Creasy v Hot Holdings Pty Ltd and ORS P58/1996 (Tue, 4 Nov 1997 15:11:20 +1100 (EST)) [1997] HCATrans 343 (4 November 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P56 of 1996

B e t w e e n -

HOT HOLDINGS PTY LTD

Applicant

and

MARK GARETH CREASY, ROBERT WILMOT CREASY, MINERICHIE INVESTMENTS PTY LTD, TROMEN PTY LTD, ARIMCO MINING PTY LTD and ORESEARCH N.L.

Respondents

Office of the Registry

Perth No P57 of 1996

B e t w e e n -

MINERICHIE INVESTMENTS PTY LTD

First Applicant

TROMEN PTY LTD

Second Applicant

and

MARK GARETH CREASY

Respondent

Office of the Registry

Perth No P58 of 1996

B e t w e e n -

MARK GARETH CREASY

Applicant

and

HOT HOLDINGS PTY LTD, MINERICHIE INVESTMENTS PTY LTD, TROMEN PTY LTD, ARIMCO MINING PTY LTD and ORESEARCH N.L.

Respondents

Applications for special leave to appeal

TOOHEY J

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 24 OCTOBER 1997, AT 12.41 PM

Copyright in the High Court of Australia

MR N.P. HASLUCK, QC: May it please the Court, I appear with MR C.G. COLVIN, for the applicant, Hot Holdings, in matter No 56 of 1996. (instructed by Lawton Gillon Tydde)

MR M.J. McCUSKER, QC: May it please your Honours, I appear with my learned friend, MR M.P. WORKMAN, for the respondents in application No 56 of 1996, the respondent in application No 57 of 1996 and the applicant in No 58 of 1996. (instructed by Pullinger Stewart)

MR A.J. MYERS, QC: May it please the Court, I appear with MR N.D.C. DILLON for the applicants in No 57 of 1996. Contrary to what appears on the notice outside the Court we do not appear in either No 56 or No 58 of 1996, simply as applicants in No 57. (instructed by Corrs Chambers Westgarth)

TOOHEY J: I hold a certificate from the Deputy Registrar in the following terms:

I have been informed by Corrs Chambers Westgarth, solicitors for the third and fourth respondents in matter P56 of 1996, and the second and third-named respondents in matter P58 of 1996 that those parties do not wish to be represented at the hearing of those matters and will abide by any order of the Court save as to costs.

I have also been informed by Mallesons Stephen Jaques, solicitors for the fifth and sixth-named respondents in matter P56 of 1996, and the fourth and fifth-named respondents in matter P58 of 1996 that those parties do not wish to be represented at the hearing of those matters and will abide by any order of the Court save as to costs.

Mr Hasluck, there is a question immediately arises as to the manner in which these applications should be dealt with. Do counsel have a particular view on this

MR HASLUCK: Yes, there has been some discussion of this, your Honour, and I think, particularly, from Mr McCusker's point of view, the feeling was that although there is obviously a common factual substratum that, nonetheless, it would be more efficient and orderly to deal with each application for special leave in turn because I understand from Mr McCusker that if perchance the application by Hot Holdings was refused, that would reduce the matter of argument that he would wish to advance in the other matters.

TOOHEY J: It would be a great pity to have to hear from counsel on matters that, in the end, proved unnecessary to hear from.

MR HASLUCK: And I am certainly content to proceed on that basis, that I speak only initially to my application.

TOOHEY J: Yes, that is the view of the Court too, Mr Hasluck.

MR HASLUCK: Thank you, your Honour, if that is agreeable to you. Just to complete those formalities, your Honour, I should have added that I am also appearing for Hot Holdings in its capacity as first respondent in matter No 58 of 1996, but it follows from what has been said we will come to that.

KIRBY J: These applications involve no more than the meaning and application of a Western Australian statute and regulations, is that correct?

MR HASLUCK: The latter application, in our submission, yes. Perhaps your Honour's comment brings me immediately to my own application, No 56, and I do suggest that this application does raise a matter of public importance.

McHUGH J: It may have once, even that is debatable, but what about the effect of regulation 18A of the Mining Regulations? Has it not made this whole question irrelevant now?

MR HASLUCK: In my submission, not, your Honour, and I do intend to come to that but, very briefly, in response to your Honour at this moment: regulation 18A addresses a comparatively narrow component of the question of priority, in our submission, and the broader issue I attempt to put before your Honours is to say that the question of public importance is what is the purpose evident in the Mining Act 1978 which guides the determination of priority between applicants for mining tenements and our submission is that that is an issue which permeates the Act as a whole because it goes to the route of title conferred for mining tenements under this Act and therefore it - - -

TOOHEY J: It may do that but at the same time - well, almost beg the question: the words that really we are concerned with are those words "at the same time", are we not? Could I just take it one step further. Once a meaning has been attributed to those words, at least in a particular factual context, is there anything more that arises?

MR HASLUCK: In my submission, certainly, yes, there is a broader issue. I do agree that the specific issue which would certainly be resolved on the facts of this case, as a specific issue, is what is the meaning of that phrase, but the thrust of the argument I put to you this morning is that one cannot satisfactorily resolve that specific issue without resolving the broader issue which has previously been canvassed in various courts but not resolved as to what is the constituent of a right in priority and that can only be resolved by looking at the underlying purpose of the Act, thus bringing into issue a matter which has not yet been fully considered by the Full Court or the courts below as to what is the nature of the route of title in regard to tenements of this kind. That is the broad issue we respectfully suggest is thrown up by the matter at this moment, and I would appreciate an opportunity to develop that point briefly.

TOOHEY J: Yes.

MR HASLUCK: Now, we say, as is indicated in the outline, that this is a question of what is the purpose underlying the particular provision of the Act we are concerned with, namely, section 105A which deals with the matter of priority generally. This is a matter which, in our submission, it is understood by the mining industry generally and is consistent with the decided cases that the Act discloses a purpose in rewarding priority in the sense that priority is afforded to those who display expedition, diligence and, therefore, ultimately, development of the mining resource.

McHUGH J: Yes, I know, but that leads you nowhere, does it, in this particular case because in the end you have still to say what is meant by the words "at the same time"?

MR HASLUCK: In my submission, perhaps, your Honours, if I could take you to page 180 of the application book where his Honour the Chief Justice, in our submission, in a rather cursory way, endeavoured to address what the purpose of this ballot provision was and he says at line 25, at the foot of that page:

In my opinion, the evident purpose of s105A was to avoid the kind of situation which developed at the office of the Mining Registrar -

in other words, an unseemly rush where there was some attempt to differentiate time by seconds or other units. That is a refrain which is picked up by his Honour Mr Justice Steytler at page 207 of the book where he speaks of there being no practical purpose to establish a time differential.

Now, in my submission, it is apparent that both the learned judges on that occasion are really conceding of the purpose as being the administrative convenience of the person charged with the reception of the applications. Our submission is that that would be a superficial view of a core and fundamental ethic at the heart of the Mining Act, namely, that expedition will be rewarded and priority of some form will be afforded to the first in time. That was a matter addressed, with respect, with greater attention, in our submission, by his Honour Mr Justice Rowland and the passage I would point to there particularly is at page 192 of the book, at line 10.

