I have considered these decisions, but they do not assist in the construction of the Mining Act.

15 As appears from s 42(3) of the Mining Act, the statutory power vested in the mining warden is to 'hear and determine' the application for a relevant licence. However, the applicant submits that the warden has an implied or incidental power to control the proceedings before him. This, it is submitted, would include a power to dismiss applications as an abuse of process, as in this case.

16 The applicant submits that the source of the implied or incidental power is s 50 of the Interpretation Act 1984 (WA). Section 50(1) provides:

Where a written law confers upon a person power to do or enforce the doing of any act or thing, all such powers shall also be deemed to be conferred on the person as are reasonably necessary to enable him to do or to enforce the doing of the act or thing.

17 There is no doubt that when sitting in open court to consider whether to grant or refuse a prospecting licence (including a miscellaneous licence), the warden is acting in an administrative capacity, albeit judicially: Re Calder; Ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525, 529, Re Minister for Mines, Fuel & Energy; Ex parte Trythall (1992) 7 WAR 375, 389.

18 It follows, if the applicant's submissions are correct, that an administrative decision made by the warden to refuse a licence on its merits would be amenable to an appeal to the Minister, whereas an administrative decision to dismiss the application on some legal ground would not be appealable. The applicant does not regard that distinction as unreasonable. It submits that questions of law should be for the courts, rather than the Minister. However, as the MMJV point out, questions of law might well arise in decisions made on the merits: questions of construction, for example.

19 The MMJV submits that the applicant's construction would be contrary to the scheme of the Mining Act which makes the grant or refusal of prospecting licences ultimately a matter for the executive government, rather than the courts.

20 Clearly, the decision whether or not to grant a prospecting licence does not involve the determination of rights in a dispute between private individuals. Rather, it involves the grant of an interest in property which is owned by the State and for which the executive government is responsible. That being so, the MMJV submits, it is to be expected that the ultimate repository of the power to grant or refuse licences would be the responsible Minister, acting on behalf of the government. The MMJV relies on a number of provisions of the Mining Act which support this view.

21 Section 13(1) of the Mining Act provides for the Governor to appoint magistrates as wardens of mines. However, s 13(2) provides for the appointment by the Governor of other fit and proper persons to hold that office. Then by s 13(4), a person who holds office under pt 3 of the Public Sector Management Act 1994 (WA) may be appointed as a mining registrar.

22 By s 40, the mining registrar or the warden may grant prospecting licences. But the mining warden may do so only when no notice of objection has been lodged. Where there has been a notice of objection, a warden must 'hear and determine the application'. Thus, the grants may be made and objections determined by persons who are not legally qualified.

23 The MMJV submits that by these provisions, the legislature has set out the precise ambit of the power vested in the mining warden and mining registrar to grant interests in State-owned property.

24 The right of appeal to the Minister in s 94 emphasises the administrative nature of the powers. This is emphasised further by s 111A of the Mining Act which provides:

(a) by notice served on the mining registrar or the warden, as the case requires, terminate an application for a mining tenement before the mining registrar or the warden has determined, or made a recommendation in respect of, the application; or

(b) refuse an application for a mining tenement,

if in respect of the whole or any part of the land to which the application relates -

(c) the Minister is satisfied on reasonable grounds in the public interest that -

(i) the land should not be disturbed; or

(ii) the application should not be granted;

or

(d) a person who in relation to the land was formerly the lessee of a mining lease the term of which has expired, or is a person deriving title through such a former lessee, has subsequently made a late renewal application and the Minister, being satisfied that the requirements of that expired mining lease and of this Act in relation to that lease had been substantially observed (other than as to the timing of an application for renewal) and that the person has continued to observe those requirements as if the term of the lease had not expired, determines that the renewal application should be approved and grants that renewal.

25 If the applicant's submissions are correct, the Minister could exercise his power under s 111A to remove from the warden an application which was subject to (for example) an abuse of process objection, whereas, if the warden had upheld the objection and dismissed the application, the Minister could no longer be involved in the matter.

