[2012] WAMW 15 · Blackfin P/L v Mineralogy P/L [2012} WAMW 15 7 (d) a reference to proceedings...

[2012] WAMW 15

Blackfin P/L v Mineralogy P/L [2012} WAMW 15 1

JURISDICTION : MINING WARDEN

TITLE OF COURT : OPEN COURT

LOCATION : PERTH

CITATION : BLACKFIN P/L v MINERALOGY P/L [2012] WAMW 15

CORAM : WILSON M

HEARD : 4 APRIL 2012

DELIVERED : 24 APRIL 2012

FILE NO/S : APPLICATIONS FOR EXEMPTION 323582-323584,

323587, 323588, 323590, 323592-323594, 334253 &

334254 AND OBJECTIONS KR 103-104/090 & KR 5-

13/090

APPLICATIONS FOR FORFEITURE KR 11-21/090

TENEMENT NO/S : AFFECTING EXPLORATION LICENCES 04/1515-1518,

04/1520-1525 & 04/1529

BETWEEN : BLACKFIN PTY LTD

(Applicant/Respondent)

&

MINERALOGY PTY LTD

(Objector/Applicant)

Catchwords:

Applications – Forfeiture for non-compliance with expenditure conditions –

Exemption from expenditure conditions – Exploration Licences – Objections –

Hearing of Application for Exemption and Forfeiture together – Disclosure –

Documents - Proof – Relevance of Documents – Confidential Documents

Legislation:

[2012] WAMW 15


Mining Act 1978 (WA): s. 74(2), s. 96(1) (b), s. 98, s. 102(2)(b), (d), (g), (h) & 102(3)

Mining Regulations 1981 (WA): r. 137, r. 138, r. 144, r. 145, r. 147 & r. 152

Magistrates Court (Civil Proceedings) Act 2004 (WA): s. 13

Result:

Interlocutory Application Dismissed

Representation:

Counsel:

Applicant/Respondent : Mr M Gerus

Objector/Applicant : Mr J Thompson

Solicitors:

Applicant/Respondent : Gilbert & Tobin

Objector/Applicant : King & Wood Mallesons

Case(s) referred to in judgment(s):

Alchemy Resources (Three Rivers) P/L v Grosvenor Gold P/L [2011] WAMW 9

Italo Nominees Pty Ltd v Commercial Properties Pty Ltd (unreported WASC, FC, 16

December 1988, Library No 7427)

Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55

Beecham Group Ltd v Bristol Myers Co [1979] VR 273

Mulley v Manifold (1959) 103 CLR 341

Creative Land Management Australia Pty Ltd (in Liq) v Barfam Holdings Pty Ltd &

ors [2000] WASC 177

Minetec Pty Ltd v Frost & anor [2011] WASC 145

Alanco Australia Pty Ltd v Higgins [2010] FCA 1481

[2012] WAMW 15


Perpetual Trustees Company Ltd v Burniston [2012] WASC 26

Case(s) also cited:

Berkeley Resources Ltd v Limelight Industries P/L [2012] WAMW 3

[2012] WAMW 15


BACKGROUND

1. Blackfin Pty Ltd (―Blackfin‖) is the registered holder of Exploration Licences

04/1515-1518, 04/1520-1525 & 04/1529 (collectively referred to as (―E’s‖)

located in the Kimberley region of Western Australia. Blackfin makes

application for Exemptions from expenditure conditions (―Exemptions‖) for

each of the E’s for the expenditure year ending at various dates in 2009

(―Expenditure Year‖) relevant to each of the E’s.

2. The grounds of the Exemptions applied for by Blackfin are made pursuant to s.

102(2)(b), s. 102(2)(d), s. 102(2)(g), s. 102(2)(h) and s. 102(3) of the Mining

Act.

3. Mineralogy Pty Ltd (―Mineralogy‖) has lodged objections (―Objections‖) to

each of the Exemptions by Blackfin. The grounds of the Objections by

Mineralogy are, in general terms, that it denies the truth of the reasons for the

Exemptions sought by Blackfin.