Now, there his Honour encapsulates the position neatly, in my submission, as to what is the purpose. It is a purpose concerning priority and a broad right as something quite distinct from a matter of administrative convenience. His Honour says:

Although the procedures to obtain rights to mine have altered over the years and that, in general terms, the right to mine now lies in grant rather than possession, one aspect has remained consistent throughout the history of mining in this State, and that is that some form of priority will be given to the person who is first in time to comply with whatever legislative provisions are in force.

TOOHEY J: One could accept that but still have to answer the question, "Well, were applications lodged at the same time or not?" Now, in answering that question, views could well differ. Is it the sort thing that, given the time differential that was involved here, that this Court could usefully add to the jurisprudence that is already the subject of the judgments in the Full Court?

MR HASLUCK: In my submission, the philosophy of the Act clearly is that the first who is in time, as a matter of fact, as determined by an establishment of fact, is the one who obtains a priority. If one places - - -

McHUGH J: That needs some qualification, does it not, because subsection (1) talks about "first complies" and then subsection (3) of 105A assumes that more than one person may first comply with the initial requirement. Now, you may say that means that you may be able to have a ballot when they lodge their applications to the exact one hundredth or one thousandth of a second but where do you draw the line? On your theory of the section, there could be a differentiation between applications even though there was no more than one thousandth of a second between them.

MR HASLUCK: Your Honour, perhaps I can respond in this way by trying to illustrate my position graphically. If one is inviting guests to a party and they all arrive in a cluster on one's doorstep at the moment you open the door to them, one would say, in general terms, they have arrived at the same time because, in that context, for practical purposes, there is no significance in fine differentiations. On the other hand, if one is judging the result of an Olympic sprint, for practical purposes, in that context, fine differentiations are the key to the whole contest. Now, my submission is that if one looks across the purpose of the Mining Act - - -

McHUGH J: Yes, but the problem with your analogy is that in the first case you have to determine who was first. If that was the argument in this case, if there was no subsection (3), there would be a lot going for your argument, indeed, it would probably have to be accepted, but the moment you see subsection (3) talking about "at the same time" then you have introduced another dimension and it is a question as to what does it mean. Does it mean "at the same time" in some practical sense or does it mean "at the same time" the exact same time, hundredths, thousandths, millionths of a second? Now, you have to argue for the latter view.

MR HASLUCK: No, your Honour, my submission is that if it is possible to establish a differentiation as the Warden, in fact, did, and that is an unchallenged finding of fact which the Full Court accepted, then one can accord priority.

McHUGH J: That means that if you can establish a differentiation as to a millionth of a second then that is how the case is to be decided. That does not seem a very practical construction of a statute like this.

MR HASLUCK: What I say to that is there will obviously be circumstances where the evidence simply does not reveal a result or permit a differentiation to be made and in that case then, of course, one would proceed to the ballot. This is not such a case because, in fact, a finding of fact has been made and what I do emphasise, your Honours, is that the fact that there is a provision for a ballot to determine priority underlies the importance of the right in priority. If it was thought, as a matter of administrative convenience, given the Minister will ultimately decide, "Well, this is a difficult case. It's hard to differentiate in fractions of time. Why don't we just send it all forward to the Minister with times noted upon them and it will be up to him?", then that would suggest the purpose was simply the administrative convenience of the Act. But, in fact, the fact that there is a ballot which is there as a mechanism to resolve a difficult case and thus establish what a priority is, underlines that there must be a real and tangible content in this right in priority which is being described. Therefore, to put aside the right in priority too lightly as, on our submission, the Full Court has done would be to disregard the purpose of the Act.

So, in other words, we are endeavouring to persuade the Court that it ought not to be overly influenced by the melodramatic circumstances of what happened at the Mining Registrar's office on the day. The whole concept of time goes back into the earlier phases of the Act with a view to rewarding rigour, expedition, diligence and so forth. It may emerge - there are sometimes at the end point of the whole process some kind of unseemly race, as it has been described, and on some occasions the evidence will not permit a finding to be made, but what is common ground throughout this case is that a finding of a fine gradation has been made and when one comes to the difficulty of the phrase "at the same time" one's construction will be influenced by what is the overriding purpose in the Act. That is really defined by the right in priority.

Your Honours, I endeavoured to use the example of the party, but let us take another case. Let us say that there was some remedial legislation in the field of human rights or native title or something of this kind. There one would look at the Act and say that surely the credo and philosophy of the Act is to give meaningful content to whatever rights are afforded to those who seek relief under it. Therefore, if, in that Act, one came to construe some administrative mechanism of one kind or another, surely, by keeping the purpose of the Act steadily in mind and the question of the human right underlying it uppermost, that is the basis upon which you would resolve any point of interpretation on what essentially is a matter of administration.

In our submission, the Full Court in its decision, by using the rather cursory notion of a practical purpose, has had the effect of overriding what is regarded in the mining industry as a quite palpable right that you will achieve a place in the queue, as it were, that you will achieve a priority, some higher position in the hierarchy, if it is recognised as a matter of fact, not as a matter of luck, that you have obtained a right in priority. In our submission, this is the point that has been too lightly passed over.

I do remind the Court that there are two previous decisions of this Court, namely, Hunter Resources v Melville Case and the previous decision on the facts of this matter also, Hot Holdings, which, in my submission, are entirely consistent with what I say but with which the final outcome, as determined by the majority of the Full Court, throws up an inconsistency because in the case of Hunter Resources v Melville the Court emphasised that there must be a rigour and an exact compliance in regard to, in that case, the case of marking off of a prospecting licence, because it was recognised that this was the first step in the steady progression towards what might ultimately be a title in mining lease. The Court in that case recognised that the time factor must be important because if time was not important it would be all too easy for someone to short-cut some of the compliance steps they had to take; it would be obligatory upon them if the Court, in effect, held that they must take those steps and if rigour was the key to the matter.

Now, likewise in the Hot Holdings' Case, the predecessor to what we have now, the High Court has, in effect, held that if what happens, if the Warden's decision, in this case the determination to have a ballot, has some impact upon the process, that is an impact upon what the High Court described as a discernible - it has a discernible legal effect. It is in the nature of an interference with a right of some kind, although that right was not defined by the High Court previously.

So, once that has been decided, surely it will be inconsistent with that view of the matter expressed by the High Court in both those cases, if the lower court, in this case the Full Court, simply approaches the matter in the fairly cursory way of saying, "For practical purposes, in a rough and ready way, we need not go into fine gradations. All we need do - - -"

KIRBY J: You say it is cursory but the other view is that it is what was implied in Parliament making provision for the sort of problem that has arisen. I do take your point about the Olympic race but this is State legislation in which there is an ambiguous phrase. It is shown by the different constructions that have been offered. You can argue for each. It is the sort of thing that would normally be left to the Full Court. No interpretation is absolutely and unarguably correct. Each has been put forward by judges. It is simply a matter of giving the best interpretation; this is a State law; it should be left to the State court.

MR HASLUCK: In my submission, with great respect, not, your Honour, because the pattern of mining legislation Australia wide in the past tradition which was touched on by Justice Rowland is title by - - -

KIRBY J: I saw that in your written submission but they do seem to have differential provisions. They are not all of a common uniform provision.

MR HASLUCK: There is not exactly a common provision but certainly a thread which is woven through all of them is the importance of the act of possession or the assertion of the claim and that is a matter that goes back to a High Court decision in Kenda v Andrea where the right of possession was held to be first in time. It is a thread which is to be found in much of the legislation and it is a thread which is certainly woven through other provisions of the Mining Act in this State, additional to section 105A, and if this application is permitted to go forward I would certainly trace that in greater detail. The time is against me at the moment.

