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The second appeal Boral then appealed to the Supreme Court of South Australia. In Boral Resources (SA) Ltd v Matthews4 Doyle CJ held that `[w]hen considering the gravity of the matter as a whole, it is relevant to bear in mind that there was no excuse for the failure to comply with the Regulations'.5 Doyle CJ concluded that the Warden `rightly found that the Regulations were breached in a material respect' and that `the breach was not a trifling one'.6 Both Bleby and White JJ agreed with Doyle CJ in dismissing the appeal. Conclusion The decision in Boral highlights the importance of complying strictly with any pegging requirements. The consequences of a failure to comply, where compliance is completely possible, are dire indeed.

WESTERN AUSTRALIA REFUSAL TO GRANT MISCELLANEOUS LICENCE* BHP Billiton Minerals Pty Ltd & Ors v Westover Holdings Pty Ltd [2006] WAMW 4 (Perth Wardens Court, Warden Calder, 24 March 2006) Application for Miscellaneous Licence ­ Delegation by Governor to Departmental Officer of power to prescribe purposes for which Miscellaneous Licences can be granted ­ Warden of opinion that delegation invalid ­ Refusal to grant Miscellaneous Licence Background The decision concerned the determination of an application for a Miscellaneous Licence by BHP Minerals Pty Ltd, Mitsui Iron Ore Corporation Pty Ltd and Itochu Minerals and Energy of Australia Pty Ltd (the Applicant). A portion of the area over which the application was lodged encroached on an Exploration Licence held by Westover Holdings Pty Ltd (the Objector). The application stated that the area was required for the purpose of "overburden management including rehabilitation and on-going monitoring and drainage control". There was some uncertainty surrounding the extent and the exact nature of the operations that were proposed to be conducted by the Applicant on the area of overlap with the Exploration Licence. Section 91(1) of the Mining Act 1978 (WA) (the Act) provides that a Miscellaneous Licence may be granted for any of the purposes prescribed. The Governor is given the power under section 162(1) of the Act to make regulations that are contemplated by the Act. Under this power the Governor enacted regulation 42B(n) which provides that a Miscellaneous Licence may be granted for any purpose directly

4 5 6 * [2006] SASC 121. Ibid at [38]. Ibid at [35]. Emma Bullen, Law Graduate, Allen Arthur Robinson.


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connected with mining operations approved by the Director-General of Mines. In 2003, the Director-General of Mines, pursuant to regulation 42B(n), approved "overburden management including rehabilitation and on-going monitoring and drainage control" as being a purpose for which a Miscellaneous Licence may be granted. Objector Submissions The Objector made the following submissions: · Regulation 42B(n) was invalid as constituting an unauthorised delegation of the power granted to the Governor to make regulations. Consequently, any purported exercise of the power to prescribe purposes by the Director-General of Mines was invalid. The submission was based on the proposition that a legislative power that has been delegated to a person cannot be delegated by that person to someone else unless the legislation so permits.1 · It was impossible to assess the impact that granting the Miscellaneous Licence would have on the Objectors rights under the Exploration Licence, due to the uncertainty surrounding the operations to be conducted on the Miscellaneous Licence. Due to this uncertainty, the Miscellaneous Licence should not be granted. Applicant Submissions The Applicant made the following submissions: · A warden sitting in open court cannot review the action of the Governor in relation to the making of regulation 42B(n) and cannot review the decision of the Governor to approve the grant of a Miscellaneous Licence under that section. Consequently, the Miscellaneous Licence should not be refused on the ground that the purpose for which it is proposed is not a validly prescribed purpose. · In any case, regulation 42B(n) is valid. · The purpose of "overburden management including rehabilitation and on-going monitoring and drainage control" falls within the non-contentious purposes that are set out in 42B(a) to (m). It was contended that the prescribed purposes of a road, a pipeline, a power line, a bridge, taking water, transport of tailings, hydraulic reclamation, and a sulphur dioxide monitoring station would enable the Applicants to achieve the proposed purpose. · The only issue to be determined is whether or not the grant of the Miscellaneous Licence would be so detrimental to the interests and rights of the Objector that it ought not be granted. Given the size of the encroachment relative to the size of the Exploration Licence, any detriment caused by the grant of the Miscellaneous Licence to the Objector would be minimal. Decision The Warden refused to grant the Miscellaneous Licence. The Warden acknowledged that he had no power to make a binding declaration that regulation 42B(n) is invalid, or that an administrative act performed in accordance with the provisions of the regulation is of no effect.

1 Racecourse Cooperative Sugar Association Ltd v Attorney-General (Qld) (1979) 26 ALR 321.


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The Warden went on to review the validity of regulation 42B(n) and came to the conclusion that the regulation was invalid as an unauthorised delegation of legislative power. The Warden was of the opinion that the lack of power of the Warden to make a declaration binding at large as to the validity of the regulation did not prevent him from refusing to grant the Miscellaneous Licence on the ground that the purpose for which the Miscellaneous Licence was sought was not a purpose that was validly prescribed. The Warden did not consider in detail the issue as to whether the application for the Miscellaneous Licence had the potential to injuriously affect the rights of the Objector or hinder or obstruct the Objector in execution of any rights under the Exploration Licence.2

PLAINT FOR FORFEITURE SIGNED BY A SOLE DIRECTOR* MPF Exploration Pty Ltd v Johnson's Well Mining NL and Duketon Goldfields NL [2006] WAMW 5 (Warden's Court, Leonora, Auty SM) Plaint for forfeiture ­ Signed by sole director ­ Regulation 122 ­ Strike out Background Regulation 122(1) of the Mining Regulations 1981 (WA) provides that: "Every plaint shall be signed by the plaintiff or his solicitor and lodged with the prescribed fee at the office of the mining registrar." There have been a number of previous cases in relation to the issue of whether a plaint was signed in compliance with regulation 122(1). In Exmin Pty Ltd v Australian Gold Resources Ltd1 Warden Calder SM held that a plaint which was signed by a tenement manager engaged by a corporate plaintiff pursuant to a power of attorney did not comply with regulation 122(1) and was a nullity which should be struck-out. The Plaintiff lodged an application for prerogative relief in the Supreme Court seeking judicial review of the Warden's decision. The order nisi was granted by consent but the proceedings were subsequently dismissed without a hearing on the merits. In Goldstream Minerals & Exploration Pty Ltd v Newmont Duketon Pty Ltd & Ors2 Warden Sharratt SM held that a plaint which was signed by a barrister did comply with regulation 122(1). In MPF Exploration Pty Ltd v Horizon Mining Ltd3 Warden Brown SM held that a plaint which was signed by a the sole director of a sole director company did comply with regulation 122(1).

2

* 1 2 3

This is the established ground on which Miscellaneous Licence applications may be refused: Re Roberts; Ex parte Western Reefs Ltd v Eastern Goldfields Mining Company Pty Ltd (1990) 1 WAR 546. Andrew Pullinger and Alex Jones, Gadens Lawyers. [2002] WAMW 29. [2003] WAMW 5. [2004] WAMW 11.