedings "which may arise" is no different from jurisdiction to entertain proceedings "arising", for jurisdiction can be exercised only in proceedings which do arise, that is, in proceedings which are commenced. His Honour (at 364) indicated that the critical question in the case was not whether the proceeding on the counterclaim had arisen, but whether the proceeding which had arisen is "in relation to" mining or mining tenements. Alternatively, if the case were to be approached through par (g), the question was not whether a "matter" had arisen; the critical question was whether the parties to the counterclaim are "miners" and whether the matters between them relates to mining. Brennan J stated:

"The phrase 'in relation to' imports a connexion between proceedings (in the first paragraph of s 80(1)) or 'any matter arising between miners' (in par (g)) on the one hand and 'mining' on the other: see Perlman v Perlman [1984] HCA 4; (1984) 155 CLR 474, at 484. No doubt the connexion which the phrase imports is a question of degree. In Central Queensland Speleological Society Inc v Central Queensland Cement Pty Ltd (No.1) [1989] 2 Qd R 512, at 516, Thomas J proposed this criterion of the requisite connexion: a proceeding 'will need to arise directly in relation to mining as such'. Derrington J (at 528) said 'there must be a real and direct relationship between the subject matter of [the] action and mining or a mining tenement'. And de Jersey J (at 533) held that the connexion between the proceedings in that case and mining, though clear, was not 'sufficiently close ... to warrant the conclusion that the proceedings "arise in relation to" mining'. With respect, I am unable to accept these propositions. In the first place, the statutory definition of 'mine' when used as a verb includes 'to carry on any operation with a view to or for the purpose of winning mineral ...': s 7(1) of the Act. Therefore, mining, for the purposes of s 80(1), extends beyond what would ordinarily be understood by the phrase 'mining as such'. Next, directness is not a criterion which inheres in the language of s 80(1). I would agree that the relationship must be between the proceeding or matter and the activity of mining; not merely between the proceeding or matter and some other activity: see Reg v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185, at pp 197 - 198. But the relationship between a proceeding (or a matter) and the operation of mining must, in one sense, always be indirect. The relationship of a proceeding with mining must consist in the affection of the rights and liabilities of those involved or seeking to be involved in the carrying on of operations which come within the definition of 'mining' by reason of their involvement or sought involvement in those operations. And the relationship between a matter and mining must consist in a dispute about the rights and liabilities of those involved or seeking to be involved in the carrying on of operations which come within the definition of 'mining' by reason of their involvement or sought involvement in those operations. ... There may well be a sufficient connexion between proceedings or a matter on one hand and mining on the other, albeit the connexion is indirect, where there is a significant degree of connexion. Provided the connexion is not so exiguous as to be insignificant, or to be remote and merely incidental, the connexion is a 'real' one, and jurisdiction to entertain the proceeding or to hear and determine the matter is vested exclusively in the Wardens Court. The phrase 'in relation to' is wide in its connotation and cannot be limited by a priori formulae designed to exhaust its meaning."

52 Brennan J concluded that the counterclaim fell within the general words of the first paragraph of s 80(1) as a proceeding "in relation to mining".

53 McHugh J (at 376) agreed with the reasons for judgment of Brennan J and observed that:

"What connexion or association will be sufficient to bring proceedings within s 80(1) must be a matter of judgment on the facts of each case. But, as long as the connection between the proceedings and the subject matter of mining or a mining tenement is not so remote as to be insignificant, then, subject to s.80A, the Wardens Court has exclusive jurisdiction over those proceedings."

"In some cases, the connexion between the rights and liabilities of the parties and the mining or mining tenement may be quite close; in other cases, it may be neither close nor direct. The connection or association will usually be sufficient, however, if a proposed or actual operation of mining or the alleged or actual existence of a mining tenement is the matter which has brought about the need to define the rights and liabilities of the parties."

54 Dawson, Toohey and Gaudron JJ (who constituted the majority) concluded that the counterclaim was not a proceeding "in relation to mining". Dawson J (at 367) observed:

"A contract may deal with mining or a mining tenement, but proceedings arising out of the contract may raise only questions of personal obligations under a contract rather than questions related to mining or a mining tenement. That is to say, the proceedings may raise questions which are quite outside the area within which the Act purports to operate and which, for that reason, exhibit no relevant relationship with mining or a mining tenement."

