Hunter Resources Ltd v Melville

Before turning to the question of law we should refer briefly to the facts and to the relevant statutory provisions. The first named respondent Brian Anthony Melville ("the respondent Melville") made application for a prospecting licence under s 41 of the Act covering 52.5 hectares of land at Mertondale. Section 40(1) provides "Subject to this Act, the warden may, on the application of any person grant to that person a licence to be known as a prospecting licence". Section 41(1) provides that an application shall be in the prescribed form and shall be accompanied by a map on which are clearly delineated the boundaries of the area of the land in respect of which the licence is sought together with a written description of the area. The application, which was accompanied by a map, described the land as follows:

Datum peg situated 1550 metres at 279 degrees from most northerly corner of late surveyed M.C. 15C; thence

The appellant's amended objection claimed that the respondent failed to mark out the area applied for in accordance with the Act and regulations in that inter alia he "failed to space pegs within the allowable distances".

Section 105 of the Act, which applies to prospecting licences in common with other mining tenements, provides:

Before making an application for a mining tenement other than an exploration licence, the applicant shall mark out in the prescribed manner and in the prescribed shape the land in respect of which the mining tenement is sought.

Regulation 59, which applies to the marking out of land whose boundaries have not been previously surveyed, provides:

A mining tenement shall, unless where otherwise expressly provided, be marked out in the following manner: -

(b) by fixing firmly in the ground at intervals not exceeding 300 metres along each of the boundary lines of the mining tenement, substantial pegs or cairns of stones projecting not less than 1 metre above the surface of the ground and set between two trenches not less than 1 metre in length and 15 centimetres deep, cut in the direction of the boundary line on which it is so fixed

Regulation 92 provides that the shape of a mining tenement other than a miscellaneous licence or one marked out pursuant to reg 61 shall be a rectangle, but if the boundaries of mining tenements, other boundaries or natural features make it necessary or desirable to vary this shape, each side of the tenement shall be a straight line and where possible at right angles to an adjacent side or parallel to an opposite side.

The respondent Melville's application for a prospecting licence was heard by the warden, Mr Reynolds S.M., pursuant to s 42(1) of the Act. He found in favour of the appellant, holding that the respondent had not marked out the land in accordance with reg 59, the respondent conceding that there were intervals in excess of 300 metres between pegs along two of the boundary lines. There were three such intervals. One was on the northern boundary, being 302 metres; others were on the southern boundary, being 301 metres and 303 metres. In all other respects there was compliance with the marking out requirements, so that the non-compliance was minor and would not have misled anyone inspecting the land with a view to identifying the area of land claimed by the respondent Melville. The warden considered that the language of the Act and the regulations on their true construction required precise compliance with the marking out provisions and did not admit of any doctrine of substantial compliance. Accordingly, he upheld the objection and refused the application.

The appellant submits that the warden's decision was consistent with his taking the view that non-compliance with reg 59 was a factor which, in the exercise of his discretion, should lead him to refuse the application. The warden's reasons for his decision are not susceptible of this interpretation. He considered that precise compliance with reg 59 was mandatory and that he had no discretion to dispense with non-compliance.

The respondent Melville obtained an order nisi for certiorari. The order nisi was subsequently made absolute by the Full Court of the Supreme Court on the ground that the warden misconstrued the relevant statutory provisions. It seems to have been assumed that, once such a misconstruction was established, a case for relief by way of certiorari for error on the face of the record was made out. The availability of this form of relief was not disputed in this Court.

The appellant's principal submission is that s 105 is mandatory. Not only does it say that "the applicant shall mark out" but also that he shall do so "in the prescribed manner" and "in the prescribed shape". And reg 59, which prescribes the mode of marking out, requires that pegs be placed at intervals "not exceeding 300 metres". On their face these provisions permit no latitude and no dispensing power is conferred on the warden. The appellant then points to s 105A(1) which, in the case of competing or conflicting applications, gives priority to "the applicant who first complies with the initial requirement in relation to his application". Sub-section (2) defines the expression "complies with the initial requirement" as meaning in the case of an application for a prospecting licence "marks out the land or part concerned in the prescribed manner".

These provisions, so the argument runs, give expression to a policy which denies to the warden any discretionary power to decide whether a non-compliance with the marking out requirements should be excused. In this regard the appellant points to s 75(4) which authorizes the Minister to grant or refuse a mining lease as he thinks fit, notwithstanding that the applicant may or may not have in all respects complied with the provisions of the Act. There is no comparable provision authorizing the grant of a prospecting licence or for that matter any mining tenement other than a mining lease despite non-compliance with the provisions of the Act.

An applicant may appeal to the Minister against the warden's refusal of his application for a prospecting licence: see s 56(2) of the Act. There is no appeal to the Minister against the warden's grant of a licence. It is suggested that although the warden is bound to refuse an application once he is satisfied that there has been non-compliance, the Minister on appeal has a discretion to grant the licence notwithstanding the warden's finding on that matter, even if the Minister considers the finding to be correct.

According to the appellant, the policy to which we have just referred has the advantage of ensuring certainty and stability in the recognition of title to mining tenements. Indeed, it is suggested that the certainty which would flow from a regime of strict compliance with the marking out requirements was one of the purposes which the Act sought to achieve. In support of this submission the appellant relies on s 19 of the Interpretation Act 1984 WA and certain extrinsic materials. Section 19(1) enables consideration to be given to extrinsic material to determine the meaning of a provision of a written law where the provision is ambiguous or obscure. Section 19(2) enables such consideration to be given to a report of a committee of inquiry that was laid before either House of Parliament before the time when the provision was enacted (s 19(2)(c)) and a Minister's speech on the second reading of the Bill containing the provision (s 19(2)(f)).