TOOHEY J: But if it did go forward, Mr Hasluck - I am sorry, had you finished your answer to Justice Kirby?

MR HASLUCK: Well, not quite, your Honour, because the point I really wished to make in answer to that is to say it must not be regarded as confined to this State because there is that - when one looks at the question of what constitutes the route of title, I think that feature will be found as common in all the jurisdictions, that there is nothing quite resembling the Torrens system of title, of title by paramountcy of title as registered. In all the systems, in fact, there is provision for registration of title but that that does not constitute an indefeasible title. That means title lies in grant and you must therefore trace back the validity of every step in the decision-making process leading to the grant and a key factor in that is the matter described as the right in priority.

My fundamental submission is that that reveals a purpose which means that when you come to interpret the phrase "at the same time", one - - -

KIRBY J: Do the other Acts of the other States have an "at the same time" subsection?

MR HASLUCK: I do not think I am in a position to - - -

KIRBY J: Is that not the problem, that this is - - -

MR HASLUCK: There are materials before your Honours in appeal No P57 where provisions from other Acts are there. I do not think I can quite answer your Honour's question on it.

KIRBY J: You are talking there of material at 267 and 270 of this appeal.

MR HASLUCK: But certainly there is provision concerning priority of applications and reference, I think, in the Commonwealth Act to "simultaneous applications". So, what is "simultaneous", what is "at the same time", I do venture is to be found in other pieces of legislation.

TOOHEY J: Would you be contending, if special leave were granted, that in any situation in which it is possible to discern a differential in time, however small, however it might be calculated, that it then follows that one person must be said to have been the first to comply?

MR HASLUCK: I think that is the extension of my proposition, yes.

TOOHEY J: You would be driven to that, would you not, to making that submission?

MR HASLUCK: Yes, because certainly it will be recognised there will be cases where a registrar has not prepared himself or the facts simply are perhaps applications come in a postal bag and they are emptied out on the table. There may just be circumstances where, as a matter of evidence, as a matter of fact, you cannot establish a priority. But in this case it is not an arid debate because I do urge the Court to recall that if the matter does go forward, your Honours will not have to, in my submission, get into any fine analysis of the evidence because all three members of the Full Court accepted the Warden's finding and said that that should stand unchallenged. So, my primary submission is that, with respect, it was a rather cursory and superficial view of the underlying credo and purpose of the Act to simply say, as the two majority members did, "Well, for practical purposes, this must be the case." That is the line of least resistance. What is the practical purpose, as in the example of the race, is determined by how much real content you are prepared to give to something described as the right in priority?

The reason why these people were mustered at the door of the Mining Registrar on the vital occasion is because this is an ethic which has coloured the approach of the mining industry for many, many years. They know they must be expeditious because something of value will turn upon it. The tracing of this expedition should not - it would be looking at the matter through the wrong end of the telescope to simply say that some unseemly rush occurred at a counter because that is the end point of a whole series of steps requiring expedition in regard to marking off in the case of some tenements, in regard to the preparation of the expenditure, details and so forth in regard to an exploration licence, and the Act is clearly aimed at rewarding expedition of that kind.

Your Honours, I do observe that my time has expired.

TOOHEY J: Thank you, Mr Hasluck. Mr McCusker, Mr Myers, we do not wish to hear from you. Mr Myers, you are in this, are you not?

MR MYERS: No, I am not, your Honour. I mentioned that although the list says that we are appearing in this, we are not.

TOOHEY J: You did, yes. We still do not wish to hear from you. Thank you.

The issue raised by this application is the meaning of the expression "at the same time" in section 105A(3) of the Mining Act (WA) as it then stood. This is something on which minds may differ. Notwithstanding what has been said by Mr Hasluck, QC, it does not warrant a grant of special leave to appeal, especially as the language in question no longer governs the position. This is a matter best left to the Supreme Court.

The application is refused.

MR McCUSKER: May it please the Court, I ask for an order for costs.

TOOHEY J: Any reason why costs should not be awarded?

MR HASLUCK: No, I cannot comment.

TOOHEY J: Refused with costs.

AT 1.11 PM THE MATTER WAS CONCLUDED

TOOHEY J: Does the outcome of that application have direct implications for either of the two applications to follow?

MR MYERS: It does not have any effect upon the application in which I appear, your Honours.

TOOHEY J: Mr McCusker?

MR McCUSKER: Your Honour, it reduces the scope of our application. Our application is based on two matters. One of those falls away. That is the question of what is meant by "lodge with the Registrar". That is no longer a live issue. But our application with respect to how many applications go in the ballot is still a live issue.

TOOHEY J: Yes, I understand that. Thank you.

Perhaps you should call the second of the applications.

(Minerichie Investments Pty Ltd & Another v Creasy was called)

TOOHEY J: I know we have the appearances. It is just to make the transcript a little more clear.

MR MYERS: Thank you, your Honours. There is a single question in this application. It is whether an application for an exploration licence complies with the initial requirement under section 105A of the Act where the statement referred to in section 58 is not lodged at the same time as the application. There is no issue of fact involved at all. It is agreed, in the written submissions, that there is no dispute as to fact. This matter was dealt with by one of the judges of the Full Court of the Supreme Court of Western Australia, Mr Justice Steytler and, of course, the Chief Justice agreed with him.

I will take your Honours in a moment to the Act. I would simply wish to refer also to the Warden's decision. This issue was raised by Mr Creasy before the Warden and Mr Creasy contended that until the statement was lodged and a cheque for rent and the fee completed, the applicant had not complied with the initial requirement. The Warden said simply - and if I can just refer your Honours to page 70 of the application book. It does not really stick out unless attention is drawn to it. It is Point Thirty Seven. There were two submissions under Point Thirty Seven, that the application was no good, putting it colloquially, because the fee had not been paid and the statement was not lodged. The Warden simply said:

I do not accept this submission.

The statement is not part of the application -

which is what your Honours are concerned with.

The need to fill in the cheque does not in my view constitute an invalidating flaw.

May I take your Honours to the legislation. It is conveniently set out at pages 209 and 210 of the application book. At the bottom of page 209 section 105A is referred to. If I can go over the page to subsection (4):

In this section a reference to compliance with the initial requirement in relation to an application is a reference -

(a) in the case of an application for an exploration licence -

which is what we are dealing with here -

to lodging that application at the office of the mining registrar.

I refer to those words "lodging that application at the office of the mining registrar". Then we see section 58(1) set out:

An application for an exploration licence -

(a) shall be in the prescribed form;

(b) shall be accompanied by -

such-and-such. Over the page:

(b) shall be accompanied by the amount of the

fee. Over the page, paragraph (d):

shall be lodged with the mining registrar of the mineral field.....wherein the land to which the application relates is situated.

Now, with respect to the judgment of Mr Justice Steytler, his Honour's construction of the provision is simply wrong and the Mining Warden was right. All that needs to be lodged to satisfy the initial requirement is the application.

It may, as your Honour Justice Kirby has pointed out, be simply a matter of construction of a State statute but it is a case in which, in our respectful submission, the decision below was plainly wrong and, furthermore, it is a case which is of general importance in an industry upon which a great deal of the wealth of this State and the country is based and which is of great material and pecuniary importance to the parties.