55 Dawson J agreed also with the joint judgment of Toohey and Gaudron JJ. In the joint judgment, their Honours (at 372) observed in respect of the Queensland Act that:

"By the Act the legislature has vested different jurisdictions in two of Her Majesty's courts; the question in the present case is - which court? And while there might ordinarily be a predisposition in favour of a superior court, s 80 does give to a Wardens Court, in respect of matters within its jurisdiction, exclusive jurisdiction and a wide range of powers, 'legal and equitable.'"

Their Honours (at 373) had regard to the breadth of the particular expressions employed in the Queensland legislation and stated:

"The word 'arising' is commonly found in statutes; a glance at any legal dictionary will show that to be the case. Naturally, the word takes its meaning from the context in which it appears. Its significance in s 80(1), we think, is to point up the need for an issue to presently exist in relation to mining or a mining tenement in order to attract the jurisdiction of a Wardens Court.

....

In accordance with the same reasoning, jurisdiction is not conferred on a Wardens Court by the opening words of s 80(1) unless there is a matter which in truth has arisen in relation to mining or a mining tenement and which does not present some merely remote or hypothetical question for the Court to determine. Although 'in relation to' is an expression of broad import, in context with 'arising' it presupposes a direct connexion between a presently existing action, suit or proceeding and mining or a mining tenement, not merely an incidental connexion." (emphasis supplied)

56 Toohey and Gaudron JJ then noted that the relief sought in the counterclaim was in part declaratory, to the effect that purported rescissions of the contract were of no effect. The respondent also had sought an order aimed at constituting the joint-venture committee in accordance with the agreement. Their Honours considered the counterclaim was distinguishable from a claim for specific performance of a contract for the sale of a mining tenement or for an order for sale of such a tenement. Neither mining nor a mining tenement was directly the subject of the counterclaim, by contrast. An order that the parties "designate their representatives to the joint venture committee" was considered by them to be a "prerequisite to mining operations on the lease. Such an order would have only an incidental rather than a direct connexion with mining or a mining tenement" (emphasis supplied).

57 It follows, in my view, that whether one approaches expressions such as "in relation to" or "in respect of" as having the effect that a connection must be "not so exiguous as to be insignificant" (Brennan CJ) or not "to be remote and merely incidental" (Brennan CJ and McHugh J) or "not merely an incidental connexion" (Toohey and Gaudron JJ), there must exist a sufficient connection between a proceeding in question and the touchstones of jurisdiction set out in s 132(1) of the Mining Act.

58 In this regard, it should also be observed, as Brennan J observed in O'Grady in the passage cited above, that the relationship must be between the proceeding or matter and the particular activity or touchstone of jurisdiction; not merely between the proceeding and some other activity or touchstone of jurisdiction. His Honour in that respect referred to R v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185 at pp 197 - 198. In that decision, Gibbs CJ observed that:

"The words 'in relation to' import the existence of a connexion or association between the two proceedings, or in other words that the proceedings in question must bear an appropriate relationship to completed proceedings of the requisite kind."

Gibbs CJ was there referring to the definition of "matrimonial cause" that appeared in the Family Law Act 1975 (Cth) to the effect that the Family Court had jurisdiction in a matrimonial cause defined to include a proceeding between the parties to a marriage being one "in relation to" concurrent, pending or completed proceedings between those parties.

"It is not enough that what is done in one of the proceedings would indirectly affect the practical outcome of the other proceedings. This may be illustrated by a number of examples. Suppose that proceedings are brought in the Family Court by a wife against her husband claiming an alteration of property interests under s 79 of the Act. Suppose also there is pending in a Supreme Court a claim by a stranger to the marriage against the husband for damages, or a claim by the Commissioner of Taxation for tax, in an amount so large that if it succeeded it would denude the husband of all his assets, leaving no property which could be made the subject of an order in favour of the wife. The proceedings against the husband may have a devastating effect on the proceedings in the Family Court but that does not mean that there is a relationship between the two proceedings themselves or that the Family Court has jurisdiction - which, of course, would mean exclusive jurisdiction - to entertain the claim for damages or the claim for the recovery of tax ... There would, in such a case, be no sufficient relationship between the proceedings ... although the practical outcome of one proceeding might affect the practical outcome of the other, the claims in the two proceedings are quite independent."