4. Further, Mineralogy has lodged applications for forfeiture of the E’s

(―Forfeiture Applications‖) as it alleges Blackfin has failed to comply with the

expenditure conditions (―Expenditure‖) for each of the E’s. Blackfin opposes

the Forfeiture Applications. Mineralogy contends, in general terms, that

Blackfin has systematically failed to comply with Expenditure for the E’s.

5. On 8 September 2011, an order was made (―September Order‖), inter alia, by

the warden relevant to these proceedings in the following terms:

“1. Applications for Exemption 323582-323584, 323587, 323588, 323590, 323592

323594, 334253 & 334254 (Exemption Applications) and Applications for

Forfeiture KR 11-21/090 (Forfeiture Applications”) affecting Exploration Licences

04/1515-1518, 04/1520-1525 & 04/1529 be heard together.

2. The parties have liberty, following the determination of the Exemption Applications,

to lead further evidence and make further submissions regarding the Forfeiture

Applications.”

6. The September Order was made at the request of Blackfin pursuant to a Minute

of Proposed Orders dated 2 September 2011 prepared by Blackfin. The

September Order was not opposed by Mineralogy. The September Order also

programmed the Exemptions, the Objections and the Forfeiture Applications to

a hearing in May 2012.

[2012] WAMW 15


7. Both Blackfin and Mineralogy have progressed towards the hearing of the

Exemptions, the Objections and the Forfeiture Applications by compliance

with the September Orders and various other orders made since that date.

Interlocutory Application

8. On 26 March 2012, Mineralogy lodged an Interlocutory Application

(―Interlocutory Application‖) in which it seeks the following orders:

―1. Blackfin to produce, by 4:30 PM on Friday, 13 April, the following documents:

a) Programmes of Works for tenements E 04/1515, E 04/1517, E 04/1520, E

04/1521, E 04/1525 and E 04/1529 for the 2008/2009 expenditure year

(Disputed Expenditure Year).

b) Programmes of Works for all 11 tenements the subject of these proceedings

being E 04/1515-1518, E 04/1520-1525 and E 04/1529 (Subject

Tenements) for the 2006/2007 and 2007/2008 expenditure years (Previous

Expenditure Years).

c) Programmes of Works for the Subject Tenements for the 2009/2010 and the

2010/2011 expenditure year.

d) Any contracts entered into by Blackfin, Rey Kimberley Pty Ltd or Rey

Resources Limited in respect of any works specified in the Programmes of

Works for the Subject Tenements for the Disputed Expenditure Year and

the Previous Expenditure Years.

e) Statutory declarations made in support of previous applications for

exemption from expenditure requirements for the Subject Tenements for the

Previous Exemption Years.

f) A complete copy of the Definitive Feasibility Study prepared for the

Duchess Paradise Project (DFS) referred to in paragraphs 24 to 26 of the

statement of evidence of Kevin John Wilson dated 4 December 2011.

2. Leave be granted to Mineralogy to issue a witness summons pursuant to

regulation 127 of the Mining Regulations 1981 to the Department of Mines

and Petroleum to produce the documents referred to in order 1(a), (b), (c)

and (e) above, in substantially the form annexed to the affidavit of Larissa

Monique Strk-Lingard sworn on 26 March 2012 and marked LMS 8.

3. Blackfin Pty Ltd pay the costs of this application forthwith.‖

9. Blackfin opposes some of the orders sought by Mineralogy in the Interlocutory

Application.

Submissions by Mineralogy

Power of the Warden to order Production of Documents

10. Mineralogy submits it has made a number of requests of Blackfin to disclose

the documents the subject of the Interlocutory Application. In early February

2012 some, but not all, of the documents requested by Mineralogy were

disclosed by Blackfin. Mineralogy maintains Blackfin has not provided

[2012] WAMW 15


sufficient explanation as to why it has failed to disclose all of the documents so

requested. Mineralogy states that Blackfin contends the warden has no power

to order Blackfin to disclose the documents sought by Mineralogy.