The extrinsic material which the Court is invited to examine is the Minister's second reading speech in the Legislative Council on the occasion when an amendment was made to the Act in 1985 and the report dated 18 January 1984 of the Mining Act Inquiry Committee. The Minister stated that the amendment generally followed the recommendations of the Committee with some modifications. The report recommended that a proposal made to the Committee to confer power to dispense with strict compliance with the formalities relating to an application for a mining tenement, except in the case of an application for a mining lease where such a power existed, should be rejected. The Committee's view was that the requirements for compliance were clearly stated, that the introduction of a discretionary power to dispense with formalities would bring about uncertainty and conflicting decisions and was opposed by the mining industry.

It is evident that the extrinsic materials are not materials which the Court should consider under s 19 in arriving at an interpretation of the relevant statutory provisions which were enacted before 1984. The extrinsic materials do not relate to the legislative history or antecedents of any of the provisions which fall for consideration in the present case. The materials relate to other provisions and provide a possible explanation for a legislative disinclination to amend the provisions with which we are presently concerned. As such the Minister's second reading speech and the report amount to nothing more than an expression of opinion of what the relevant legislation means. This is not a matter to which we should have regard.

It is a matter then of construing the relevant provisions of the Act in their context which of course includes the scope and purpose of the statute. We begin with the command in s 105 that, before applying for a mining tenement, an applicant shall mark out the land applied for in the prescribed manner. The statute thereby imposes an obligation on an intending applicant to comply with the requirements of the regulations as to marking out. Neither s 105 nor any other provision in the Act gives any indication that anything less than exact compliance with these requirements is a sufficient satisfaction of the statutory obligation. And, when we look beyond the statute to reg 59, we find that it prescribes that pegs shall be placed at a distance "not exceeding 300 metres", the distance so prescribed being the maximum permitted distance.

However, we need to keep in mind that the question at issue is not whether the respondent complied in all respects with reg 59. The question is whether it was open to the warden to grant a prospecting licence, notwithstanding non-compliance with that regulation.

In arguing for an affirmative answer to this question the respondent Melville relies on a number of matters. First, neither s 40(1) nor any other provision of the Act conditions the warden's power to grant a licence on his being satisfied that there has been a compliance with s 105. Indeed, the Act does not specifically require the warden to satisfy himself that an applicant has marked out in the prescribed manner and in the prescribed shape. True it is that s 42(1) provides that the warden shall hear applications for prospecting licences in open court and that any person is entitled to object to the granting of the application. This provision suggests, subject to a qualification to be mentioned later, that there is to be a hearing of the application whether there is an objection or not. But the Act does not require an applicant to furnish with his application details of his marking out or to establish that marking out has taken place. The warden has power to require information in addition to that which accompanies the application and to give such evidence as he may require s 41(3). However, the existence of this discretionary power to call for evidence - on the matter of marking out - is a fragile foundation for an implication that in all cases the warden must satisfy himself that the applicant has marked out in the manner and shape prescribed, let alone an implication that such satisfaction is a condition precedent to the grant of a licence.

Section 40(4), which was introduced in 1985, is at odds with such an implication. The sub-section provides that in certain circumstances, the approval of the warden to the grant of a prospecting licence may be deemed to have been given, without any hearing by him. The circumstances in which such provision may be deemed to have been given are (a) where the applicant satisfies the mining registrar that the land is unoccupied Crown land, or is Crown land used for grazing purposes only under certain classes of lease but is otherwise unoccupied; (b) no notice of objection has been lodged within the prescribed time; and (c) the applicant satisfies the mining registrar that all persons required to be served with a notice of the application have been so served and that a period of not less than 30 days has elapsed thereafter. Although the sub-section operates as a qualification or exception to the general provisions of s 40, it provides confirmation of the view that neither marking out in precise compliance with s 105 and reg 59, nor a finding to that effect by the warden, is a condition precedent to the grant of a licence.

Neither the Act nor the regulations define or delimit the grounds on which objections may be lodged. It has been assumed, correctly in our view, that non-compliance with the marking out requirements is a permissible ground of objection. In the light of s 42(1) it is certainly to be implied that the warden will inquire into the matter of marking out if an objection is lodged claiming that there has been no marking out or that the marking out does not comply with the Act and the requirements. But it does not follow that there is also to be implied a condition on the warden's power to grant a licence that he is satisfied that the applicant has marked out in the manner and shape prescribed. True it is that s 40(1), which authorises the warden to grant prospecting licences, commences with the words "Subject to this Act ". It is perhaps possible that the draftsman intended by these words to condition the power to grant a licence on compliance by the applicant with the requirements as to marking out. However, if the power to grant were so conditioned, it would mean, subject to the operation of s 116(2) to which we will refer shortly, that the licence would be vulnerable to subsequent attack with consequential uncertainty as to the validity of titles to mining tenements. And the words in question are scarcely apt to require the warden to satisfy himself that marking out in the prescribed manner and shape has taken place and to condition the power to grant a licence on his being so satisfied.

