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Failure to comply with marking out requirements There were additional arguments raised relating to the Applicant's failure to comply with pegging the land, Form 20 requirements on the datum post, Form 21 requirements affixing to the post and failure to comply with reg 37(1)(b) and s 93(2). The only evidence that the Warden had to show that the Applicant had complied with its obligations in relation to marking out the area for the miscellaneous licence was hearsay evidence of an agent of the Applicant. There was no direct evidence on this aspect at all and the Warden found that he could not be satisfied as to compliance on the evidence before him. The Warden stated that he would also have dismissed the application on this ground. Conclusion The Warden therefore dismissed both the applications and invited counsel to make written submissions on the question of costs. MINING LEASE: EVIDENCE OF EXPENDITURE McKnight v Mount Edon Pty Ltd (Warden's Court, Perth, 11-12 January 2007) Mining lease ­ Plaint for forfeiture ­ Evidence of expenditure ­ Business records ­ Onus of proof Background McKnight commenced a plaint for forfeiture in respect of a mining lease, on the basis of alleged non-compliance with the expenditure condition, against the holder at the time of the alleged noncompliance, Mount Edon Mines Pty Ltd. The current holders, Murrin Murrin Holdings Pty Ltd and Glenmurrin Pty Ltd, were joined as defendants to the proceedings. Evidence of expenditure in respect of the mining lease was provided by Mr Mark Campana, the tenement manager who had prepared the form 5 for the year in question. Mr Campana tendered, as evidence of expenditure, a computer printout from the company accounting system of the record of expenditure in respect of the mining lease, showing expenditure against various headings. The Defendants produced no original documentary evidence supporting the listed amounts on the printout. Warden Calder held that the computer printout from the company accounting system of the record of expenditure constituted a business record for the purposes of s 79C(2a) of the Evidence Act 1906 (WA) and was thus admissible. Warden Calder held that there is no necessary obligation on a tenement holder to produce all of the documentation in relation to claimed items of expenditure in defence of a plaint for forfeiture. Rather, the need for a holder to produce detailed evidence in defence of a plaint for forfeiture will depend largely on the strength of the evidence brought by the Plaintiff. In this case, the evidence of the Plaintiff was found to be weak as it essentially consisted of evidence of McKnight that, when he visited the tenement, he saw no evidence of recent activity.

Tim Kavenagh, BJuris, LLB, Special Counsel, and Lauren Goldblatt, BA, LLB (Hons), Mallesons Stephen Jaques, Perth.


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Warden Calder also commented on onus of proof in a plaint for forfeiture. The Warden held that the onus of proof is borne by the Plaintiff, who must show that the tenement holder has failed to comply with the expenditure obligation on the balance of probabilities. Warden Calder found that McKnight failed to discharge the onus of proving non-compliance with the expenditure condition and the plaint was dismissed. RESTORATION OF FORFEITED TENEMENT Karrilea Holdings Pty Ltd [2007] WAMW 7 (Open Court, Perth, heard 21 December 2006, delivered 9 March 2007) Mining Act 1978 ­ Application for restoration of forfeited tenement ­ Criteria for restoration ­ Whether special circumstances exist Facts Karrilea Holdings Pty Ltd (the Applicant) applied to have restored to it Prospecting Licences 57/934-6, 57/938-9 and 57/942 (the Tenements). The Tenements were forfeited pursuant to s 96 of the Mining Act 1978 (WA) (the Act) by the Warden on 20 June 2006 for non-compliance with the expenditure condition for the 2004-2005 expenditure year. An application for the restoration of the Tenements was made pursuant to s 97A(1) of the Act. Two affidavits were lodged in support of the application. The Applicant submitted that there were special circumstances to justify the restoration of the Tenements. The Tenements were part of the Applicant's Manindi Project: $267,696.00 had been spent on exploration on the project area, and it was anticipated that another $250,000 would be spent for the next 12 months. Both amounts exceeded the aggregate minimum prescribed expenditure requirements for the tenements within the Manindi Project. The Applicant was also undertaking active exploration in the area, had identified several prospective zones, and had commissioned design and costing work for processing operations and plant design on the project area to extract zinc. Due to the inadvertence of the Applicant's tenement manager, these significant factors were not brought to the Warden's attention at the hearing of the Applicant's objection to the applications for forfeiture. As such, the Applicant argued that the non-compliance with the expenditure conditions was not of sufficient gravity to justify forfeiture, and even if it was of sufficient gravity, it was open for the Warden to impose a fine in lieu. Held According to s 97A of the Act, where a mining tenement is forfeited under s 96, the former holder of the tenement may apply for it to be restored and the forfeiture cancelled. Although objections under s 97A(6) of the Act may be made against the application for restoration, no objections were made in this case. On hearing of an application for restoration, the Warden may make such orders as he thinks fit, and may either: grant the application and restore the tenement to the former holder; Tim Kavenagh BJuris, LLB, Special Counsel, and Vivian Chung BA LLB (Hons), Mallesons Stephen Jaques, Perth.