11. However, Mineralogy submits that in the circumstances of this case where the

Exemptions, Objections and the Forfeiture Application are to be heard together

then, even if the proceedings are not formally joined, the provisions of r. 147 of

the Mining Regulations apply. This gives the warden power pursuant to r. 145

to order Blackfin as the applicant for the Exemption to provide additional

information by way of disclosure in that proceeding. To understand the

argument of Mineralogy it is necessary to consider the provisions of r.145 and

r. 147. Regulations 145 states:

“145. Disclosure of documents by applicant

(1) The warden may, at any time during proceedings, order that an applicant

shall provide additional information by disclosing documents relevant to

the proceedings.

(2) For the purposes of sub regulation (1) the Magistrates Court (Civil

Proceedings) Rules 2005 Part 7 applies so that —

(a) a reference to an order under section 16(1) (n) is to be read as a

reference to an order under sub regulation (1); and

(b) a reference to a party ordered to provide additional information by

disclosing documents is a reference to an applicant who is subject to an

order under sub regulation (1); and

(c) a reference to the Court is to be read as a reference to the warden; and

(d) a reference to a case is to be read as a reference to proceedings under

this Division; and

(e) a reference to the trial is to be read as a reference to a substantive

hearing of the proceedings.

(3) An order under sub regulation (1) cannot be made against a respondent.”

12. Regulation 147 states:

“147. Procedure when objection heard together with proceedings under

Division 2

When proceedings for an objection are heard together with proceedings under

Division 2 then, even if the proceedings are not joined, regulations 144 and 145

apply so that —

(a) a reference to a response under regulation 141 is to be read as a

reference to an objection; and

(b) a reference to a respondent is a reference to the person making the

objection; and

(c) a reference to a party includes the person making the objection; and

[2012] WAMW 15


(d) a reference to proceedings includes the proceedings relating to the

objection.”

13. Mineralogy submits the effect of r. 147(b), (c) and (d) applies to the Objection

to the Exemptions so that the applicant and the objector are regarded as parties

to the Exemption and the Objector is regarded as the respondent. That

Mineralogy maintains is consistent with the provisions of r. 147(a) that

provides that the lodgment of the Objection is to be regarded as, in effect, a

response to the Exemptions.

14. Accordingly, Mineralogy submits the effect of the provisions of r. 147 when

read with r. 145 creates a meaning as follows:

“r. 147 The warden may, at any time during proceedings, order that an

applicant (for exemption) shall provide additional information by disclosing

documents relevant to the proceedings”

15. It also follows, submits Mineralogy, that r. 145(3) would after the application

of r. 147 read as follows:

“r. 145(3). An order under sub regulation (1) cannot be made against a

[person making an objection.]”

16. The logical result, submits Mineralogy, is the warden, may at any time during

the hearing of the Exemption and the Objection thereto and the Forfeiture order

the applicants in both the Exemptions and the Forfeitures to provide additional

information by disclosing documents relevant to the proceedings. It also

logically follows that the objector/respondent to each of the Exemptions and

the Forfeitures cannot be ordered by the warden to disclose any documents

relevant to the proceedings pursuant to s. 145(3).

17. Mineralogy submits there is no other role the provisions of r. 147 would play

if it were read in any other way. Reference was made by Mineralogy to a

decision of Alchemy Resources (Three Rivers) P/L v Grosvenor Gold P/L

[2011] WAMW 9 (―Alchemy Case‖) in which the prohibitive nature of the

provisions of r. 145(3) and r. 147 were noted by reference to the protection of

the onus of proof that exist under s. 96(1) (b) and s. 98 and objections thereto

under Part IV of the Act.

18. The protection of the relevant onus of proof is demonstrated, submits

Mineralogy, because the onus rests upon the applicant for the Forfeitures (in

this case Mineralogy) to establish the failure by the tenement holder to meet

the Expenditure in the Expenditure Year. The applicant for the Forfeitures, in

this case Mineralogy, upon establishing the failure by the tenement holder to

meet the Expenditure in the Expenditure Year, shifts to the tenement holder (in

this case Blackfin) the onus to establish that the failure to comply with the

[2012] WAMW 15


Expenditure in the Expenditure Year is not of sufficient gravity to warrant

forfeiture of the tenement. (see: Italo Nominees Pty Ltd v Commercial

Properties Pty Ltd (unreported WASC, FC, 16 December 1988 Library No

7427)

19. On the other hand, Mineralogy submits, in the Exemptions the onus is upon the

applicant (in this case Blackfin) to establish the Exemptions are justified and if

it fails to do so, the matter can proceed to a hearing of the Forfeitures as a

prima facie case of forfeiture of the E’s haves been made out.