26 In my view, these considerations lead to the conclusion that the MMJV's construction of the Mining Act is to be preferred. I accept the MMJV's submission that the principle applicable in this case is that to which Brennan J referred in Walton v Gardiner (1993) 177 CLR 378, citing R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389, 398:

Where a jurisdiction is conferred on a court, 'and where such a jurisdiction is created for the public benefit or for the purpose of conferring rights or benefits upon persons the court upon an application properly made is under a duty to exercise its jurisdiction and is not at liberty to refuse to deal with the matter ...' (414)

27 It follows, that in dismissing an application, the warden is not exercising an implied or incidental power of the kind for which the applicant contends. That is because such a power is not 'reasonably necessary' to enable the warden to perform the only function available to him under s 42 of the Mining Act: to 'hear and determine' the application for the licence. An application which is dismissed must therefore be taken to have been refused, with the result that the unsuccessful applicant is entitled to appeal to the Minister pursuant to s 94.

28 The application for a writ of prohibition must therefore fail.

29 In this part of its application, the applicant seeks to compel the Minister, on the hearing of the appeal, to

receive and consider any evidence tendered by [the applicant] in opposition to the appeal; and

limit consideration of the appeal to tenements referred to in the Warden's decision other than application L37/129.

30 The applicant is concerned that the Minister will not consider evidence the applicant considers to be relevant. This concern arises from correspondence between the applicant's solicitors and officers of the Department of Industry and Resources acting on behalf of the Minister.

31 On 11 July 2007, the Director, Mineral and Title Services Division of the Department, wrote to the applicant's solicitors after considering the rival contentions as to the MMJV's entitlement to appeal from the warden's decision.

[I]t is intended the Minister will consider the appeal pursuant to s 94(3) of the Mining Act 1978 based on submissions received as well as subsequent responses to each primary submission. There is no requirement in the Act, nor is it practical or necessary, for the Minister to entertain oral or other evidence following a decision of a Warden.

1. I confirm it is intended to proceed with the appeal;
2. It is not conceded that the Minister will breach the principles of procedural fairness by not receiving direct evidence.

34 On 3 August 2007, following a request to clarify the term 'direct evidence', the Director wrote:

As per my 11 July letter, the intention is that the Minister would determine the appeal based on submissions and counter submissions from the parties. We are at a point where each party has lodged its primary submission and, depending on the outcome of your Writ action of course, each party would be given an opportunity to comment on the respective primary submission.

So in this context not receiving 'direct evidence' means that the only 'evidence' the Minister will take into account would be the affidavit evidence put before the Warden in respect to the dismissal application.

35 As noted above, the warden did not deal with the merits of the MMJV's licence application. That being so, there was no evidence relating to those matters before the warden. The applicant submits that it will be denied natural justice if it has no opportunity to present evidence relating to the merits.

36 Leading counsel for the MMJV submitted that the Minister's stated intention to proceed on the basis of the material before the warden arose from a misunderstanding of the circumstances. That may well be so: although it is not necessary to dwell on the matter. That is because, as counsel for the MMJV acknowledged, it is obviously necessary, in order to afford the parties procedural fairness, that both the MMJV and the applicant be permitted to put before the Minister such evidence as they consider fit in relation to any issue in controversy between them.

37 In these circumstances, I accept the MMJV's submission that it would be inappropriate to issue a writ of mandamus against the Minister. It is to be expected that once the Minister becomes aware of the full circumstances, he will deal with the appeal in a proper manner.

38 In relation to the second limb of the mandamus application, the applicant contends that the warden's decision in relation to application L37/129 cannot be challenged until the warden has disposed finally of that application.

39 I do not accept that submission. In my view, although the warden's decision to dismiss the application L37/129 was made only in relation to part of the ground, it was nevertheless a refusal of a licence in the sense referred to above, such that the appeal provisions of s 94(3) of the Mining Act are applicable.

40 For all these reasons, I consider that the application for a writ of mandamus must fail also.