Forrest and Forrest Pty Ltd v Wilson

The High Court has allowed an appeal against a decision of the Western Australian Court of Appeal on the statutory preconditions for the grant of mining leases. In 2011, two of the respondents made applications to have their mining exploration licences converted into lining leases. Those applications did not include a ‘mineralisation report’ (which arrived four months later) or a ‘mining operations statement’ (which never arrived), both of which the Mining Act 1978 (WA) required an application ‘shall be accompanied by’. Nonetheless, the Mining Warden recommended the leases be granted and the Minister made the decision to do so. The WASCA held that while the applications failed to meet the requirements of the Act, that failure did not preclude the warden or Minister from considering or granting the applications, as they were not factors that had to be considered before the leases could be recommended or granted.

The High Court held, 4:1, that the WASCA erred in its construction of the statutory regime (Kiefel CJ, Bell, Gageler and Keane JJ, Nettle J dissenting).

The majority (Kiefel CJ, Bell, Gageler and Keane JJ) emphasised that considering the WASCA’s reasoning must begin with a consideration of the majority judgment in Project Blue Sky v ABA [1998] HCA 28. Whereas the WASCA had relied on that approach to conclude that the document submission were not conditions precedent to a hearing or recommendation by the warden (see [47]ff), the majority held that the present case was ‘readily distinguishable’ from Project Blue Sky (see at [61]–[62]) in several ways: the statute listed essential preliminaries and structured as steps in a process of reasoning, rather than the indeterminate rules at issue in Project Blue Sky, and it related to a regime for making grants of rights, rather than a general regulation of agency functions in Project Blue Sky (see [63]). The majority then noted that (at [64] citations omitted):

[r]egrettably, the Court of Appeal was not referred to, and did not consider, the line of authority which establishes that where a statutory regime confers power on the executive government of a State to grant exclusive rights to exploit the resources of the State, the regime will, subject to provision to the contrary, be understood as mandating compliance with the requirements of the regime as essential to the making of a valid grant.

This approach is not contrary to Project Blue Sky, and it does serve the additional principle that parliamentary control of the lands held by the State reflects a public interest which would not be well served by allowing non- or partial compliance with a legislative regime: ‘To permit such a state of affairs might imperil the honest and efficient enforcement of the statutory regime, by allowing scope for dealings between miners and officers of the executive government in relation to the relaxation of the requirements of the legislation. One can be confident that such a state of affairs was not intended by the Act.’: at [65].

Turning to the language of the provisions, the majority emphasised that ordinary meaning of these provisions suggested the documentation should have been lodged at the time of the application and its precision suggested that no degree of non-compliance was possible (at [67]–[68]). Consequently, the Court of Appeal erred: in assuming that an application could proceed in the case of non-compliance; in treating the documentation requirements as though the lodging date might be extended; and in reading the conditional words on the powers and duties of various officers (‘if an application … is accompanied by the documentation …’, terms which ordinarily would refer to things that have to be done) as also extending to applications that were not accompanied by those documents (at [69]–[73]). Further, the provisions relating to non-compliance, irregularities or informalities did not manifest any intention that any and all kinds of non-compliance with the application provisions could be disregarded when the Minister made his or her determination (see [74]–[76]). Finally, there is no possibility of presuming that the Act allows the warden to make mistakes as to facts upon which the warden’s jurisdiction depends (see at [78]–[80]). Consequently, the WASCA erred in its interpretation of the text of the Act and its context of establishing a regime to grant rights to exploit State resources (at [81]).

The majority then turned to the objects of the statutory regime. Noting the Court of Appeal’s conclusion that strict compliance might unacceptably lead to ‘delays, costs and other prejudice’ which two respondents had allegedly suffered, the majority stated that these delays were results of their own non-compliance with the Act, and overlooked that non-compliance would likely lead to disadvantage to the public interest and to individuals in ways that parliament did not intend (at [82]). Compliance was apt to improve administrative efficiency by requiring the submission of documents necessary for it to proceed to the Minister, and to ensure that other landowners who might hold rights to object would not be troubled by ‘half-baked proposals’ (see [83]–[90]). The majority then made a series of points on costs splitting (at [92]ff), before making orders declaring the warden lacked jurisdiction to hear the respondents’ applications and that the warden did not make a valid report or recommendation to the Minister, and issued a writ of ceritorari quashing the warden’s purported report and recommendation (see [99]).

Nettle J dissented, holding that while s 74(1)(ca)(ii) required the application be accompanied by the documentation, the relevant enquiry is not into the clarity and precision of the requirements in s 74, but instead whether the Mining Act as a whole reveals a statutory purpose that failure to lodge documents at the same time as the application is made should, by that fact, vitiate the Minister’s power to grant a mining lease (at [102]). For Nettle J, three considerations suggested that it did not have that purpose: first, that it would not frustrate minor delays (at [103]); secondly, that the Minister holds apparently broad powers to grant or refuse an application (at [104]–[105]); and thirdly, the wide protections against impeachments, informalities or irregularities in the application process go against that reading ([106]–[119]. Consequently, the documentary requirements were not conditions precedent to the exercise of the Minister’s power, and the appeal should be dismissed (at [120]).

High Court Judgment [2017] HCA 30 17 August 2017
Result Appeal allowed
High Court Documents Wilson
Full Court Hearing [2017] HCATrans 64 31 March 2017
Special Leave Hearing [2016] HCATrans 264 10 November 2016
Appeal from WASCA [2016] WASCA 116 2 September 2016
Trial Judgment, WASC
[2015] WASC 181 28 May 2015
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

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