60 Returning to the question whether the proceeding for a declaration of the type made here is within the jurisdiction of the Warden's Court, there is no doubt that the material words used in the Act to grant jurisdiction are different from those considered in O'Grady. However, in my view, they are not so different as to make the analysis in the judgments in O'Grady unhelpful in this case.

61 The primary issue concerning jurisdiction in this appeal turns on a question of statutory construction. I accept that special care must be taken not to transpose the construction of a set of apparently similar words in a case such as O'Grady concerning the Queensland Mining Act to a case concerning the Mining Act in Western Australia. Care must also be taken not to assume that Parliament cannot have intended to grant the Warden's Court the power to grant equitable or prerogative relief in the circumstances assumed by the learned Warden. Nevertheless, in my view, an action for a declaration concerning the validity of acceptance by the Department of the late-filed Form 5 expenditure reports in respect of particular mining tenements and their recording on the Register by the Department is not an action "arising in respect of rights claimed in relation to a mining tenement", or one "relating to" a forfeiture application, because it does not have a sufficient, direct connection to the mining tenement or the forfeiture application.

62 More particularly, in my view, the proceeding for a declaration cannot be characterised as one in respect of a right claimed in a mining tenement or purported mining tenement. Nor can it be characterised as a proceeding in respect of a right claimed under a mining tenement or purported mining tenement. In neither case is the declaration so directly related to the mining lease as to be characterisable as a proceeding in respect of a right in or under a mining lease.

63 As to the question whether the proceeding for declaration here can be characterised as a proceeding in respect of a right claimed in relation to a mining tenement or purported mining tenement, I do not think that it can be. It is simply a proceeding concerning: (1) the validity of the acceptance by the Department of Form 5 expenditure reports after the date prescribed by the Regulations; and (2) the validity of the entry of or the recording by the Department of those same Form 5 reports on the Register maintained by the Department under the Regulations.

64 While it may be said that the Form 5 expenditure reports and their recording on the Register relate to mining tenements, that does not, in my view, mean that the declaration sought is in respect of a right claimed in relation to the mining tenements. The proceeding for declaration may, in an incidental sense, "relate to" a mining tenement, but it is insufficiently connected with it to be characterised as one that arises in respect of a right claimed in relation to a mining tenement.

65 A further question arises whether the proceeding for declaration here can be characterised as one relating to any matter in respect of which jurisdiction is under any provision of this Act conferred upon either the warden's court or the warden. A "matter" which, it may be argued, falls within this description, is the hearing of a forfeiture application by the Warden in open court pursuant to s 98 of the Act. That would constitute a matter in respect of which jurisdiction is under a provision of the Act conferred upon the "Warden" (in this case, conferred on the Warden "in open court"). The question is whether the proceeding for a declaration as to the validity of the Department's acts of accepting the Form 5 reports and recording by them in the Register is one "relating to" the forfeiture applications to be determined by the Warden in open court.

66 On one view it might be said that a proceeding concerning the validity of the Form 5 reports and the content of the Register is one "relating to" a forfeiture application. The success of a forfeiture application under s 98 depends upon a plaintiff proving that the tenement holder has not complied with the expenditure conditions to which the tenement is subject. A Form 5 expenditure report prima facie bears upon the question whether there has been expenditure in accordance with the expenditure condition of the tenement, as recognised in Italo Nominees. If the Department is not able to accept a late-filed Form 5, the Register will, on its face, suggest there has not been compliance with the expenditure condition.

67 This view would appear to be the one adopted by the learned Warden in this case. Having determined that the Warden's Court has the power to grant a declaration (which I do not doubt is the case in an appropriate action), the learned Warden considered the right of the plaintiff to apply for the declaration sought. He considered (at par 55 of his reasons) that there was a "controversy" which the respondent (plaintiff) seeks to resolve by means of the declaration sought. He added that:

"The controversy ... is a legal controversy and it is not an abstract or theoretical one. The plaintiff does have a real interest in raising the question and obtaining the declarations and consequential orders, which he seeks. His interest is directly connected to the proper administration of the Act and Regulations and is directly connected to administrative proceedings which he has commenced for forfeiture of the three subject tenements."

68 In my view, the latter finding is the critical one in relation to this appeal. With respect, I do not agree that the declaration sought is "directly connected" to the forfeiture application.