Except in the case of fraud, a mining tenement granted or renewed under this Act shall not be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the grant or renewal of that tenement The reference to "proceedings previous to the grant or renewal of that tenement" is wide enough to comprehend an irregularity in the proceedings before the warden and in the marking out of the land the subject of the grant or renewal. The sub-section is designed to protect the grant or renewal of a licence as a root of title and it gives emphasis to the statutory policy that the grant or renewal is a root of title.

It is also of some significance that s 57(3), which deals with exploration licences, expressly provides that the warden shall not recommend the grant of such a licence unless he is satisfied that the applicant is able to effectively explore the land in respect of which the application is made. In this respect the Act expressly conditions the power of the warden to make a recommendation for the grant of a licence.

The factors to which we have pointed indicate that the warden's power to grant a prospecting licence is not conditioned in the manner suggested by the appellant. In combination they are more cogent than the indications on which the appellant relies. Section 75(4), to which we have already referred, is to be explained on the footing that it was thought necessary to make specific provision protecting the validity of mining leases because they are a particularly valuable class of tenement. For this reason we are disinclined to use s 75(4) as a basis for making any general implication.

Regulation 119, like s 40(4), proceeds on the footing that a licence may be granted notwithstanding a failure to comply in all respects with the obligation imposed by s 105 of the Act. The regulation provides that where a surveyor finds that any mining tenement or application therefor is not marked out in the prescribed shape, he may, where practicable, adjust the boundaries. Accordingly, the regulation contemplates that a marking out which does not comply with the obligation imposed by s 105, may none the less ground the grant of a prospecting licence.

Of course it is not permissible to interpret the statute by reference to the regulations. All that we can gain from reg 119 is that it proceeds in conformity with the interpretation which we have placed on the Act. We say this, despite the possibility that a distinction might be drawn between the consequences of non-compliance with the requirements as to the manner of marking out and those as to shape. There is perhaps more reason for allowing latitude and flexibility in relation to the latter than the former. But the obligation imposed by s 105 is to comply with what is prescribed by the regulations on both counts. And in the end the critical question remains the same. Is compliance or a finding of compliance a condition precedent to the grant of a licence?

There is force in the point made by Rowland J. in the Full Court of the Supreme Court that the Act and the regulations should be interpreted in the light of an appreciation, born of experience, that for various reasons the marking out of land not infrequently involves non-compliance in some respects with the prescribed requirements. To make precise compliance a condition precedent to the grant of a licence would give an advantage over other persons to large mining companies which have the equipment, the resources and the staff to ensure such compliance. And there seems to be no compelling reason for supposing that the legislature would wish to exclude power in the warden, as distinct from the Minister, to grant a licence to an applicant who has failed to comply in a trivial respect only with the prescribed requirements. Indeed, s 116(2) may be read as confirming the power of the warden to make a grant in such circumstances and as preserving his grant from subsequent challenge.

Section 105A does not support the appellant's case. It may be read as providing that, in the case of competing or conflicting applications, the applicant who has marked out in precise conformity with the Act and the regulations shall have a prior claim. This is not to deny that the warden has power to grant a licence to an applicant who has not complied in all respects when there is no competing or conflicting claim.

Much of the argument before us was directed to the question whether that part of reg 59 which called for the placing of posts at distances "not exceeding 300 metres" was directory or mandatory. The outcome of the appeal turns on the interpretation of the statute rather than on the regulation. In the present case we have preferred to resolve the problem by reference to the particular provisions without examining authorities which deal with other provisions.

For the foregoing reasons we would dismiss the appeal.

I have come to the same conclusion as Dawson J. Save for his Honour's reliance upon the extrinsic materials to which he refers, I agree generally with his Honour's reasons.

The problem is one of the proper construction of the Mining Act 1978 WA (the Act), the critical question being: is the warden obliged to refuse an application for a prospecting licence when it is shown that the applicant has failed to comply with the marking out requirements? In my view, he is. Section 105 of the Act is mandatory in its terms. The applicant shall mark out the land in the prescribed manner and he shall do it before he applies for the licence. The warden's power to grant a licence is expressed to be "(s)ubject to this Act ": s 40(1). Section 105A (inserted in 1981) is of particular significance. That section, prior to its amendment in a respect which is not material to the present case by amending Act No.1 of 1986, read as follows:

105A. (1) If 2 or more applications are made for a mining tenement (other than a miscellaneous licence) in respect of the same land or any part thereof, the applicant who first complies with the initial requirement in relation to his application has, subject to this Act, the right in priority over every other applicant to have granted to him in respect of that land or part the mining tenement to which his application relates.

When this section was introduced into the Act in 1981, the section repeated in relation to prospecting licences a provision which was already expressed in s 43 of the Act as originally enacted. It emphasized the legislative intention that marking out in the prescribed manner was to be determinative of priority as between competing applications. Section 43 was repealed by amending Act No.122 of 1982. It seems to me that it is a necessary consequence of these provisions that an applicant for a prospecting licence cannot, in the case of a contested hearing of the application, be granted a licence if he has not first marked out the land in accordance with the Mining Regulations 1981 WA. Those regulations require that pegs or cairns be fixed along the boundary lines of the land at intervals "not exceeding 300 metres" (reg 59(b)). One cannot speak of "substantial compliance" with a requirement expressed in those terms. The marking out is either in accordance with the regulations or it is not. The requirement is not one with which it is difficult to comply. The absence of a prescribed minimum distance between the marks allows for their placement at such intervals, not exceeding 300 metres, as may be most convenient having regard to the nature of the terrain.