TOOHEY J: Is this on the footing, Mr Myers, that if the legislation speaks of an application and speaks of it being in the prescribed form and speaks of it being accompanied by a statement, that it follows that the statement is not the application or part of the application?

MR MYERS: Quite so, your Honour, quite so. The words of subsection (4), "compliance with the initial requirement in relation to an application", are very clear. I am taking your Honour back to page 210:

in the case of an application for an exploration licence, to lodging that application at the office of the mining registrar.

When one looks at section 58 one sees:

An application for an exploration licence -

(a) shall be in the prescribed form -

et cetera, et cetera -

(d) shall be lodged with the mining registrar -

All that is necessary to satisfy the initial requirement is to lodge the application with the Mining Registrar.

KIRBY J: Now, where is the passage in Justice Steytler's judgment that you attack?

MR MYERS: It just follows from where we are. Page 211 at line 10, the argument that was put for Mr Creasy is set out and it is suggested that there are two ways in which "the `initial requirement' has not been complied with": there is no statement and there is no fee. Then his Honour says:

So far as the rent and application fee is concerned -

he mentions that, and then at line 23:

I am quite unable to accept that the failure, at once, to complete the amount of the cheques at the time of lodging the applications.....had the consequence that those applications were not lodged "at the same time" as the other applications to which I have referred.

So, the fee was not actually paid at the time. There was a blank cheque handed over. His Honour says, "Well, that doesn't matter. That requirement can be set aside" and then over the page, 212, your Honours, line 13:

However, the failure to provide the accompanying statement required by s58(1)(b), until some days later, gives rise to greater difficulty.

And then he deals with the argument and over at page 213, at the top of the page:

Moreover, as regards the question of construction, it seems to me that there can be no valid application for the purposes of s58(1) of the Act in the absence of the accompanying statement referred to in s58(1)(b).

That, in substance, is his Honour's decision. We say that on the plain words, that is wrong, and that is what the Mining Warden said. The Mining Warden, who is experienced in these things, said the statement is not part of the application.

As well, we say that the decision of the Warden produces a sensible result and the decision for which those who oppose this application contend does not produce a sensible result. First of all, one would have to draw a distinction between parts of section 58(1) which are mandatory in some way, and parts which are not. One would have to say the fact that an application is not accompanied by a statement is fatal but the fact that it is not accompanied by the fee is not fatal, and there is no sense in that.

Furthermore, the statement itself only performs a role when one gets to the hearing by the Mining Warden or, at least, in helping objectors to frame their opposition to the grant at the hearing by the Mining Warden. It is only necessary to have a statement in sufficient time to enable a sensible hearing before the Mining Warden.

KIRBY J: Your contention is that though it is State legislation, this is not really a matter upon which minds can fairly differ.

MR MYERS: In my respectful submission, that is so.

KIRBY J: Given the juxtaposition of the section itself.

MR MYERS: That is so.

KIRBY J: To the statement in the application.

MR MYERS: That is so. As the written submissions point out - and I do not want to repeat them - one would have an anomalous result where the initial requirement for other mining tenements is quite different. In those other mining tenements, a prospecting licence or a mining lease, what is necessary is the marking out of the tenement. Now, there is no statement lodged there at the time of the marking out. The statement comes later.

TOOHEY J: Is there anything in the information required by section 58(1)(b) that would be necessary in order to object to the granting of an exploration in the terms of section 59?

MR MYERS: It would be necessary to have that statement before the Mining Warden makes his decision, your Honour. Nothing that is necessary for an objection to be framed, although it might be useful for an objector, it could even be important, but that does not lead one to the conclusion that the statement has to sensibly be lodged at the same time as the application.

TOOHEY J: Well, it might, depending on when the accompanying statement, on your submission, is required to be lodged.

MR MYERS: It has to be lodged in sufficient time to have a sensible decision or hearing by the Mining Warden, that is all. If there is no statement, the Mining Warden will take that into account and punish the person who has not lodged the statement or an appropriate statement accordingly.

TOOHEY J: What if someone wishes to lodge an objection based upon what one might ordinarily expect to find in paragraph (b) of section 58(1)?

MR MYERS: They will need a statement if they wish to lodge an objection on that basis.

KIRBY J: I suppose, arguably, it is a bit analogous to getting your writ in on time and your statement of claim follows.

MR MYERS: It is, in this respect, too, because the statement can be amended or altered at any time before the Warden's hearing. It is not suggested that the statement is immutable. The application would be. You could not add another little bit of land to your application. The point about the application is that it is a formal evincing of an intention to make the claim and that is all the statute should be construed to require and we say, on the plain words, that is all it does require. This is a case, in our respectful submission, where there is a manifest error below.

KIRBY J: The answer comes back, "So, what?"

MR MYERS: So, what? My clients have lost the opportunity to acquire an interest which they say is worth $88 million and, furthermore, there has been a decision which misconstrues the provisions of the Mining Act 1978 to the disadvantage of all those who would wish to rely upon them.

KIRBY J: That is merely the first leg up into the Court.

MR MYERS: But it is the essential leg up.

KIRBY J: Arguable error, but it is not enough. Necessary, but not sufficient.

MR MYERS: Your Honour, I cannot make the case something that it is not. It is a case about the construction of a State statute, there is no doubt about that, but it is a very important State statute upon which enormous economic and financial consequences depend. We say that the court below has simply got it wrong. Below - there has been a fair bit of litigation about the events of this particular day. Justice Nicholson dealt with this in the first hearing. His reasons are in the application book at page 160 and he took a different view. It is right at the top of the page:

Given the wording of s 58, there is no basis for regarding "the application" as including the accompanying -

documents. Evidently correct. That is the view that we say the court should have come to on the second occasion.

Your Honours, we did refer to some decisions concerning the meaning of the expression "accompanying". There is the Todhunter v The United States of America Case and Winkler v the DPP which are set out in the list of authorities. They are cases that deal with the construction of the extradition treaty and there it is said that the word "accompanying" in its context does not require a physical connection, simply a sufficient temporal connection, given all the circumstances, and a sufficient temporal connection in this case would be before the Mining Warden's hearing the statement must be lodged. Alternatively, it might be in such time as to enable objectors to properly view the statement before the Mining Warden's hearing. Of course, since the statement can always be amended, that may be of little significance.

If your Honours please, they are the submissions.

TOOHEY J: Yes, thank you, Mr Myers. This might be a convenient time to adjourn. The Court will adjourn until 2 pm.

AT 1.26 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.04 PM:

TOOHEY J: Mr Myers, can I just ask you this question: I think before lunch you were focusing on the difference between the application and the statement accompanying the application.

MR MYERS: Yes, your Honour.

TOOHEY J: Is that the real question or is the question one of whether there has been initial compliance?

MR MYERS: The question is whether there has been one of initial compliance and "initial compliance" is defined, in the case of an application for an exploration licence, "to lodging that application at the office of the Mining Registrar" and that is the very expression used in paragraph (d) in reference to the application in contradistinction to the statement.

TOOHEY J: Now, what is the basis of the first of those two propositions, that it refers to the lodging?

MR MYERS: It is page 210, if your Honours look at that, section 105A(4). That is the very definition.

TOOHEY J: But is it a definition? I understand the relevance, I think, of the subsection. It says:

a reference to compliance.....is a reference -

(a) .....to lodging....at the office of the mining registrar -

and then it goes on to deal with the situation in the case of a prospecting licence. But is that truly a definition? Does that remove the obligation to comply with section 58?

