A headnote I wrote for the Australian Law Journal Reports, published by Thomson Reuters.

Forrest & Forrest Pty Ltd v Wilson

91 ALJR 833

[2017] HCA 30

Kiefel CJ, Bell, Gageler, Keane, Nettle JJ

Energy and resources – Minerals – Mining for minerals – Titles: rights, permits, licences and leases etc – Extraction titles – Acquisition of title – Application – Western Australia – Mining lease applications – Prescribed accompaniments to application – “Shall be accompanied by” – Late lodgment of mineralisation report – Effect on jurisdiction to recommend grant – Mining Act 1978  (WA) 74(1)(ca)(ii), 74(1a), 74A(1), 75(6)

Energy and resources – Minerals – Courts or tribunals exercising jurisdiction in mining matters – Western Australia – Warden’s Court – Jurisdiction and powers

Statutes – Acts of parliament – Statutory powers and duties – Exercise – Delegation of power conferred by Act – Importance of complying with statutory regime

The Mining Act 1978 (WA), s 74, relevantly provided that:

“(1) An application for a mining lease –

(a) shall be in the prescribed form; and

(ca) shall be accompanied by –

(i) a mining proposal; or

(ii) a statement in accordance with subsection (1a) and a mineralisation report prepared by a qualified person;

and

(d) shall be lodged in the prescribed manner”.

In July 2011, the second respondent and the fourth respondent lodged applications for mining leases over land near Onslow in the Pilbara region of Western Australia. The land lay within the boundaries of a pastoral lease held by the appellant.

The applications were not accompanied by either a mining proposal (as required by s 74(1)(ca)(i)) or a statement in accordance with s 74(1a) and a mineralisation report (as required, in the alternative, by s 74(1)(ca)(ii)).

A few months after the applications were lodged, a mineralisation report for each application was lodged. In September 2011, the appellant lodged objections to those applications.

In January 2014, purportedly pursuant to s 75(4), the first respondent Western Australian Mining Warden determined that he had jurisdiction to hear the contested applications, and proceeded to make a recommendation to the Minister that the leases be granted.

The appellant applied to the Supreme Court of Western Australia for judicial review of that decision, arguing that the warden made a jurisdictional error in determining that he could hear the applications, on the ground that that jurisdiction could be enlivened only if the applicant had complied with the requirement for a mineralisation report in s 74(1)(ca)(ii). No complaint was made about the failure to lodge the statement in accordance with s 74(1a).

The primary judge concluded that the warden’s hearing of the applications did not involve a jurisdictional error. The Supreme Court of Western Australia (Court of Appeal) dismissed the appeal, holding that, although s 74(1)(ca)(ii) did require a mineralisation report to be lodged contemporaneously with an application, that requirement was not a condition precedent to the hearing by, and recommendation of, the warden, with the result that the application could progress provided that a mineralisation report was lodged at some later point in time.

The appellant appealed to the High Court of Australia.

Held (allowing the appeal; by majority): (1) (by Kiefel CJ, Bell, Gageler and Keane JJ)  (1) The clear meaning of s 74(1)(ca)(ii), as a matter of ordinary parlance, is that the documentation relied upon must be lodged at the same time as the application is lodged. The text of s 74(1)(ca) does not admit of any ambiguity or doubt on this point.  The tenor of s 74(1)(ca)(ii) is both precise and prescriptive, conveying an intention not to countenance any degree of non‑compliance with the requirement. [67], [83]

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 72 ALJR 341, applied.

(2) Any inconvenience suffered by treating the requirements of the Act as conditions precedent to the exercise of the Minister’s power would enure only to those with some responsibility for the non‑observance, whereas the contrary view would disadvantage both the public interest and individuals who were within the protection of the Act. [63], [65]

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 72 ALJR 341, explained.

(3) The Court of Appeal erred in relying on a presumption against characterising the requirements in ss 74(1)(ca), 74A(1), 75(4) and 75(4a) as steps in a sequential process prescribed for the exercise of the power to make a grant, departure from which led to legal invalidity.  Effect should have been given to the text of the Act, bearing in mind that it established a regime to facilitate the grant of rights to exploit the valuable resources of the State. [81]

(4) Non‑observance of the requirements of the regime governing the grant of mining leases was apt to disadvantage both the public interest and individuals in ways that the Act did not intend. Compliance with the regime established by ss 74, 74A and 75 was apt to improve administrative efficiency and to avoid backlogs by reducing the number of defective applications for mining leases that mining registrars, wardens, Directors, Geological Survey, and officers of the Department administering the Act have to manage and follow up.  The Court of Appeal failed to appreciate that reduction of the problems of management of applications for mining tenements, an “object of the prescriptive regime constituted by ss 74, 74A and 75” would be furthered by the Act denying validity to acts done in disregard of the statute.  [82], [84]

(5) Pursuant to s 75(4a) the only kind of application which a warden is able to hear, if those conditions be satisfied, is an application accompanied by the documentation referred to in s 74(1)(ca)(ii).  An application not so accompanied is outside the statutory regime. [26]

(6) 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.  When a statute that provides for the disposition of interests in the resources of a State “prescribes a mode of exercise of the statutory power, that mode must be followed and observed”.  The statutory conditions regulating the making of a grant must be observed.  A grant will be effective if the regime is complied with, but not otherwise. [64], [65]

Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520; Nicholas v Western Australia [1972] WAR 168, applied.

(7) (by Nettle J dissenting) Strict compliance with the requirements of s 74(1)(ca)(ii) is not a condition precedent to the exercise of the Minister’s power under s 75(6) to grant an application for a mining lease. [120]

Decision of the Supreme Court of Western Australia (Court of Appeal), reported at (2016) 10 ARLR 81, reversed.

A writ of certiorari issued quashing the report and recommendation made by the first respondent.

Appeal from the Supreme Court of Western Australia (Court of Appeal)

PAUL McCORMACK