It is of no moment that in the absence of objection there may be no occasion for the warden to satisfy himself as to compliance. The requirement that the land be marked out in accordance with the regulations applies generally to every application for a prospecting licence but the Act does not impose a duty of inquiry upon the warden or, in the case of an application coming under s 40(4), the mining registrar. In the absence of any objection as to compliance, there is no question of priority under s 105A of the Act to be determined and the issue does not arise. In effect the Act draws a distinction between contested and uncontested applications. This may be explained as an aid to certainty and by the fact that the legislature is concerned to minimize the area of disputation in the warden's court between competitors for potentially valuable mining interests. But, however it be explained, the fact remains it is the necessary consequence of the statutory provisions.

Once a licence is granted, s 116(2) has the effect of protecting the prospecting licence from attack on the basis of, inter alia, non-compliance with the marking out requirements. Whether the power of the Minister conferred by s 56(3) in dealing with an appeal from the decision of the warden refusing an application for want of compliance extends to a power to grant the application notwithstanding non-compliance is a question that does not require to be answered in order to dispose of this appeal. An affirmative answer to that question would not affect my conclusion as to the more limited powers of the warden.

Although I have paid regard to the various other statutory provisions referred to by the first respondent, I do not find them of assistance in answering the critical question.

Brian Anthony Melville, the first respondent, was an applicant under the Mining Act 1978 WA (the Act) for a prospecting licence. That, under the Act, is a form of mining tenement and it is provided in s 105(1) that:

Before making an application for a mining tenement other than an exploration licence, the applicant shall mark out in the prescribed manner and in the prescribed shape the land in respect of which the mining tenement is sought. Regulations made under the Act, the Mining Regulations 1981 WA, prescribe the manner of marking out land for the purpose of an application for a mining tenement. Regulation 59 provides: A mining tenement shall, unless where otherwise expressly provided, be marked out in the following manner: -

(a) by fixing firmly in the ground at each corner or angle of the mining tenement, or as near as practicable thereto, a substantial post or cairn of stones projecting not less than 1 metre above the surface of the ground and set in the angle of two trenches commencing between 1.5 and 2 metres from the post or cairn, not less than 1 metre in length and 15 centimetres deep, cut in the direction of the boundary lines;

(b) by fixing firmly in the ground at intervals not exceeding 300 metres along each of the boundary lines of the mining tenement, substantial pegs or cairns of stones projecting not less than 1 metre above the surface of the ground and set between two trenches not less than 1 metre in length and 15 centimetres deep, cut in the direction of the boundary line on which it is so fixed, but such pegs and trenches are not required in respect to any boundary line or portion thereof which:

(i) coincides with a previously surveyed boundary, a fence, railway line, road or other similar well defined feature if such boundary, or feature is referred to in the description of the tenement recorded on the notice of marking out in the form No. 20 and the application in the form No. 21 in the First Schedule;

(ii) is within an existing townsite or built up area; or

(c) on the completion of the requirements of paragraphs (a) and (b) of this regulation by fixing firmly to one of the corner posts or cairns which shall be the datum post, notice of marking out in the form No. 20 in the First Schedule.

The first respondent marked out the area of land which was the subject of his application, but in so doing fixed certain of the intermediate pegs on the boundaries so that there were three intervals of more than 300 metres. The discrepancies were not large, the distances being 301, 302 and 303 metres. When the first respondent's application came on for hearing in the warden's court there was an objection by the appellant alleging that the first respondent had failed to mark out the land in accordance with the Act and regulations. The warden upheld the objection, finding that the first respondent had failed to comply with reg 59(b) in that there were three intervals exceeding 300 metres between pegs along two of the boundaries of the relevant land. Accordingly he refused the application.

The first respondent sought to contest the warden's decision by making application for a writ of certiorari. The order nisi to show cause was made returnable before the Full Court of the Supreme Court of Western Australia. That Court, by a majority (Brinsden and Rowland JJ.; Olney J. dissenting), made the order absolute and remitted the application and objection to the warden to be determined according to law. It is from that decision that the appellant now appeals to this Court.

Under s 40(1) of the Act, the warden may, "(s)ubject to this Act ", grant a prospecting licence to an applicant. Section 41(1)(c) requires the application to be made by reference to a written description of the area of land in respect of which the licence is sought, and to be accompanied by a map on which are clearly delineated the boundaries of that area. A survey of the area for which a prospecting licence is sought is not required in the first instance but may be ordered if a dispute arises with respect to the land or the boundaries in order to settle the dispute: s 47(1). Where there is more than one application for a mining tenement (other than a miscellaneous licensee) in respect of the same land, the applicant who first complies with the initial requirement in relation to his application has, subject to the Act, priority: s 105A(1). In the case of a prospecting licence, compliance with the initial requirement means the marking out of the land in the prescribed manner: s 105A(2).

The issue between the appellant and the first respondent is a narrow one. The appellant contends that the warden was obliged to uphold the objection and refuse the application because there was a failure on the part of the first respondent to comply with the relevant marking-out requirement. The first respondent, on the other hand, contends that substantial compliance with that requirement is sufficient to preserve the validity of the application and that he achieved this.