MR MYERS: It does not remove the obligation to comply with section 58 but it is the initial compliance and it is the initial compliance that gives you the entitlement to a place in the ballot, if that be what it is.

TOOHEY J: If you look - and I am looking at a print at the moment. It is the - - -

MR MYERS: I have the same one, I think.

TOOHEY J: The same one, so correct me if I am referring to any section that has been amended. Section 58(1a) requires that:

In order to facilitate the operation of section 105A(3) and (4)(a).....those applications shall be made in accordance with a prescribed procedure -

in other words, what I think I am putting to you is whether the question at issue is simply the difference between an application and a statement accompanying an application, if there is such a difference, or whether, for the purposes of section 105A and, in particular, the obligation to hold a ballot, it is necessary that there have been a compliance with section 58, whether you regard the statement as part of the application or as something independent from it.

MR MYERS: Your Honours, one has to distinguish, in my submission, between two things. First of all, getting one's foot in the door by having compliance with the initial requirement and then - - -

TOOHEY J: But that is getting your foot in the ballot door, is it?

MR MYERS: It is getting your foot in the door which will lead to the hearing by the Warden which will lead to the ballot.

TOOHEY J: But the decision to hold a ballot is contingent upon applications having been lodged at the same time.

MR MYERS: I should not say "the ballot". The hearing - if your Honours go to section 59 which is headed "Determination of application for exploration licence":

A person who wishes to object to the granting of an.....licence shall lodge.....a notice of objection -

and so on, and then subsection (2):

Where no notice of objection is lodged within the prescribed time the mining registrar shall.....forward to the Minister a report which recommends the grant or refusal of the exploration licence.....

(3) The mining registrar shall -

(a) recommend the grant of the exploration licence -

and so on. Subsection (4):

Where a notice of objection -

(a) is lodged within the prescribed time.....

the warden shall hear the application for the exploration licence in open court on a day appointed by the warden - - -

TOOHEY J: Yes, I do not think I put my concern very clearly to you. If you go to section 105A(1), it provides:

where more than one application is received for a mining tenement.....the applicant who first complies with the initial requirement in relation to his application has.....the right in priority -

Now, in order to comply with the initial requirement, do you not have to comply with section 58?

MR MYERS: No. All you have to do is to lodge the application at the office of the Mining Registrar.

TOOHEY J: Why do you say that?

MR MYERS: Because that is what subsection (4) says:

In this section a reference to compliance with the initial requirement in relation to an application is..... -

(a) in the case of an application for an exploration licence, to lodging that application at the office of the mining registrar;

TOOHEY J: But that may be no more than identifying where the application is to be lodged. Your argument assumes, does it not, that section 105A(4) is somehow exhaustively definitive of compliance?

MR MYERS: No, it does not do that, your Honour. The argument that I am putting is that all one has to do to comply with the initial requirement is to lodge the application with the Mining Registrar. Now, there may be all sorts of other things that are done and have to be done before there is a hearing or in connection with a hearing or in connection with the application and if you do not do them you might get an adverse recommendation.

You see, the operation of the legislation is conditioned upon a person throwing his hat into the ring, evincing an intention to apply, evincing an intention to be a person who may be recommended to the Minister.

TOOHEY J: Yes, I understand that argument if you carry it right down the track, as it were, to the determination of objections and the like but if you focus on the ballot requirement and, after all, that is, in a sense, what 105A is talking about, is it not, that is, 105A(1), read with 105A(3)?

MR MYERS: Yes, your Honour.

TOOHEY J: Why is it not obligatory, in order to get into the ballot, that the applicant has complied with 58 and not merely lodged an application?

MR MYERS: My answer must be because the legislation does not say so, and that makes sense because the initial requirement in relation to a mining lease, for example, is pegging the ground and no pieces of paper have to be put forward - have to be lodged. There is an initial requirement which gets you into the ballot; gets your hat in the ring; gets the marble in the ballot.

TOOHEY J: And you say that is the lodging of an application accompanied or unaccompanied by a statement?

MR MYERS: Unaccompanied, and then once you get to the hearing which results in the recommendation to the Minister, there will be all sorts of debate about whether one application is better than the other because of what the statement says.

TOOHEY J: I understand that, but I am not concerned about so far down the track, I am trying to hold you back to the decision to have a ballot.

MR MYERS: Yes.

McHUGH J: Can I put this to you, Mr Myers, the force of your argument really depends upon reading 105A before you read 58. If you read 58 as being the primary legislation, it requires an application to be in the prescribed form and to comply with certain things, otherwise you have not made a valid application. Then 105A assumes that there has been a valid application and it says that the initial requirement is a reference to the lodging of that application at the office of the Mining Registrar but if there has not been a valid application in the first place then you do not comply with 105A. You never get to the starting gates, so to speak.

MR MYERS: That is a way that it would be open to look at it, I readily concede, although we would say it does not sit easily with the language that is chosen in 105A which mirrors - which follows exactly the language of 58(1)(d). It is not necessary, for the purposes of getting one's hat into the ring, that one should have a fully-fledged application, as it were, with all the statements attached because the statements themselves are things that can be elaborated upon, they can be changed. They will be a matter of debate or at least consideration for a Mining Warden and then if one considers what the position is with other sorts of mining tenements, where one simply pegs the ground, why is it necessary to satisfy the initial requirement for an exploration licence that one should have a statement attached where, in other cases, say, a mining lease, all one has to do is peg the ground?

McHUGH J: Yes, but I think that may overlook the importance of 58 in the general scheme of the Act. In other words, you have not complied with the provisions of the Act and you have not a valid application unless you have complied with 58(1) and the reference "to lodging that application" in 105A(4) is really a reference to an application that has been lodged in accordance with 58(1). Now, by inverting the chronology of the sections and seizing on the parity between (4) and (d) you get quite a strong literal argument. I think anybody would have to concede that.

MR MYERS: It is a literal argument that the expert in the mining law, the Warden, accepted - he dealt with it in a sentence.

KIRBY J: You keep saying that, but wardens do occasionally make mistakes.

MR MYERS: Of course they do, but one is here talking about a context of the statute. If your Honours would, for example, turn to section 74, I would like to deal with the importance of the paperwork, as it were, in connection with, say, a mining lease where the initial requirement is simply to peg the ground. If you look at section 74, it provides:

An application for a mining lease -

(a) shall be in the prescribed form;

(b) shall be accompanied by the amount of the prescribed rent.....

(c).....the prescribed application fee;

(d) shall be lodged at the office of the mining registrar.

TOOHEY J: Mr Myers, some of these matters might be more conveniently left to reply. I have really taken you into this particular question and no doubt it can be picked up if necessary and dealt with later.

KIRBY J: It is such an interesting statute.

TOOHEY J: Yes, Mr McCusker.

MR McCUSKER: Your Honours, taking up that last point. It is our submission that, indeed, my learned friend has taken the approach of simply isolating subsection (4) of section 105A from its context. Section 58 is mandatory in its terms. Contrary to what my learned friend said as to there being a distinction which would have to be drawn awkwardly between the mandatory requirements in (b) and what he suggested would be the non-mandatory requirement in (c), it is our submission that they are all mandatory, that is, that the application must be in the prescribed form, must be accompanied by the work statement, I will call it, must - - -

KIRBY J: Why does that work in with the policy of the Act, could you explain that?

