Wade v Burns

High Court of Australia|1966-07-01|Before: Owen JJ

The application for authority to enter, which was lodged with the warden's clerk on 4th November 1960, was made under s. 70A of the Act. That section is to be found in Div. 4A of Pt IV of the Act, a division which was added to the Principal Act in 1918 and which deals, as its heading says, with "Mining on private lands held without reservation of minerals". It introduced into the Act for the first time provisions whereby a person not being the owner of private land might be granted an authority to enter that land and later a mining lease of it giving him the right to mine for minerals which were, under the common law, the property of the owner of the land. Section 70A, which is the source of the warden's power to grant an authority to enter under Div. 4A, was, until 1963, in these terms: "70a. (1) Except as hereinafter provided, it shall be lawful, on and after the first day of January, one thousand nine hundred and nineteen, for the warden to grant to any holder of a miner's right authority to enter in and upon any private lands and search for any minerals which at the date upon which the authority is granted are not reserved to the Crown. (2) Application for any such authority to enter shall be made to, and such authority may be granted by the warden subject to assessment and payment of rent and compensation in the manner prescribed by Division 2 of this Part of this Act and the regulations thereunder in the case of authorities to enter applied for or granted thereunder. (3) Every such authority shall confer the like rights and privileges and entail the like obligations and penalties as are respectively prescribed by this Act in relation to authorities to enter granted under the said Division, save only that the holder shall not be required to pay any royalty to the Crown in respect of any minerals (other than minerals reserved to the Crown) won from the land included in such authority to enter." In 1963, sub-s. (2) of the section was amended by Act No. 57 of 1963 by omitting the words "be granted by the warden" from their original position and inserting them after the word "compensation". This was no doubt done to make it plain that it was the application for and the grant of an authority to enter under Div. 4A that were to be made and granted in the manner prescribed by Div. 2 of Pt IV and the regulations thereunder and not merely the rent and compensation that were to be assessed in the manner prescribed by that division. I think, however, that the meaning of the sub-section in its original form was the same as that which it now bears and, for this reason, I find it unnecessary to decide whether or not it was the sub-section as so amended or as it stood earlier which was applicable to the present case.

In June 1965 the warden held an inquiry for the purpose of considering the appellant's application and on 13th August 1965 he refused to grant it for two reasons which he gave. The first of them was based upon s. 46 (3) of the Act, a section which is in Div. 1 of Pt IV. Section 46 (1) declared that all private lands should be open to mining for gold and for silver when reserved to the Crown. Section 46 (2) provided that if the Crown grant of any private land contained, or if not yet issued would when issued contain, a reservation to the Crown of all minerals, the land should be open to mining under Pt IV for all minerals and s. 46 (2A), added in 1935, empowered the Governor to exempt any private land from the provisions of the Act and to revoke or amend any such exemption. Section 46 (3) was in these terms: "Provided that, except as hereinafter in this Act provided, no application for an authority to enter shall be granted under this Part in respect of any land in or upon which any person other than the applicant is at the time of the making of the application entitled under this Part to search or prospect for gold or any mineral or in or upon which any person other than the applicant is lawfully carrying on mining operations, whether under this Act or the Acts hereby repealed". The Act of 1963 amended this sub-section by adding the words "or entitled to carry on" after the words "carrying on" wherever occurring. Here again I think it unnecessary to decide whether it is the original provision or its words as amended that should be applied in the present case.

The warden was of opinion that s. 46 (3) applied to an application made under s. 70A and that at the time when the appellant's application was made in November 1960 there was a person other than the appellant "entitled under this Part to search or prospect for" privately owned minerals. This last conclusion was based upon the fact that in December 1956 a written agreement had been made between the then owners of the land on the one hand and the appellant and one Foyster on the other, by which the owners had granted to the appellant and Foyster the right to mine the land for rutile and other privately owned minerals. The agreement was for a term of five years and although no mining work had been done on the land by the appellant or Foyster since the end of 1957 because the price of rutile had fallen, the agreement was, the warden considered, still operative at the date of the appellant's application in November 1960 for an authority to enter. Following upon the making of that agreement the requirements of s. 70 (12) (f) had been fulfilled. That paragraph provided that "Any person who, otherwise than in pursuance of an authority to enter or a lease under this Part or any application therefor, mines privately owned minerals other than coal or shale shall within one month after commencement of such mining give notice thereof to the Under Secretary for Mines and furnish particulars of the area being so mined together with a copy of the lease or agreement (if any) under which such person is mining such privately owned minerals". By reason of the fact that notice of the agreement of 1956 and the other particulars required by the paragraph had been given to the Under Secretary for Mines, Foyster was, the warden considered, a person other than the applicant who was, within the meaning of s. 46 (3), "entitled under this Part to search or prospect for minerals" on the land the subject of the appellant's application. He therefore refused to grant the application.

The first question to be considered is whether s. 46 (3) applies to an application made under s. 70A of Div. 4A. The sub-section is, in form, a proviso to the preceding sub-sections, but is not limited in its operation to minerals which are reserved to the Crown. It should be noticed that the prohibition which it contains is against the grant of an authority to enter " under this Part " in respect of any land in or upon which a person other than the applicant is entitled " under this Part " to search or prospect for gold or any mineral, and that at the time when it was enacted there was no Div. 4A in Pt IV. It should be noticed also that its opening words are "Except as hereinafter in this Act provided".