20. In each of the scenarios above, Mineralogy submits, the protection of the

relevant onus of proof is recognized and protected by requiring only that party

making the application and upon whom the onus rests to prove the application

be subject to an order for further disclosure by order of the warden.

21. Mineralogy submits the provisions of r. 147 only operate where an objection

to the grant of an exemption under Part IV of the Act is heard together with

proceedings for the forfeiture of a mining tenement under s. 96(1)(b) and s. 98

of the Mining Act, notwithstanding that the proceedings are not joined. It is

noted by Mineralogy in its submissions the comments made by me in the

Alchemy Case as to the nature of the joint hearing of applications for

exemptions and forfeiture “recognize(s) the practice before the warden when

hearing applications for exemption from expenditure conditions and objections

thereto and the hearing of applications for forfeiture of the non-compliance

and with the application for exemption and the objections thereto is headfirst.

The evidence in that hearing is deemed to be the evidence in the application for

forfeiture with leave to adduce further evidence if the application for forfeiture

proceeds as a consequence of the outcome of the preceding matter." I shall

make further comment in relation to this practice later.

Relevance of Documents Sought by Mineralogy

22. Mineralogy submits that Blackfin should disclose a copy of its programmes of

works for the Expenditure Year as they are relevant to the issues in dispute,

they relate to the Exemptions, they will reveal the extent to which Blackfin

planned Expenditure for the E’s in the Expenditure Year, and may reveal the

extent to which Blackfin was generally prevented from meeting Expenditure

by other factors.

23. Blackfin has disclosed some of the programmes of work for some of the E’s in

the Expenditure Year but has not disclosed them all. Mineralogy submits there

is no valid basis, nor has there been objection or explanation from Blackfin,

[2012] WAMW 15


upon which Blackfin can now assert the programmes of works for the

Expenditure Year are not relevant to the issues in dispute in the Exemptions.

24. Mineralogy also seeks disclosure by Blackfin of programmes of works for the

E’s for the years preceding the Expenditure Year as it says it is relevant to the

Exemptions and will reveal the extent Blackfin planned any expenditure on the

E’s and may reveal the extent to which Blackfin was genuinely prevented from

meeting Expenditure by other factors.

25. Further, Mineralogy says the Blackfin relies upon expenditure in the years after

the Expenditure Year and as such it is relevant to the issue in dispute in the

Exemptions. Mineralogy denies the relevance of the expenditure in the years

after the Expenditure Years but in circumstances where it has been raised by

Blackfin it should be disclosed as Mineralogy submits it may establish a

pattern of behaviour in relation to planning for Expenditure and may also

reveal whether the Expenditure claimed to have been incurred on the E’s in the

years subsequent to the Expenditure Year can be said to be exploration

expenditure or referable to the programmes of works.

26. Blackfin has disclosed some of the documents verifying the expenditure it has

incurred in the years subsequent to the Expenditure Year. Mineralogy says that

given only some of those documents have been disclosed by Blackfin that all

should be disclosed if it is their intention to rely upon those matters at the

hearing.

27. Mineralogy also seeks that Blackfin disclose contracts it or any of its related

companies may have entered into in the Expenditure Year as that will be

demonstrable of any planned expenditure in that year or in any other year.

Mineralogy also seeks the disclosure of statutory declarations lodged by

Blackfin in support of prior applications for exemptions. The basis for seeking

that order is that Mineralogy submits such contracts may assist the warden in

determining whether there are any relevant pattern of behaviour by Blackfin in

seeking exemptions in respect of the E’s.