MR McCUSKER: It works in well, your Honour, for this reason that if your Honour refers to section 57, which is conveniently set out at page 131 of the application book, subsection (3) provides that:

The warden shall not recommend the grant of an exploration licence -

and that is the prerequisite to it going forward to the Minister with a recommendation -

unless he is satisfied that the applicant is able to effectively explore the land in respect of which the application has been made.

Now, in order to satisfy himself of that he must have the statement which is referred to in section 58(1)(b), a statement which sets out "the proposed method of exploration", "details of the programme", "the estimated amount of money proposed to be expended" and "the technical and financial resources available to the applicant." So, nothing can be done by the Warden and, importantly, the recommendation which he must make, unless and until he has that statement. On my learned friend's argument - - -

KIRBY J: This Warden did not seem to think so.

MR McCUSKER: He had it, of course, at the time that he heard the matter. Your Honour is right, he did not seem to think that he needed it for there to be a valid application on the day of the lodgment of the application or a valid lodgment to the application. It is our submission that a clearer way of understanding the problem is to look at one single application, not a race between competing applications. But my learned friend's argument would go this way if he is right, that if an application can be validly lodged without any of the matters that are referred to in section 58(1)(b), (c), (d) and (e), it would mean that someone who saw an opportunity could simply lodge the application without all of those things; not only the statement but also the fee and the rent. There is a fairly substantial rent that has to be paid as well. So, he could get around those requirements and effectively freeze the land because if he is first in with simply an application and no more, anyone else who came along interested in exploring that land would effectively be shut out because that application would have a right in priority under section 105A(1), being first in time. That could continue.

My learned friend says it is only necessary to lodge the statement at a reasonable time before the Warden considers the matter. The practicalities of that really are mind-boggling. What does the Warden do? The Warden has, at some stage, to make a decision. Does he say, "I require you to lodge the statement now because I am about to make a decision"? On my learned friend's approach he may do that but there is no provision in the Act that entitles him to demand that unless it is under section 58 in the first place.

KIRBY J: Any way, all you had to establish is that this is a strongly arguably contrary point of view, to knock out Mr Myers' proposition that this is just a plain error or law that is heavily burdensome on his clients.

MR McCUSKER: That is so, your Honour. Your Honour raised with me the question of how does it fit into the scheme. There is a further problem, that regulation 67 provides for - - -

TOOHEY J: Is that in the material?

MR McCUSKER: That is in our material at page 4, your Honour. That is the book of statutory material which we have filed on behalf of this applicant in P58 of 1996. There is provision for "Objection against application":

Within 30 days of the date of application for a mining tenement -

which presumably means the date of lodging with the Registrar -

or such further period as the warden considers reasonable any person may.....lodge.....an objection.

Now, if it is correct that an application alone, without complying with section 58 requirements, is sufficient to be the application, 30 days from that date - admittedly, there is discretion to extend - is the time limited for lodging an objection. So an objector may be in a position where, because there is no statement, no fee, nothing, he simply lodges, as it were, an objection on the blind and that seems to be an odd result also.

TOOHEY J: It might be an odd result but I am not sure that it advances your case very far. The question surely is the operation of section 105A and the situation which arises where applications are lodged at the same time and the question of determining priority arises. Now, then section 105A(1) picks this particular language of compliance with the Act and then that seems to me to lead you back to section 58 to ask, "What is compliance with the Act mean? Is it simply lodging an application?" In a non-multiple application situation, it may not give rise to any particular issue. The application is lodged and an objector might lodge a blanket form of objection; it gets all sorted out, at least as a form of pleading, before it gets to the Warden.

MR McCUSKER: Yes, that is so, but section 58 - if one starts with section 58 which lays down in mandatory terms what is required to be done at the time of a lodgment of an application and then one goes to subsection (4) of section 105A, it is our submission that on a proper construction that must sensibly mean, in order to give it both a proper construction in its terms and also a sensible and practical outcome, that it is a reference - a reference to compliance with initial requirement is a reference to lodging the application with the Mining Registrar which refers one back to section 58 to see what that entails. It is not simply, in our submission, isolated. Lodging the application with the Mining Registrar is required to be in terms of section 58 because that is what must happen. There must be lodged with the application the work statement and the fee and the rental that is stipulated by section 58.

Indeed, these are part and parcel of the same proposition: (b), (c), (d) and (e), of prescribed rent for the first year which is a substantial sum, accompanied by the prescribed application fee. On my learned friend's proposition, an application would be effectively and validly lodged on a day when none of those things occurred and the fee might not be paid, indeed, until after the Warden has made up his mind as to whether to recommend or not. That must follow from the argument that is required under section 105A(4) is that there have been lodged in isolation and without complying with section 58 the application as referred to.

TOOHEY J: It does not or may not meet Mr Myers' point which is that, as I understand it, for the purposes of 105A(4) you have, in effect, a definition of compliance with the initial requirement and that involves no more than the lodging of an application.

MR McCUSKER: Your Honour, the contrary view to that which we would respectfully submit is the preferred view clearly, both on the language and the practical outcome, is that it is referring back to section 58 and the requirement of section 58. In other words, it is not a definition, it is simply, interestingly, a reference. So that what the reference is is a reference to a lodgment in accordance with section 58 which means a compliance with the mandatory provisions of section 58.

McHUGH J: Your point is that there has just been no application at all.

MR McCUSKER: There has been no application until - and this takes up the point that my learned friend sought to make of the Portman and other cases concerning extradition: unless and until the remainder of the matters that are required by section 58 have been dealt with, until then, it is really in suspense. There is nothing wrong as a practicality with the Registrar saying to an applicant, "I will take your application but you still haven't lodged it. I'll wait until you provide me with a statement." But it is only on the date of provision of the statement and the fee that it can truly be said that there has been a compliance with the initial requirement. To do otherwise would mean - - -

TOOHEY J: But you do not have to go that far, on your argument or on that argument, just to say there has been no application. The question is whether there has been compliance with the Act.

MR McCUSKER: Yes, your Honour, and compliance with the Act on that day.

TOOHEY J: It may be that they amount to the same thing. Mr Myers would say yes. The other view is that they do not.

MR McCUSKER: Yes. It is compliance on that particular day. Where there is no competition the matter is of perhaps only academic concern but where there is competition, what it means if Mr Myers is right is that an applicant who does all that is required by section 58, including preparing a work programme, a statement of financial resources and so forth, is put at a disadvantage because that obviously is going to take some time as well as some money as against an applicant who rushes straight in, puts the application on the counter and says, "In due course, when I get round to it, I will let you have the work statement and the fee and the rent." Although it is a possible outcome, it would hardly seem to be what a sensible legislature would have intended.

Where it says "must", our submission is it must mean just that. Furthermore, your Honours, although my learned friend suggested that there might be some broader application of this issue, it is our submission that none has been pointed to. There is no legislation in other States or elsewhere that has been pointed to which shows that this is on any more import than in the context of Western Australia and by that I do not mean to, in any way, downgrade the Western Australian position or, indeed, the importance of Western Australia Mining Act, this is not a case which raises an issue of general importance either in terms of construction or in terms of its application to other Mining Acts in other States.

My learned friend, incidentally, raised the question of value and named some very substantial amount. If that were to be taken as some assistance in considering special leave, our only comment is that there is no evidence before the Court as to the value and my instructions, and they are worth no more than Mr Myers' perhaps, is the value ranges between minus $5 million, being the cost of actually exploring it and perhaps $150-200 million, depending upon what the exploration produces.

