(2003) 22 ARELJ Western Australia 135

The aim of the significant producer provisions, when introduced in March 1998, was to ensure that significant producers did not engage in anti-competitive conduct which creates disincentives for gas retailers to seek alternative sources of gas supply. The ESC must consider various factors in its Review, including:

·

· ·

whether other legislation such as the competition provisions of the Trade Practices Act 1974 (Cth), the Gas Pipelines Access (Victoria) Act 1998 (Vic) which incorporates the National Third Party Access Code for Natural Gas Pipeline Systems into Victorian law and the Gas Safety Act 1997 (Vic) are sufficient to engender competition in the gas market; the effect of full retail contestability and dual fuel retailing on the market; and the development of new gas infrastructure such as the Interconnect Pipeline connecting the Victorian and NSW gas markets, the Eastern Gas Pipeline and the Tasmanian Gas Pipeline linking gas production at Longford to NSW and Tasmania respectively, underground storage and the development of alternative gas fields both onshore and offshore.

The main question to be determined by the ESC in its Review is whether these factors, taken together, are sufficient to ensure effective competition in Victoria's wholesale gas market, or whether despite these factors, there is still a need to retain the significant producer provisions. The Review will also examine the practical effect of the significant producer provisions on market conditions since their introduction and whether there are any alternative regulatory options that might more effectively address the particular market failure the provisions were initially designed to guard against.

WESTERN AUSTRALIA EXEMPTION APPLICATION ­ POWER OF WARDEN TO CONSIDER FURTHER APPLICATION* Johnsons Well Mining NL & Ors v Angelopoulos [2002] WAMW 29 (Warden's Court, Perth Calder SM) Exemption application ­ Refusal of application ­ Right to make further application ­ Power of Warden to consider further application Facts Angelopoulos lodged plaints for forfeiture (the "Plaints") in respect of a mining lease and three exploration licenses (the "Tenements") for the reporting year ending variously on 14 November 2000, 1 June 2001 and 29 June 2001 (the "Reporting Year"). Johnsons Well, the registered holder of the Tenements, applied for an exemption from expenditure conditions in respect of the Tenements for the Reporting Year (the "First Exemption Applications"). The First Exemption Applications were refused on 6 July 2001 (in respect of the mining lease) and 6 February 2002 (in respect of the exploration licenses).

* Robert Edel and Alex Jones, Gadens Lawyers.


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ACM assumed responsibility for management of the Tenements from 1 January 2002, pending negotiation of a joint venture/acquisition agreement with Johnsons Well. As a result of the negotiations, ACM subsequently acquired an 80% interest in the Tenements. On 19 June 2002, ACM lodged new applications for exemption in respect of the Tenements for the Reporting Year (the "Second Exemption Applications"). The Second Exemption Applications sought to rely upon new grounds which were not raised in the First Exemption Applications. The Second Exemption Applications were accompanied by an application for an extension of time, pursuant to reg 104, in which to lodge the Second Exemption Applications (the "Extension of Time Application"). In view of the period of time prescribed by reg 54(1)(a), an extension of time ranging from 328 days to 467 days was required in respect of the Tenements. The Extension of Time Application was considered by the Warden. The Plaints were still pending and Angelopolous was given an opportunity to be heard in relation to the Extension of Time Application. Submissions On behalf of Angelopoulos it was submitted that:

1.

An extension of time should not be granted to allow the consideration of an exemption application because:

(a)

(b)

The Mining Act did not authorise the tenement holder to make, allow the Warden to consider or empower the Minister to determine a further exemption application after the refusal of an initial application. Upon the refusal of the First Exemption Application, the Minister and the Warden were functus officio in relation to the grant of an exemption in respect of the Tenements for the Reporting Year.

2.

In any event, an extension of time should not be granted because there was not "reasonable cause" for the lengthy extension of time sought. In particular:

(a) (b)

ACM had not made any attempt to make submissions to the Minister prior to the determination of the First Exemption Applications. ACM had not made the Second Exemption Applications as soon as the First Exemption Applications were refused.

On behalf of ACM it was submitted that:

1.

2.

3.

4.

There is a presumption, pursuant to s 48 of the Interpretation Act 1994 (WA), that the powers and duties of the Warden and Minister may be exercised from time to time as occasion requires. There is nothing in the Mining Act 1978 (WA) which expressly precludes a tenement holder from making, the Warden from considering or the Minister from determining a further exemption application after the refusal of an initial application. On the proper construction of ss 102(1) and 102(5) of the Mining Act 1978, the determination of an exemption application did not finally determine the right of the tenement holder to the grant of an exemption; it merely determined the fate of that particular application. ACM would suffer prejudice if the extension of time was not granted because ACM would lose the opportunity to rely upon good grounds for the grant of an exemption from expenditure and would consequently suffer an increased risk of forfeiting the tenement.


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Held 1.

2.

3.

The determination of the First Exemption Application did not finally determine the right of the tenement holder to the grant of an exemption; it merely determined the fate of that particular application. There was nothing in the Mining Act 1978 (WA) to prevent ACM from lodging the Second Exemption Application after the refusal of the First Exemption Application. There was no room for the application of principles relating to functus officio or abuse of process because the Second Exemption Application relied upon different grounds and raised different issues to the First Exemption Application. In this case, there was not `reasonable cause' for an extension of time, pursuant to reg 104, because:

(a) (b)

The large extension of time was required and ACM had contributed to this by its own inaction and lack of due diligence. The refusal of the extension was of limited prejudice to ACM because there was nothing to stop ACM raising the same material relied upon in the Second Exemption Application in defence of the Plaint.

REQUIREMENT OF SIGNATURE ON PLAINT* Exmin Pty Ltd v Australian Gold Resources Limited ([2002] WAMW 29 (Warden's Court, Perth, Calder SM)) Plaint for forfeiture ­ Strike-out ­ Non-compliance with Regulation 122(1) ­ Requirement of signature on Plaint Facts The Plaintiff lodged plaints seeking forfeiture of three mining leases for non-compliance with expenditure conditions. The plaints were purportedly signed by the donee of a power of attorney from the Plaintiff. The donee of the power of attorney was neither a solicitor nor a director of the Plaintiff. The Defendant applied to strike out the plaints for non-compliance with reg 122(1) of the Mining Regulations 1981 (WA). Submissions On behalf of the Defendant it was submitted that:

1. 2.

Pursuant to reg 122(1), a plaint cannot be signed by a non-solicitor agent of the Plaintiff. As a general rule, a statutory requirement of signature is satisfied by the signature of an authorised agent, but in this case, the presumption is excluded by:

(a) (b)

(c)

the language of reg 122(1), in particular, the express reference to "solicitors" in reg 122(1) which excludes, by implication, non-solicitor agents; the language of the Mining Act 1978 (WA) as a whole, in particular, reg 122(1) can be contrasted with s 102 of the Mining Act 1978 (WA) which expressly authorises "agents"; the policy justification for excluding non-solicitor agents from signing plaints:

(i)

Regulation 122(1) is a statutory embodiment of the general rule of practice at common law that a party must personally represent itself or be represented by a solicitor.

* Alex Jones and Robert Edel, Gadens Lawyers.