When substantial compliance is held to be a sufficient observance of a statutory requirement it is because the statutory provision containing the requirement is regarded as directory rather than mandatory. Thus in Woodward v Sarsons (1875) LR 10 CP 733 at 746-747 Lord Coleridge C.J. said that "the general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially". One of the difficulties of putting the matter in that way is that there are some statutory requirements with which there cannot be substantial compliance - either they are complied with or not - which have nevertheless been regarded as directory only. This led Gibbs J. in Victoria v The Commonwealth and Connor [1975] HCA 39; (1975) 134 CLR 81 at 161-162 to doubt the statement of Lord Coleridge and to prefer what was said by the majority of this Court in Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214 at 247:

Lawyers speak of statutory provisions as imperative when any want of strict compliance with them means that the resulting act, be it a statute, a contract or what you will, is null and void. They speak of them as directory when they mean that although they are legal requirements which it is unlawful to disregard, yet failure to fulfil them does not mean that the resulting act is wholly ineffective, is null and void. In the same case, Victoria v The Commonwealth and Connor , Stephen J at 180 appears to depart from the view which he expressed in Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242 at 256 that a directory interpretation of a statutory requirement necessitates, as a condition of validity, that there should be substantial compliance with the requirement. In the later case he recognized that a directory construction can be given preserving validity notwithstanding total non-compliance.

The point is relevant because this is a case, in my view, in which substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not. The requirement was that pegs or cairns be fixed along the boundary lines of the mining tenement at intervals not exceeding 300 metres. Either the intervals exceeded 300 metres or they did not. I am unable to understand how it can be said that to exceed the maximum limit was substantially to comply with it. Any number of variations in the distances between pegs up to 300 metres was permissible, but a distance of more than 300 metres was not a compliance at all, let alone substantial compliance, with a provision which forbids intervals of more than 300 metres in length. Had reg 59 required the intervals to be 300 metres in length, then it is perfectly conceivable that there might have been substantial compliance with the requirement. But it did not. It prescribed a maximum length - a limit - which was either observed or was not.

If it were possible to regard reg 59 as playing a subsidiary part to some more general requirement, it might, perhaps, be contended that there was substantial compliance with the general requirement even though there was no compliance at all with reg 59. I am not at all sure that this is how the first respondent put his case, but in any event such an argument cannot in my view be sustained in the context of this legislation. Section 105(1) of the Act requires an applicant for a mining tenement to mark out in the prescribed manner and shape the land in respect of which the mining tenement is sought. The prescription of the manner and shape in which the land is to be marked out does not occupy a subordinate position; it supplies the whole of the content of the statutory requirement which otherwise is without effect. The requirement of s 105(1) necessarily imports the requirements of reg 59 and it is not possible, in my view, to speak of the latter being subordinate to the former in the sense that there might be substantial compliance with s 105(1) despite non-compliance with reg 59.

However, the matter does not end there because, as I have said, not even substantial compliance has been thought necessary in some cases and acts done in total disregard of the statutory requirements have nevertheless been held to be effective. Instances are given by Stephen J. in Victoria v The Commonwealth and Connor at p 180. A subsequent example is to be found in Attorney-General (N.S.W.) ex rel. Franklins Stores Pty Ltd v Lizelle Pty Ltd and Others (1977) 2 NSWLR 955. Even then there may be difficulty in expressing the consequences. For example, if the marking-out requirement in this case were to be regarded as merely directory, it would not seem particularly apt to say, taking up the words cited from Clayton v Heffron , that the act resulting from non-compliance (presumably the application for the prospecting licence) was nevertheless not wholly ineffective, null and void. Rather the question would seem to be whether the warden, upon concluding that there was non-compliance, was bound to reject the application. I shall return to that aspect of the matter in a moment.

At least some of the difficulty stems from the fact that the language customarily used to describe the dichotomy between mandatory and directory enactments is based upon a distinction between the performance of a public duty and the acquisition or exercise of a private right. Indeed, the classification of provisions as merely directory sometimes appears to have been regarded as confined to enactments dealing with public duties. Thus in Montreal Street Railway Company v Normandin (1917) AC 170 the Privy Council in a well-known passage expressed the principle as follows at 175:

When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done. That case is a good illustration of the application of the principle in the area of public duty. The failure of the sheriff in that case to cause the jury list to be revised pursuant to a statutory duty to do so was held not to have invalidated the verdict of a jury selected from names on the unrevised list.

But in this case the statutory requirement involves no public duty; it is merely a step which an applicant, who owes no duty to anyone but himself, must take for his application to succeed under the Act. The question is not whether the first respondent's application was null and void because it was not preceded by observance of the relevant marking-out requirement or whether it was insufficient to invoke the jurisdiction of the warden - for it is clear that the warden must have had jurisdiction to dispose of the application in one way or another - but whether the warden acted in accordance with the law in rejecting it for non-compliance with the Act. The warden may only grant a prospecting licence subject to the Act and therefore it is apparent that he may not properly proceed to grant a licence upon an application made in contravention of a requirement of the Act. If, therefore, the Act required strict observance of the marking-out requirements, it cannot be said that the warden erred in refusing the first respondent's application because of his failure to observe them. That is the question: whether the warden proceeded in accordance with the law in determining that the first respondent failed to meet the relevant marking-out requirements. The question is not whether the warden's jurisdiction to entertain the first respondent's application was conditioned upon the first respondent's observance of the marking-out requirements for it may be conceded that it was not. Correctly or otherwise, it appears to have been accepted on both sides that such a question may properly be raised in proceedings by way of certiorari.