The major problem with the proposition raised by my learned friend, in our submission, is that it leads to a very unfair and, we say, apparently unintended result that non-compliance with section 58 does not put an applicant at a disadvantage, indeed, may put the applicant at an advantage and it also means that there has to be read into the section 105A(4) or section 58 an implied provision in the statute that lodgment of the work statement, as it is called, 58(1)(b) statement, and the fee can be made within a reasonable time after lodgment of the application and one has still complied with the initial requirement.

It is our submission that the reasons that were expressed by Justice Steytler at page 213, and with whom Chief Justice Malcolm agreed, are sound views. They are simply basing them, perhaps, on no more than the clear mandatory requirements of section 58 but it goes beyond that. It is a question of the practical effect of a counter view. In this case, these applications, as my learned friend's submissions show, one had the work statement lodged four days after the application and one six days and it is nevertheless contended that those applications both complied with the initial requirement upon the same date as applications which were lodged in compliance with section 58. I do not think there is anything further I can usefully submit to your Honours.

TOOHEY J: Yes, thank you, Mr McCusker. Mr Myers, in reply.

MR MYERS: The central difficulty with my friend's argument is that section 105A(4), when it refers to "the initial requirement in relation to an exploration licence" uses the words of subparagraph (d) and not the words, for example, "and complies with section 58", and if he were right, the words that should be found in section 105A(4) would be that "the initial requirement is complying with section 58" and not simply doing that which is described in paragraph (d).

Secondly, the issue is not whether the requirements of section 58 have to be satisfied or not. One acknowledges they have to be satisfied. Of course they have to be satisfied but the question is whether you get in a ballot notwithstanding that they have not been satisfied.

Finally, he says that the result that he contends for is a sensible result. In our respectful submission, it is not a sensible result. It involves a distinction, if one accepts the reasoning of the court below, between the paragraphs that require fees to be paid and the paragraph that requires the statement to accompany it, and there is no basis of construction that you can make that distinction.

McHUGH J: That is not quite what they said in the court below, did they? They said that a fee was lodged at the same time, it was just a question of filling - - -

MR MYERS: There was a cheque that was not made out.

McHUGH J: Was not made out, so he said it is still as the same time.

MR MYERS: Secondly, it does not encourage proper compliance with the requirement of a statement to construe the legislation the way my friend does. What it encourages is colourable statements. You dash off something that amounts to a statement and then you have your hat in the ring and you can afterwards fix it up. It makes a distinction between prospecting licences and mining licences, on the one hand, where the initial requirement is just tapping something into the ground, and exploration licences for which there is no sensible explanation offered and my friend did not even attempt to offer such an explanation. If the Court pleases.

TOOHEY J: The question here is whether, for the purposes of section 105A of the Mining Act (WA), an application without an accompanying statement has complied with the initial requirement in relation to the application. This involves consideration of section 58(1) of the Act but not simply whether or not the statement is part of the application. Nor does section 105A determine that question. The decision of the Full Court was one fairly open to it and the matter does not therefore warrant a grant of special leave to appeal.

Accordingly special leave to appeal is refused.

MR McCUSKER: Your Honours, I ask for an order for costs.

TOOHEY J: Anything to say about that, Mr Myers?

MR MYERS: No, your Honour.

TOOHEY J: The application is refused with costs.

AT 2.37 PM THE MATTER WAS CONCLUDED

TOOHEY J: Call the next matter, please, just for the purposes of the transcript. Yes, Mr McCusker.

(Creasy v Hot Holdings Pty Ltd & Ors was called)

MR McCUSKER: If it please your Honours, this application gives rise to a question of the proper construction also of a provision of the Mining Act 1978 . In this case, the applicant lodged, himself, two applications on the day on which all this occurred and there were three other - he lodged three and there were two other applications lodged on his behalf by two other persons. So, there were five - - -

TOOHEY J: When you say it involves the construction of the Act, what particular part of the Act is involved?

MR McCUSKER: Section 105A(3) which provides - your Honours, we have provided the Court with a set of statutory materials which includes, on orange paper, some amendments to the Mining Act of Western Australia to which I will take your Honours in due course.

TOOHEY J: But your argument is, as I gather, that if you put in a number of applications then that gives you that number of chances in the lottery?

MR McCUSKER: Five marbles in the barrel, yes, your Honour.

TOOHEY J: It is not a very attractive argument, is it?

MR McCUSKER: Well, can I take your Honours to reasons why it is more attractive than it might at first blush appear because we appreciate that one of the members of the court below took the view that this was simply unfair and gave an applicant who did that an unfair advantage? It is our submission, first, that it is clear that there is nothing to prevent an applicant from lodging more than one application.

KIRBY J: The lodging of it is, therefore, that a thousand applications can come in and that gives a party a thousand chances.

McHUGH J: Yes, and once you succeeded on the "at the same time time" argument, that is the inevitable result. There would be no reason why somebody could not bring along 5,000 applications and bang them down at the same time.

MR McCUSKER: We accept all that, your Honour, we do.

KIRBY J: And then the other side would have their 1,000 applications.

MR McCUSKER: Can I take your Honours to a provision which both ameliorates that possibility and at the same time supports our contention as to what the proper construction is. That is an amending provision which - - -

McHUGH J: But how can we look at that?

MR McCUSKER: Your Honour, for this reason, that as Justice Dawson said in Hunter v Melville, referring - if I could take your Honours to the case - it is tab No 2 in the book of the Hot Holdings materials.

KIRBY J: What is the principle?

MR McCUSKER: The principle is that - and it is referred to, your Honours, at page 254 of the Hunter Resources v Melville Case. It is towards the foot of the page where his Honour referred to what Justice Dixon said in Grain Elevators Board v Dunmunkle Corporation, expressing:

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.

The amending Act here which appears at page 4C, section 105A provides, under subsection (5) - - -

TOOHEY J: I am sorry, where are we finding this, Mr McCusker?

MR McCUSKER: In this book of materials, your Honour, in the orange - - -

TOOHEY J: That is the statutory material?

MR McCUSKER: Statutory materials, yes. The book of statutory material, a fairly slim one, filed on behalf of this applicant, and at page 4C, subsection (5), the new provision inserted by Act No 58 of 1994:

If the warden is satisfied that 2 or more applications for a mining tenement have been lodged by or on behalf of the same party for the purpose of affecting the result of a ballot to be conducted under subsection (3), the warden may exclude all but one of those applications from the ballot.

Now, two important things to note about that provision, or three really: the first is that it presupposes that there may be more than one application by the same applicant put in the ballot. The bar to that occurring, and the only bar which is discretionary, if the Warden is satisfied that two or more applications have been lodged for the purpose "by or on behalf of the same party for the purpose of affecting the result of a ballot" which would not necessarily follow because the provisions of section 58 to which we have referred a little earlier which require a work statement to be lodged with the application for an EL are such that various possibilities for an exploration programme may be set out with various financial consequences.

So, it is clearly open to an applicant to lodge more than one application in respect of the same land and to lodge with each application a separate and different work statement which provides - for example, it may be for a quite different method of exploration and therefore a quite different amount of expenditure on the particular land. At the end of the day all of those applications will go forward to the Minister, notwithstanding that only one may be recommended for approval by the Warden, because the Minister at the end of the day has to make a decision as to which of the various applications that come before him is the one which he will approve.