69 On a competing view - and one which I prefer - the proceeding for declaration here is not one "relating to" the forfeiture application, but merely one incidentally connected with it. Although the outcome of the proceeding may have some effect on the performance of the administrative function of the Warden in open court in determining the forfeiture application, it is not sufficiently "related to" it: R v Ross-Jones; Ex parte Green per Gibbs CJ (supra). The proceeding is properly to be characterised as one concerning the validity of the acts of the Department in accepting the Form 5 expenditure reports and recording them on the Register. It is a proceeding independent of the forfeiture applications, although one which may, in the words of Gibbs CJ, "indirectly affect the practical outcome of the other proceedings".

70 For these reasons, I am not satisfied that the Warden's Court had jurisdiction to entertain the particular proceeding for declaration the subject of the respondent's further plaint.

71 Not only did the learned Warden in the Warden's Court grant a declaration concerning the entitlement of the Department to accept the Form 5 expenditure reports after the prescribed date, he also made what appears to be a consequential order, dependent on the declaration, that the Register be amended to show "Nil" expenditure. Once the jurisdiction to make the declaration is found wanting, the power to make this order also falls away.

72 The learned Warden seems to have taken the view that, once he had made the declaration in the terms he did, he had the power to grant "consequential relief" requiring the amendment of the Register. The Warden (at par 52 of his reasons) seems to have assumed that the Supreme Court has the power, whenever it makes a declaration, to make "consequential" orders that seem appropriate. The learned Warden stated:

"I am not aware of anything in the Act which would have the consequence of preventing a Warden from making a consequential order following a declaratory judgment. The Supreme Court has such a power; it is not an inherent power. In many instances there would be little purpose in obtaining a declaratory judgment in the Supreme Court where the Court did not have the power to make a consequential order which would enable the achievement of the objective of the plaintiff in commencing the action for a declaratory judgment in the first place. In my opinion, the same may be said of a declaratory judgment made by the Warden sitting in the Warden's Court."

Earlier, the learned Warden had made reference to s 25 of the Supreme Court Act 1935 and O 18 r 16 of the Rules of the Supreme Court 1971 to the effect that no action shall be open to objection on the ground that a merely declaratory judgment is sought thereby and it shall be lawful for the Court to make binding declarations of right without granting consequential relief.

73 It would appear that the learned Warden understood the references to "consequential relief" in the Supreme Court Act and Rules as constituting the source of the power to grant relief that seemed appropriate to achieve the objective of a party in commencing an action for a declaratory order. I do not think that this is right.

74 In Commercial Developments Pty Ltd v Mercantile Insurance Ltd (supra) at 218 - 9, Malcolm CJ discussed the origin of O 18 r 16 and its effect. In short, before 1883, there was no jurisdiction at common law to give a judgment declaratory of existing or future rights, although the common law courts had certain powers of granting injunctions and mandatory orders. In the Court of Chancery, binding declarations of right were made, but only if some right to relief which the court could grant, whether claimed or not, was shown and established. Under the Judicature Acts and before 1883, the common law courts followed the rule of the Court of Chancery which prevailed in the former. Thus, as the Chief Justice explained:

" ... it was in a rather special sense that a declaration of right was regarded as 'ancillary' relief at equity. The effect of (the English) O 25, r 3 was to empower the court to make binding declarations of right 'whether or not any consequential relief was claimed'."

75 It follows that an action or other proceeding claiming relief in the nature of equitable relief for a declaration is a claim for principal relief and is not itself ancillary relief. Reference in the Supreme Court Act s 25 and in O 18 r 16 to "consequential relief" is merely a reference to such other relief that might be sought as of right. It is not the source of a power of the Supreme Court to award such consequential relief as it may think appropriate in the circumstances. As to the background and effect of provisions similar in terms to O 18 r 16 of the Rules of the Supreme Court, see also Commonwealth v Sterling Nicholas Duty Free Pty Ltd [1972] HCA 19; (1972) 126 CLR 297 at 305 per Barwick CJ; Meagher Gummow and Lehane's Equity, Doctrines and Remedies, 4th ed [19-055] - [19-070]. In short, the consequential relief to which the rule refers is that which equity or the common law otherwise recognises.

76 Consequently, a declaration constitutes primary relief and does not necessarily have to be accompanied by any other form of relief to be effectual. If other relief is sought by a party complementary to that of declaration, it needs to be available as right. It does not automatically follow, as the learned Warden appears to have assumed, that any order that appears to give substance to the spirit of a declaration may be made pursuant to s 25 of the Supreme Court Act or O 18 r 16 of the Rules of the Supreme Court.

