120 Recent Developments (2006) 25 ARELJ 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. (2006) 25 ARELJ Western Australia 121 Facts The facts in this case were identical to the facts in MPF Exploration Pty Ltd v Horizon Mining Ltd. The Plaintiff was a proprietary company with a sole director. The Plaint was signed by the sole director. The Defendants applied to strike out the plaint on the grounds that it did not comply with regulation 122(1). The application was adjourned by consent pending the hearing of the order nisi in respect of the decision of Warden Calder SM in Exmin Pty Ltd v Australian Gold Resources Ltd. When the proceedings for judicial review of that decision were dismissed without a hearing on the merits, the strike-out application was brought on for hearing. In the meantime, Warden Brown SM had handed down the decision in MPF Exploration Pty Ltd v Horizon Mining Ltd which was precisely on point and in favour of the Plaintiff. The Defendants sought to re-argue the issue before Warden Auty SM. Submissions: Defendants On behalf of the Defendants it was submitted that MPF Exploration Pty Ltd v Horizon Mining Ltd was wrongly decided. Regulation 122(1) expressly authorises plaints to be signed by solicitor agents and thereby impliedly prohibits plaints being signed by non-solicitor agents. The commencement of plaint proceedings is regulated because of the significance of the plaint process and the importance of ensuring that plaints are only issued with the authority of the plaintiff. Regulation 122(1) is a statutory adoption of the common law principle which is found in most rules of court that a litigant must issue and conduct proceedings in person or by a solicitor. The justification for this principle is to ensure that proceedings are only issued and conducted with the authority of the litigant. Corporations can only act by agents. When a director exercises the powers of a company the director acts as agent of the company. An inevitable consequence of the common law principle and its statutory embodiments such as regulation 122(1) is that corporate litigants who cannot issue and conduct proceedings in person may only do so by a solicitor. There is nothing in the Corporations Act 2001 (Cth) which avoids this conclusion by conferring power to issue proceedings upon corporations or their directors, by deeming the signature of directors to be the signature of the corporation or otherwise. The plaint is not signed in accordance with regulation 122(1) and is a nullity which should be struck-out. Submissions: Plaintiffs On behalf of the Plaintiff it was submitted that MPF Exploration Pty Ltd v Horizon Mining Ltd was correctly decided. The common law principle that a litigant must issue and conduct proceedings in person or by a solicitor applies to judicial proceedings but not to administrative proceedings before the Warden. Regulation 122(1) is in a different form to Order 4 Rule 3(2) of the Supreme Court Rules which contains an express rather than merely implied prohibition on the issue and conduct of proceedings by corporate litigants other than by a solicitor. 122 Recent Developments (2006) 25 ARELJ The requirement that a plaint be signed by the plaintiff is satisfied if the plaint is executed in a manner authorised by law. Section 127(1) of the Corporations Act 2001 (Cth) authorises a sole director company to execute documents by having the document signed by the sole director. Section 124(1) of the Corporations Act 2001 (Cth) gives a company legal capacity and the powers of an individual and therefore the power to issue plaints. Section 198E of the Corporations Act 2001 (Cth) authorises a sole director to exercise all the powers of the company including the power to issue plaints. Decision of Warden Auty Warden Auty SM held the sole director of the Plaintiff, having signed the plaint, had not done so as the Plaintiff but as a non-solicitor agent of the Plaintiff. There is nothing in the Corporations Act 2001 (Cth) that saves the plaint. The plaint was a nullity and could not be cured. The plaint should be struck out. PENALTIES IMPOSED BY WARDENS FOR FAILURE TO COMPLY WITH MINIMUM EXPENDITURE CONDITIONS* Hawks and Western Resources and Exploration Pty Ltd v St Ives Gold Mining Company Pty Ltd & Ors [2005] WAMW 321 Van Blitterswyk v Austwhim Resources NL [2006] WAMW 122 Plaints for forfeiture ­ power to impose fine in lieu of forfeiture - sections 96(3) and 98(4) of the Mining Act ­ calculation of fine ­ fine payable to plaintiff In two recent decisions substantial fines have been imposed on tenement holders under sections 96(3) and 98(4) of the Mining Act arising from a failure to comply with expenditure conditions. In each case tenements were found to be in poor standing and during the relevant expenditure year a decision was made by the holders to divest the tenements. The Minister followed the recommendations from each of the Wardens and refused to grant certificates of exemption.3 These recent decisions involve the determination of the plaints for forfeiture. St. Ives In the St Ives Decision the tenement holder failed to meet the expenditure obligations with respect to 3 mining leases and 2 exploration licences. The plaintiff submitted that where there is a failure to comply with the expenditure conditions then the Mining Act contemplates forfeiture.4 The plaintiff contended that there had been a blatant disregard of the obligations under the Mining Act * 1 2 3 4 Mark Gerus, Partner, Blakiston & Crabb. Warden Auty M, delivered 22 December 2005, ("St Ives Decision"). Warden Sharratt M, delivered 19 May 2006 ("Austwhim Decision"). St Ives Gold Mining Company Pty Ltd and Australian Nickel Mines NL and Mincor Resources NL v Hawks and Western Resources and Exploration Pty Ltd [2005] WAMW 19 and Austwhim Resources NL v Van Blitterswyk [2003] WAMW 38. Commercial Properties Pty Ltd v Italo Nominees Pty Ltd, Full Court, Supreme Court of Western Australia, unreported, 16 December 1998.