It is open, as I say, to an applicant - it always has been open to an applicant to lodge more than one application. In this case, the evidence was - there is no dispute about this - the applicant here, Creasy, had five applications lodged by or on his behalf, all with the requisite fee which is a substantial fee and all fees being non-refundable, together with the rent which is refundable in respect of any application ultimately refused.

Now, all those fees were accepted and all those applications accepted and there is no question about the right of an applicant to lodge multiple applications. The concern that your Honour Justice McHugh expressed that you might have 1,000 applications, which are aimed at getting all of them in the ballot, and for the purpose of effecting the outcome of a ballot, may well have been so and we say, was so under the previous legislation.

TOOHEY J: Are you drawing a distinction, Mr McCusker, between applications that are identical and applications that have some variation?

MR McCUSKER: What we say, your Honour, is that under the new provision - - -

TOOHEY J: No, no, under the old provisions.

MR McCUSKER: Under the old provision, no distinction is drawn.

TOOHEY J: So, you could put in 500 applications in identical form.

MR McCUSKER: You could.

TOOHEY J: Why should not the Warden say, "Well, I've had an application, these are just copies, duplicates."?

MR McCUSKER: He receives each application with a fee and - - -

KIRBY J: It hardly seems like what Parliament would provide. It really does not seem sensible or rational and one imputes rationality to Parliament.

McHUGH J: And it hardly seems like a special leave point when the legislation has been changed. We have regulation 18A, we have a new section 105A with a new exclusionary provision.

MR McCUSKER: Could I answer that, your Honour?

KIRBY J: It is a merry interpretation you put upon the section.

MR McCUSKER: The provision that has brought in the change, section 105A(5), is a change which still does not take away the essential issue. The essential issue remains because it is still open to an applicant to lodge multiple applications. The only question then, when he - - -

McHUGH J: It is not open to him because at the moment the Full Court has said he cannot, so that is the - - -

MR McCUSKER: No, the Court of Appeal has said not that he cannot but that if he does, only one will go in the ballot, because it is unfair. Now, our submission is that that is not a reasonable approach to the construction of this provision.

KIRBY J: The reasoning may be subject to criticism but what the "unfair" was meaning to say, I think, was that it is such an artificial construction that it would not be imputed to Parliament.

MR McCUSKER: Nevertheless, your Honour, the Parliament, by enacting 105A(5) has recognised that there is still scope for multiple applications to go into the ballot because it says - in effect, 105A(5) is saying the only reason why multiple applications should not go in a ballot will be if the Warden is satisfied that the multiplicity is for the purpose of affecting the outcome of the ballot. Then, even then, the Warden has a discretion as to whether or not he allows more than one to go into the ballot. So, that is a recognition that the law is and was that multiple applications may go in the ballot and that there may be multiple applications. So that the effect, in our submission, of section 105A(5), the new provision, is that it gives an indication, it gives a guidance as to what Parliament intended both then and now.

TOOHEY J: Do you mean it was a deliberate attempt to meet the judgment of the Full Court?

MR McCUSKER: Yes, your Honour, I think it probably was, although there is no extrinsic material that we can refer to.

TOOHEY J: No, but if that was the intention, one would expect not necessarily a reference to the decision but some pretty clear language to show that the decision of the Full Court was being overcome.

MR McCUSKER: In any event, your Honour, that is perhaps a diversion, with respect. We say that as a matter of proper statutory construction, having regard to what Sir Owen Dixon has said in relation to amending legislation, subsection (5) would be unnecessary if it were not the case that multiple applications may be made and may go in a ballot. Subsection (5) has been inserted not to stop that but to limit it so that where the Warden considers or is satisfied that the multiplicity is for the purpose of affecting the outcome he may, at his discretion, refused to let more than one go in the ballot.

Now, there is nothing unfair or untoward about that because any applicant who makes more than one application, first, may be doing so because he is putting in various alternative work programmes and financial programmes and, second, he is paying good money which he does not get back for each application that he makes because he pays a fee.

KIRBY J: A small sanction in this area.

MR McCUSKER: $800 a time.

TOOHEY J: Were the applications here in identical form?

MR McCUSKER: I am not certain of that, your Honour, but it does not make any real difference to the issue that is before the Court.

TOOHEY J: Well, it might; it might. It may be that Parliament had in mind, in that subsection (5) that has been introduced, that there could be applications which might be understood as similar applications but, in fact, had variations between them and, in those circumstances, maybe the subsection would have no operation, but where they were simply identical then the Warden could exclude them.

MR McCUSKER: One could envisage a situation where there were multiple applications; the Warden looked at them and said, "They're identical and prima facie therefore" - because he has to have a hearing on this - "I will treat them as being lodged for the purpose of affecting the result of the ballot." He may hear from an applicant who gives some good reason why they should not be excluded. He has a discretion. So, there is and always has been the ability of an applicant to lodge more than one application. This was accepted, of course, by the Warden. The only question is should they or should they not go in the ballot, and Parliament has accepted that they still can and always could, but there is a limit now imposed by section 105A(5).

There is nothing in the section, in our submission, which points clearly to it being the intention of Parliament - that is the section as it stood, section 105A - that there should only be one person, one applicant, go in the ballot as distinct from every application. Although 1,000 applications are theoretically open on that scenario, that really is not to the point, in our respectful submission. Parliament has accepted that that is open. The Warden accepted and the Registrar accepted that it was open to lodge multiple applications and it is our respectful submission that the Warden, in refusing to allow more than one go in the ballot - and the question arises, which one, because if there are various work programmes - I am looking here at a hypothetical situation - how was the Warden going to exclude a particular application from the ballot? It may be the worst of the various work programmes that have been proposed and in that way the applicant is disadvantaged.

So, there are strong reasons, in our submission, for construing section 105A(3) as permitting more than one application from an applicant to go into the ballot, particularly since Parliament has recognised by its amending legislation that that was open and still is, subject to the Warden's discretion to exclude.

Your Honours, we have put some further material in the outline before the Court. They are essentially - they are the prime thrusts of our submissions, coupled with the fact that this is a matter which is not unique to Western Australian mining law. We have referred in the outline to other provisions in other States where there is provision for a ballot and the matter is not, in those other States, beyond any doubt either. In our outline at page 269 of the application book we have referred to the provisions of the New South Wales Mining Act, we have referred to the Commonwealth Offshore Minerals Act which contains a provision which raises the same question, that is "application" or "applicant", which is it to be if there is no exclusion in any of the statutory provisions of more than one application. New South Wales, Queensland and Tasmanian legislation raise similar issues.

So, this is not, as it were, a parochial issue confined to Western Australian mining law and in Western Australia itself it is an ongoing question because it is only where the Warden is satisfied, as I say, that the applications have been lodged multiply for the purpose of affecting the outcome that the Warden may exclude. May it please your Honours, they are our submissions.

TOOHEY J: Yes, thank you, Mr McCusker. Mr Hasluck, we need not hear from you.

This application concerns the construction of the Mining Act (WA), in particular the ballot entitlement of an applicant who has lodged more than one application. There is no sufficient reason to doubt the correctness of the decision reached by the Full Court.

Accordingly, the application is refused.

MR HASLUCK: On behalf of the respondent, I would apply for costs, your Honour.

TOOHEY J: No answer to that? That application is also refused with costs.

AT 2.55 PM THE MATTER WAS CONCLUDED