77 Whether or not the Supreme Court, and thus the Warden's Court, is entitled to grant a mandatory injunction for relief such as a writ of mandamus to require amendment of the record was not considered by the learned Warden and was not argued before me. Nor was the possibility that the Warden's Court might have jurisdiction to issue a writ of certiorari to quash the "decision" that is reflected in the record of the Form 5 expenditure reports entered on the Register.

78 For these reasons, I do not consider that the learned Warden had jurisdiction to entertain the plaint for the declaratory order and other relief sought.

The power of the Department to receive the Form 5 reports and record them on the Register

79 Although it is not strictly necessary for me to rule on the further ground of appeal that the learned Warden erred in finding that the Department acted contrary to law in accepting the late filing of the Form 5 expenditure reports and recording them on the Register for the respective tenements, it is appropriate that I should do so, as I think that, even if the Warden's Court had the jurisdiction to entertain such a plaint, it erred in the result.

80 In essence, the issue is whether any provision of the Mining Act or the Regulations proscribes the Department accepting and noting on the Register Form 5 expenditure reports received by it after the relevant annual anniversary date of a tenement. In my view, there is nothing in the Act or the Regulations that has this effect.

81 Section 82(1)(c) of the Act requires a lessee as one of the covenants or conditions of a mining lease to comply with the prescribed expenditure conditions unless exemption is granted. Additionally, by s 82(1)(e) the lessee holds the tenement on the condition that he or she will lodge with the Department such periodical reports and returns as may be prescribed. These are covenants and conditions, perhaps properly described as statutory covenants and conditions, of the mining lease. In my view, they do not constitute public duties imposed upon the lessee to act in the manner covenanted. They are in essence matters of contract between the State, as lessor, and the lessee. The sanction for non-compliance with the covenants and conditions, as noted above, include the power of the Minister to cause the forfeiture of the lease for non-compliance, as well as, in respect of non-compliance with the expenditure conditions, the right of any person to apply to the Warden in open court for a forfeiture recommendation, which may in turn be acted upon by the Minister. In this statutory context, failure to comply with the Regulations simply constitutes a failure to satisfy one of the covenants and conditions of the mining lease that may lead to forfeiture.

82 Understood in this way, neither the Act nor the Regulations in the provisions dealing with the filing of Form 5 expenditure reports or the recording of information on the Register maintained by the Department proscribes the late filing of Form 5 reports or the noting of such reports on the Register if received after the annual anniversary date of the tenement. While the failure of a tenement holder to file a Form 5 expenditure report may, for reasons set out in Italo Nominees, be of significance to the determination of a forfeiture application by the Warden in open court, that evidentiary consideration cannot dictate the answer to the questions whether a tenement holder is proscribed from lodging an expenditure report in purported compliance with a covenant or condition of the lease after the required submission date, or whether, under the Regulations, the Department is not permitted to enter on the Register maintained thereunder a Form 5 expenditure report filed after the date prescribed by the Regulations.

83 In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 a provision of the Broadcasting Services Act 1992 (Cth) (s 158(j)) provided that a primary function of the Authority (ABA) was to develop programme standards relating to broadcasting in Australia. Another provision (s 122(1)(a)) required the ABA to determine standards to be observed by commercial television broadcasting licensees. Yet another provision (s 122(2)(b)) provided that such standards were to relate to "the Australian content of programmes". The Act did not define that phrase. Section 122(4) provided that the standards must not be inconsistent with the Act or the Regulations. Section 160(d) required the ABA to perform its functions in a matter consistent with Australia's obligations under an agreement between Australia and a foreign country.

84 The ABA determined an Australian content standard with effect from 1 January 1996, by cl 9 of which Australian programmes had to comprise at least 50 per cent of all broadcasts between 6 am and midnight until the end of 1997 and 55 per cent thereafter. A definition of "Australian programme" included one that was produced under the creative control of Australians who ensure an Australian perspective. Australia and New Zealand had agreed that each member State to their agreement should grant to persons of the other "services provided by them access rights in its market no less favourable than those allowed to its own persons and services provided by them". Another clause provided that each member State should accord to persons of the other "services provided by them treatment no less favourable than that accorded in like circumstances to its persons and services provided by them". Six New Zealand companies which had the object of encouraging the growth of the New Zealand film and television industry contended that the standard was invalid because it was inconsistent with these clauses of the agreement and, hence, with s 160D of the Act which required the ABA to perform its functions in a manner consistent with Australia's obligation under an agreement with another country.

