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Extension Hill Pty Ltd vs. O'sullivan - (16 Dec 2020)

No jurisdictional error, when mining warden gave proper consideration regarding non-compliance with the applicable expenditure

Mines and Minerals

The applicant has applied for judicial review of a recommendation made by the mining warden that, certain mining leases held by it be forfeited. The warden made the recommendation under Section 98(4A) of the Mining Act, 1978.

The applicant argues that, in reaching the conclusion that its non-compliance with the applicable expenditure conditions was of sufficient gravity to justify the forfeiture of the mining leases the warden disregarded: (a) the fact that, applicant had paid the annual tenement rent for each mining lease; and (b) that the applicant had incurred significant expenditure on exploration and mining operations on other tenements which, together with the mining leases, formed part of a combined expenditure reporting group.

It was not disputed that the decision of the warden to recommend forfeiture of the tenements was as a step in a decision making process capable of altering rights, interests or liabilities, making it amenable to a writ of certiorari. The proposition that a reviewing court should adopt a beneficial construction of the reasons of administrative decision-makers is well-established. The warden concluded that the applicant's non-compliance could not be characterised as minor and was serious.

The warden's power to recommend forfeiture is not expressly conditioned by a requirement that, the warden consider evidence of expenditure on tenements in the same reporting group. It is not possible to construe the Act in a way that makes such expenditure an implied mandatory relevant consideration. The warden was not bound to consider evidence of expenditure on the Iron Tenements. The warden did not make a jurisdictional error by failing to take into account a relevant consideration.

The warden must consider whether the Act is not being complied with respect of the expenditure conditions applicable to the exploration licence or mining lease for which forfeiture is sought. The warden did not ignore the issue of the expenditure on the Iron Tenements but concluded, in effect, that he could not rely on the applicant's evidence of expenditure on Iron Tenements. That evidence was not direct evidence but relied on inferences drawn as to expenditure from annual technical reports prepared by the applicant in respect of the Iron Tenements. Application dismissed.


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