If the concept of a directory enactment is extended to private rights, the question whether a provision is mandatory or directory must nevertheless be one of intent to be gleaned from the scope and object of the statute: Caldow v Pixell (1877) 2 CPD 562 at 566. It is a question of what consequences, if any, were intended to flow from the failure to comply with the statutory requirement and even if the difference between the performance of a public duty and the acquisition or exercise of a private right is not conclusive, that distinction does at least provide some guidance in distinguishing those provisions with which strict compliance was intended from those with which it was not. That point was made in Clayton v Heffron at 247:

But in them all (the decided cases) the performance of a public duty or the fulfilment of a public function by a body of persons to whom the task is confided is regarded as something to be contrasted with the acquisition or exercise of private rights or privileges and the fact that to treat a deviation in the former case from the conditions or directions laid down as meaning complete invalidity would work inconvenience or worse on a section of the public is treated as a powerful consideration against doing so.

No public function is imposed upon an applicant for a prospecting licence and no public inconvenience is worked by holding him to strict compliance with the prescribed conditions to be performed before the making of an application - indeed, public inconvenience may more easily be seen to flow from the failure to do so. It is apparent from other decisions of the warden that in some areas of Western Australia there is fierce competition for mining tenements. More than one application may be received in respect of the same ground. Under s 105A of the Act the applicant who first marks out the land in the prescribed manner has priority. The only practical course is for the warden to deal first with the application which on the face of it is first in time. If (assuming it to be possible notwithstanding the wording of the regulation) substantial compliance with the marking-out requirements were sufficient, then an application which was first in time because short cuts were taken in marking out might achieve priority over an application which was made later because of the delay involved in complying strictly with the requirements. Moreover, (again assuming it to be possible) if substantial compliance with the requirement in question were sufficient, it is likely that the warden would be led by necessity to fix some limit over 300 metres beyond which compliance would not be substantial. That would effectively establish a new maximum distance, greater than that clearly set by the legislature. Yet until some such limit was fixed there would be uncertainty about the extent of substantial compliance.

On the other hand, little, if any, inconvenience would result from insistence upon a strict compliance with the marking-out requirements. The specified interval of 300 metres between pegs is a maximum distance so that any difficulty in achieving precision might be overcome by erring on the side of caution. This would enable an applicant to achieve practical certainty in an area of endeavour where certainty is highly desirable. Section 105(1) of the Act is couched in mandatory terms and manifests an intention that the prescription contained in the regulations should take effect according to its tenor. The regulations themselves give no indication that strict observance of the specified distance between intermediate pegs is not required. On the contrary, where other marking-out requirements are intended to be flexible express provision is made to that effect. Thus, reg 59 speaks of fixing firmly in the ground at each corner or angle of the mining tenement, or as near as practicable thereto, a substantial post or cairn of stones. Regulation 60 provides that where the nature of the ground will not permit a trench being cut in accordance with reg 59, a row of substantial stones that is not less than one metre in length may be substituted. The required interval between pegs is itself flexible as I have said, the flexibility being achieved by setting a maximum but no minimum distance.

The legislative intent is not, however, solely to be discerned from the wording of the Act and the regulations. By s 19(1) of the Interpretation Act 1984 WA a court is entitled, subject to sub-s (3), to have regard to extrinsic materials in construing a provision of written law for the purpose, amongst others, of confirming "that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law". "Written law" is defined in s 5 to mean "all Acts for the time being in force and all subsidiary legislation for the time being in force". Under the same section "subsidiary legislation" includes regulations. Sub-section (2) of s 19, without limiting the generality of sub-s (1), allows reference to be made to, amongst other things, any relevant report of a committee of inquiry that was laid before either House of Parliament before the time when the provision was enacted and the speech of the minister moving that the bill containing the provision be read a second time.

In 1984 a report was made by a committee set up by the Western Australian Government to inquire into aspects of the Act. It does not appear whether the report was actually laid before parliament but clearly reference to it might be made under the general words of s 19(1) of the Interpretation Act. The Mining Amendment Act 1985 WA was passed to implement most of the committee's recommendations: this appears from the second reading speech of the minister. That speech dealt with the committee's recommendations separately under each term of reference. Under the second term of reference the committee dealt with suggestions "that the Act should contain an express power for the warden or the Minister to grant title notwithstanding non-compliance with the Act or the Regulations". The committee noted that such a power already existed in relation to a mining lease and continued at p.26 of its report:

In relation to other tenements the Committee's view is that the procedures required to be complied with in relation to an application are clearly laid down under the Act and compliance with those rules should be a pre-requisite to the grant of an application. A discretionary power to dispense with compliance will lead to uncertainty, careless applications and conflicting decisions. The mining industry has long argued for establishing a set of rules and for those rules to be followed. The relevant recommendation of the committee was that it was "not necessary to include a power for the Minister to dispense with strict compliance with the formalities of an application in the case of an application for any mining tenement except for the existing power in relation to a mining lease". It appears from the second reading speech that this recommendation was accepted: Hansard, Legislative Assembly of Western Australia, 13 March 1985, at p.886.

In my view it is possible to draw the conclusion from the nature of the amendments to the Act by the Mining Amendment Act 1985, and, in particular an amendment made to s 105 itself, that it was the intention of the legislature that there should be strict compliance with the manner prescribed for marking out land in respect of which a mining tenement is sought. That conclusion does not arise from the amendments by themselves because none of them mentions the need for strict compliance. But it does arise from the absence of any provision to that effect in the amending Act when that Act is read with both the committee's report and the second reading speech of the minister. Perhaps close reasoning of this sort is unnecessary because s 19 of the Interpretation Act eschews any reference to the intention of the legislature and seems to allow consideration to be given to extrinsic material to confirm on its own account "that the meaning of the provision is the ordinary meaning conveyed by the text". The report of the committee would go a long way in establishing this of itself, although I must confess to some difficulty in accepting such a notion. See also Interpretation Act, s 19(3). But even adopting the more traditional approach, albeit with the aid of the extrinsic material, the result is, I think, the same.