85 In the event, a majority of the High Court held that the ABA was obliged to determine Australian content standards only to the extent that they were consistent with Australia's obligations under international agreements. Therefore, the standard was inconsistent with the agreement between Australia and New Zealand and s 160(d) was not satisfied. Accordingly, s 122(4) prohibited the making of the standard.

86 In the course of determining this, the Court held that an act done in breach of a condition regulating the exercise of a statutory power was not necessarily invalid. Whether it was depended on whether it was a purpose of the legislation to invalidate any act done in breach of the condition. It was not a purpose of the Act that a breach of s 160(d) should invalidate any act done in breach of that section and, hence, acts done in breach of s 160(d) were not invalid. In this regard, the joint judgment of McHugh, Gummow, Kirby and Hayne JJ (at 388 - 389) states:

"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied [footnote omitted]; there is not even a ranking of relevant factors or categories to give guidance on the issue.

Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority [footnote omitted]. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition [footnote omitted]. Cases falling within the second category are traditionally classified as directory rather than mandatory.

....

In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood [footnote omitted] in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' [footnote omitted] and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid."

87 The appeal here does not involve a case such as that argued in Project Blue Sky, where the act of the public authority was arguably invalid because it offended a positive statutory standard imposed on the authority. Here, there is no positive obligation imposed by the Mining Act or by the Regulations on the Department not to Register Form 5 expenditure reports filed after the due date. The Department registers such reports because reg 106(1) of the Regulations provides that the Department must keep a Register in which is recorded specified matters, including receipt of Form 5 expenditure reports. Nothing in the Act or Regulations provides that a Form 5 expenditure report is one meeting that form set out in the Regulations and which is filed by the prescribed date.

88 There is nothing in the Mining Act or the Regulations that suggests that a mining lessee cannot lawfully lodge a Form 5 expenditure report after the prescribed date. Where the tenement holder files a Form 5 late, non-compliance with the covenant or condition upon which the tenement is held under the Act is highlighted, as explained above. It may also suggest the expenditure condition of the mining lease has not been met, but even this does not necessarily follow. In any event, there seems to me to be no reason why the Department cannot receive a report filed after the due date covenanted for, and record it on the Register it is obliged to maintain under the Regulations.

89 In particular, there is nothing in the Act that expressly, or on its proper interpretation, requires the formation of the view that the predominant purpose served by requirement of the Act and the Regulations in respect of the filing and registration of Form 5 expenditure reports is the facilitation of forfeiture applications under s 98 and the satisfaction of the evidentiary burden imposed on a person who applies for forfeiture thereunder.

90 The failure of a tenement holder to file a Form 5 expenditure report is not, of itself, proof that there has been no expenditure. The fact that a Form 5 expenditure report has not been registered may assist a plaintiff in a forfeiture application under s 98 because of the prima facie non-compliance it suggests. However, that evidentiary rule is an insufficient basis upon which to conclude that a Form 5 expenditure report cannot, as a matter of law, be received by the Department after the date upon which it should have been filed, or that the Department is precluded, as a matter of law, from entering the late-filed Form 5 expenditure report on the Register in accordance with the obligation that the Regulations impose upon the Department. That the "policy" said to be behind the terms of s 98 of the Act may be frustrated to some extent by this view is not a sufficient basis to support the contrary view.

91 Accordingly, I find that the Warden's Court did not have jurisdiction to grant the relief that it did on the plaint for declaration and other relief. Further, and in any event, even if the Warden's Court did have the jurisdiction to entertain the plaint, the learned Warden erred in finding that the Department acted contrary to law in accepting the Form 5 expenditure reports filed after 18 September 2001 and in recording them on the Register for the respective tenements.

Court of Western Australia Act 1969

Global Doctor Ltd v Hodgkinson & Anor [2003] WASCA 119

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (139 paragraphs)

Global Doctor Ltd v Hodgkinson & Anor [2003] WASCA 119 (12 June 2003)

The primary issue on this appeal: the question of jurisdiction

The purpose of the plaint for a declaration

The power of the Department to receive the Form 5 reports and record them on the Register

Parties

Legislation Cited (5)

Cases Cited (10)