Division 4A contains several sections which in express terms impose limitations upon the power to grant an authority to enter private land to search for minerals which are not reserved to the Crown or to obtain mining leases of such land. The first of these sections is s. 70D (1) which forbids the grant of an application for authority to enter upon or for a mining lease of land upon which, at the time of the application, mining operations are being carried on by the owner or with his concurrence. Section 70D (2) declares that ss. 47 and 48 (which are in Div. 2 of Pt IV) are to apply to applications for authority to enter or for a lease under Div. 4A. Section 47 provides that no authority to enter and no lease under the Part shall, except with the consent of the land owner, extend to within certain distance of specified improvements on the land, such as a garden or orchard or the principal residence of the owner and s. 48 makes a somewhat similar provision with regard to cultivated land. Section 70E, which is in Div. 4A, provides a degree of protection for certain colliery holdings.

Section 70A (1) which, as I have said, is the source of the warden's power to grant an authority to enter under Div. 4A, opens with the words " Except as hereinafter provided, it shall be lawful" to grant such authorities and no doubt when the draftsman came to insert what I will call the protective provisions in that division, he would have had these opening words in mind and for this reason he expressly incorporated the provisions of ss. 47 and 48 in s. 70D. He must surely have realized also that s. 46 (3), although in form a proviso, contained a further protective provision which, if it was intended that it should apply to applications made under Div. 4A, would by reason of the opening words of s. 70A (1) require also to be included in that division either by incorporating it by reference (as was done with ss. 47 and 48) or by setting out the substance of the exemption which it contains. Yet he took neither of these courses and, subject to a contention which I will mention, the existence of ss. 70D and 70E in Div. 4A and the express incorporation in that division of ss. 47 and 48 point to the conclusion that ss. 47, 48, 70D and 70E were intended to provide an exclusive statement of the protection to be afforded to owners of private lands against the grant under Div. 4A of an authority to enter. For the respondents it was contended, however, that a legislative intention that s. 46 (3) should operate in the case of applications under Div. 4A is to be found in s. 70A (2) which provides that an application for an authority to enter under that section may be granted "in the manner prescribed by Division 2 of this Part of the Act and the regulations thereunder in the case of authorities to enter applied for or granted" under Div. 2. I should here interpolate that although s. 46 (3) appears in Div. 1 and not in Div. 2, it applies to applications under Div. 2 because s. 50 (1) of Div. 2 empowers the warden to grant authorities to enter private lands "subject to the provisions of this Act" and s. 46 (3) is one such provision. I agree therefore that in exercising the power conferred upon him by s. 51 (1) to grant an authority to enter private lands under Div. 2 of the Act, the warden must apply s. 46 (3) of Div. 1.

This does not carry the respondents the whole way. They must show that s. 50 and with it s. 46 (3) are taken into Div. 4A by s. 70A (2) and this they seek to do by saying that s. 46 (3) prescribes the manner of applying for or granting authorities to enter applied for or granted under Div. 2. I cannot accept this submission. Section 50 contains some provisions prescribing the manner of applying for and granting authorities to enter but s. 46 (3) is not, in my opinion, one of them. What it does is to forbid the grant of an authority to enter if certain facts exist. It is a protective clause and cannot be properly described as one which prescribes the manner in which an authority to enter may be granted.

In the result, therefore, I am of opinion that the warden fell into error in thinking that s. 46 (3) applied to the application which he had to consider. It follows that in refusing to grant that application because of its provisions he acted under a misconception of the law which it was his duty to apply.

The second ground upon which the warden refused to grant the appellant's application was based upon s. 50 (2) (a) which he considered applied where an application for authority to enter was made under Div. 4A. Section 50 (2) (a) gave the warden a discretion to "refuse any application for authority to enter - if the land is the subject of an application or holding under this Part or under any Act hereby repealed, or is exempted from lease under this Part". It was amended by the Act of 1963 but, as in the case of the other amendments made by that Act to which I have earlier referred, I think it is unnecessary to decide whether the sub-section should be applied to the present case as it stood when the appellant's application was made or as it stood after its amendment in 1963.

Here again, reliance is placed by the respondents upon s. 70A (2) as making s. 50 (2) (a) apply to applications under Div. 4A. For the reasons which I have given in dealing with s. 46 (3) I do not agree that this is so. Section 50 (2) (a) empowers the warden to refuse to grant an authority to enter if the facts set out in the paragraph exist. It does not prescribe the manner in which an authority may be granted and in holding that it applied to an application under Div. 4A the warden, in my opinion, again took into account and applied a provision which was irrelevant to the matter which he was called upon to decide.

It was said that the construction that I have adopted will result in anomalies. This may well be so but the difficulties of construing the patchwork of provisions in the Act as it now stands are such that anomalies will occur no matter what construction is placed upon the sections with which this case is concerned.

One further matter remains to be mentioned. In the course of his reasons for refusing to grant the appellant's application, the warden said that the Act gave him no "general discretion" to refuse such a grant. He said that if such a "general discretion" had been conferred upon him he would have refused to grant the application because the appellant had had "clear access" to the land in question under the agreement made with the land owners in December 1956 but had not taken full advantage of it. In these circumstances, he said, it did not seem right that he should "be allowed access by a different route". Counsel for the respondents submitted that the warden had what he had described as a "general discretion", and that we should so hold. In that event, he said, it would be futile to grant mandamus in the light of the warden's opinion that if his discretion was wider than he believed it to be, he would have refused the application. I do not agree that we should take that course. It may be that a wider discretion than that which he thought was conferred upon him is vested in the warden. We did not hear full argument on the point or on the question whether, if he had such a discretion, the ground upon which he said he would have exercised it afforded any justification for refusing the application. I express no opinion on either point. The fact is that it was not for that reason that the application was refused. It was refused because the warden wrongly considered himself bound to apply ss. 46 (3) and 50 (2) (a) and applied them. In doing so he constructively failed to hear and determine the matter according to law and mandamus should, in my opinion, go.

High Court of Australia Barwick C.J. McTiernan, Taylor, Menzies and Owen JJ. Wade v Burns [1966] HCA 35

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