In Grain Elevators Board (Vict.) v Dunmunkle Corporation [1946] HCA 13; (1946) 73 CLR 70 at 86 Dixon J. expressed the view that an amending Act might be taken into account in the interpretation of the prior legislation, at least to avoid a result that would render the amending legislation unnecessary or futile. I would add that it is but a short step to take, having regard to the expanded scope of the materials which now may be considered, to adopt the same approach in order to avoid rendering the amending legislation deficient. After all, what lies behind the observation of Dixon J. in Dunmunkle is that it is permissible to ascertain the intention of the legislature with regard to prior legislation by reference to amending legislation. No doubt there are limits to this approach for as the House of Lords said in Ormond Investment Co. v Betts (1928) AC 143 at 154 it is not permissible to construe an unambiguous phrase in an earlier Act by an erroneous assumption of its effect contained in a later Act which did not purport to amend or alter the earlier Act. See per Lawrence L.J., Port of London Authority v Canvey Island Commissioners (1932) 1 Ch 446 at 493. See also Deputy Federal Commissioner of Taxes (S.A.) v Elder's Trustee and Executor Co. Ltd [1936] HCA 64; (1936) 57 CLR 610 at 625-626. No such limitation applies in this case, however, where the legislature amended the Act but refrained from amending it more extensively upon the assumption, which may be seen from the extrinsic materials, that it already required strict compliance with the relevant provisions. Upon this basis and for the other reasons which I have given, it is my view that the legislation should be construed as requiring strict compliance with the marking-out provisions and the warden was correct in so construing it.

A further submission was made on behalf of the first respondent in reliance upon s 142(2) of the Act. That sub-section provides:

No proceedings in a warden's court shall be dismissed or vitiated by any informality, but the warden's court has power at any time to amend all defects and errors in any proceedings, whether there is anything in writing to amend or not. In my view, that provision has no application to overcome shortcomings in the marking out of the relevant land by an applicant for a mining tenement. The marking out in the prescribed manner of land in respect of which a mining tenement is sought is no part of the proceedings in a warden's court even if the Act requires the fact to be established, at least when the matter is raised by way of objection, before the application may properly be granted. Nor is it a formality. Furthermore, any deficiency in the marking out is not something which is capable of amendment. Section 142(2) may be contrasted with s 116(2) which provides in part that: Except in the case of fraud, a mining tenement granted or renewed under this Act shall not be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the grant or renewal of that tenement Clearly, the expression "irregularity in the application" is apt to cover deficiencies in the marking out of the land and it is equally clear that the draftsman did not regard informality as being the same thing.

The circumstances giving rise to this litigation, together with the relevant provisions of the Mining Act 1978 WA (the Act) and the regulations made thereunder, appear in the joint judgment of Mason C.J. and Gaudron J. and in the judgment of Dawson J.

It is necessary at the outset to identify precisely the question involved in this appeal. The question is not whether the warden had jurisdiction to entertain the application of the first respondent for a prospecting licence. Clearly the warden had jurisdiction to deal with the application, whether or not there had been a failure to comply with a marking out requirement.

And, in my view, the question is not whether the requirements of reg 59 of the Mining Regulations 1981 WA are mandatory or directory, or whether substantial compliance with the relevant part of the regulation is sufficient. Paragraph (b) of reg 59 is clear enough as to what is necessary as part of marking out a mining tenement:

(b) by fixing firmly in the ground at intervals not exceeding 300 metres along each of the boundary lines of the mining tenement, substantial pegs or cairns of stones .

I agree with Olney J. in the Full Court of the Supreme Court of Western Australia that the words just mean what they say. In this regard it may be noted that the requirements of reg 59 operate "unless where otherwise expressly provided". Regulations 60 and 61 alleviate some of those requirements in certain circumstances but not the one with which this appeal is concerned. Likewise, par (a) of reg 59 refers to trenches "commencing between 1.5 and 2 metres from the post or cairn ", thus providing some tolerance in that regard. But there is no room for reading the particular words of par (b) any way other than that pegs or cairns shall be at intervals not exceeding 300 metres. They may of course be at shorter intervals. The obligation is not one calling for expensive or sophisticated equipment. It can be met, as the warden pointed out in his reasons, by pacing and making quite sure that pegs are well within the permitted distances.

The warden refused the first respondent's application for a prospecting licence because he regarded himself as having no discretion to grant a licence, once it appeared that there had not been compliance with the particular requirement of par (b) of reg 59. The Supreme Court granted an order nisi for a writ of certiorari "to remove into this court for the purpose of being quashed the decision to refuse the Applicant's application for a prospecting licence ". The order nisi was made absolute by the Full Court and it is against the order for a writ of certiorari that the appeal is brought. Whether certiorari was appropriate relief in the circumstances was a point not taken by the respondents.

What has been said so far points up that the question before this Court is whether the warden acted according to law in refusing the application for the reason he did. To that question, the answer I would give is that he did act according to law.

The power of the warden to grant the prospecting licence was, by reason of s 40(1), "(s)ubject to this Act ". Section 105 provides that before making an application for a mining tenement, other than an exploration licence, "the applicant shall mark out in the prescribed manner and in the prescribed shape the land in respect of which the mining tenement is sought." A mining tenement includes a prospecting licence: see s 8(1). The "prescribed manner" referred to in s 105 includes fixing pegs at intervals not exceeding 300 metres along each of the boundary lines as set out in reg 59. This was not done.

Part V of the Act is entitled "General Provisions Relating to Mining and Mining Tenements". Section 105, which is within Part V, has been mentioned already. Section 105A(1), also within Part V, gives to an applicant:

who first complies with the initial requirement in relation to his application the right in priority over every other applicant to have granted to him the mining tenement to which his application relates. The words "complies with the initial requirement" are defined by s 105A(2) to mean, in the case of an application for a prospecting licence, "marks out the land or part concerned in the prescribed manner". So far as prospecting licences are concerned s 105A(1), which came into the Act by way of amendment in 1981, largely repeats what was said in s 43. The latter section had been part of the Act since its inception but was repealed in 1982.

Section 105A can have effect in the manner the legislature clearly intended it should have, only if priority is given to the applicant who has marked out the land in accordance with the regulations. If an applicant has not fixed pegs or cairns along the boundary lines at intervals "not exceeding 300 metres", he has not marked out in accordance with the regulations. In those circumstances, notions of substantial compliance or distinctions between what is mandatory and what is directory have no part to play.

This view of the relevant provisions of the Act is in accord with s 56 which provides inter alia that, where the warden refuses to grant an application for a prospecting licence, the applicant may appeal to the Minister who may dismiss the appeal or uphold it and grant the application on such terms and conditions as he determines. There is no appeal to the Minister from the grant of a prospecting licence by the warden. The Minister's powers on appeal are not expressed to be qualified, either by reference to "subject to this Act " or by other language that might suggest a bar to allowing an appeal where the marking out requirements have not been met. This is not to suggest that the Minister may act in an arbitrary manner; it is, however, to contrast the limitations expressly imposed on the warden with their absence where the Minister is concerned. The dichotomy between warden and Minister is familiar enough in mining legislation.

Section 42(1) requires that an application for a prospecting licence "be heard by the warden in open court", with provision that a person may object to the granting of the application. Section 40(4), introduced by amendment in 1985, contains a procedure whereby in the case of certain Crown land the subject of an application for a prospecting licence, in the absence of objection, "the approval of the warden to the grant of the licence may be deemed to have been given". In that event a licence may be issued by the mining registrar. In such a case there may be no occasion for the warden or the registrar to consider whether the marking out requirements have been met and a licence may issue even though, for instance, pegs or cairns have been placed on boundary lines at intervals greater than 300 metres. Consistency and clarity have not always been a feature of mining legislation in this country and trying to reconcile various provisions is often not fruitful. In any event, I do not think that s 40(4) can be prayed in aid of an interpretation that the relevant marking out requirement does not condition the grant of a licence. The legislature may have accepted that applications for prospecting licences (and s 40(4) is so confined) can live with a degree of informality where there is no contest.

It is reasonable to ask - if the warden did not act according to law in refusing the first respondent's application for a prospecting licence, what was the effect of the order made by the Full Court remitting the matter to the warden "to be determined in accordance with the law"? Was the warden obliged to grant the application, notwithstanding the failure to comply with reg 59(b)? Or was he obliged to approach the matter on the footing that there had been such a failure but it was a defect which did not preclude granting the application? In that event, what criteria should he bring to bear in deciding whether or not to grant the application? These questions (and the uncertainty arising from them) remain while the order of the Full Court stands.

Once a mining tenement is granted, the holder is entitled to receive an instrument of lease or licence (s 116(1)). The "indefeasibility" provision of the Act (s 116(2)) protects a person dealing with a registered holder of a tenement. Except in the case of fraud, no person dealing with a registered holder need be concerned to inquire into the circumstances under which the holder was registered nor is the person affected by notice of any unregistered trust or interest. The provision is similar to the "notice" provision to be found in Torrens System statutes: see for instance Transfer of Land Act 1893 WA, s 134. Although s 116(2) speaks of the registered holder of a mining tenement, the Act itself does not provide a system of registration. This is done by reg 106. While the efficacy of the original grant is not made to depend upon registration, no dealings affecting a mining tenement "shall be effectual to pass any estate or interest until registered" (reg 110(3)).

There is no section corresponding with the Torrens System provision whereby the registered proprietor holds free of any unregistered interest other than those expressly mentioned in the section: cf. Transfer of Land Act, s 68. It should not be assumed therefore that registration of the original grant cures any defects in the application leading to the grant. But it is unnecessary to express a view on that matter. Clearly enough, a person dealing with the registered holder will, in the absence of fraud, obtain the protection of s 116.

As to the first respondent's argument based on s 142(2) of the Act, I am content to adopt what Dawson J. has said. The reference to "proceedings" in the sub-section can have no application to a failure to mark out in accordance with the regulations. Marking out is not part of the proceedings in any relevant sense; nor can a failure to mark out be described as an "informality".

I would allow the appeal and discharge the order nisi of certiorari made by the Supreme Court.

Order that the order of the Full Court of the Supreme Court of Western Australia made on 25 March 1987 be set aside and in lieu thereof order that the order nisi for a writ of certiorari made by Franklyn J. be discharged with costs.