28. A Definitive Feasibility Study (―DFS‖) commissioned by Blackfin has been

partially disclosed by Blackfin. Mineralogy submits the DFS is relevant and

should be disclosed in whole by Blackfin because it has sort to put into

evidence that in recent years Blackfin's focus has been on the development of

the Duchess Paradise Project, that project being part of a larger Canning Basin

Coal Project. The disclosure of the whole of the DFS, says Mineralogy, may

provide evidence that explains why Blackfin has failed to meet Expenditure on

[2012] WAMW 15


the E’s. The DFS should be disclosed in whole rather than partially disclosed

given that a comprehensive confidentially regime exists between the parties.

29. Mineralogy also seeks leave to issue a witness summons to be Director-

General of the Department of Mines and Petroleum (―Department‖)to produce

copies of the programmes of works lodged with the Department for the

Expenditure Year, copies of the programmes of works for the E’s for the years

preceding the Expenditure Year, the programmes of works for the E’s for the

years after the Expenditure Year and copies of the statutory declarations made

in support of the previous applications for exemption in the years before the

Expenditure Year.

Submissions by Blackfin


30. Blackfin submit that on a proper construction of r. 145 and 147 the warden has

no power pursuant to r. 147 to order disclosure of documents by an applicant

for exemption. However, Blackfin submits if a warden does have power to

order disclosure of documents by an applicant for exemption such power can

only be exercised in a manner consistent with and that does not undermine the

operation of r.145(3).

31. Blackfin agrees the provisions of r. 145(1) permits a Warden to compel the

disclosure of documents from an applicant for forfeiture such as in these

proceedings. It is conceded by Blackfin that the provision of r. 145(3) prohibits

a warden from compelling the disclosure of documents from respondent to an

application for forfeiture.

32. It is submitted by Blackfin that on a proper construction of r. 147 when read in

conjunction with r. 145, does not change the meaning of the word ―applicant‖

in r. 145(1). It is submitted by Blackfin that if the reference to an ―applicant‖ in

r. 145(1) was intended to be read as a reference to an applicant for exemption

in circumstances where proceedings are heard together, then r. 147 would

expressly be provided for in that interpretation. It follows, submits Blackfin

that as r. 147 does not alter the meaning of the word ―applicant‖ in r. 145(1)

were proceedings are heard together, the proper construction requires that the

word ―applicant‖ be given the same meaning as it would be given if r. 145

were to be considered in isolation (ie: when proceedings are not heard

together)

33. As such, Blackfin submits a reference to an ―applicant‖ in r. 145(1) when

considered in isolation and when read with r. 147 refers only to an ―applicant‖

[2012] WAMW 15


for forfeiture. This construction is consistent, submits Blackfin with the

intention of the Mining Act that restricts and protects the disclosure of and

confidentiality in mining information regarding applications for mining leases

and mining information.

34. Blackfin submits the power to order disclosure extends only to the disclosure

of those documents relevant to the question in the Exemptions proceedings

alone, and not to documents that are relevant to the separate question in the

Forfeitures proceeding. If a document is relevant to both questions in

proceedings that are heard together, it must fall under r. 143(3) prohibition and

the warden does not have the power to order its production. Blackfin, therefore

says, that to grant an objector/applicant in the Forfeitures orders compelling a

respondent/applicant in the Exemptions to produce documents relevant to the

Forfeitures proceeding in circumstances where those proceedings are heard

together would subvert the clear intention and purposes of the prohibition

contained in r. 145(3).

35. In those circumstances, Blackfin submits the power of a warden to order

disclosure extends only to the disclosure of those documents relevant to the

question in the Exemptions proceeding alone, and not to documents that are

relevant to the separate question in the Forfeitures proceedings. If the

document is relevant to both questions in both proceedings heard together it

must, submits Blackfin, fall under r. 145(3) and is therefore prohibited from

being produced. If a warden were to grant an objector/applicant in the

Forfeitures an order that compels a respondent/applicant for Exemptions to

disclose documents relevant to the Forfeitures proceedings in circumstances

where those proceedings are heard together would be a subversion of the clear

intention and purpose of the prohibition contained in r. 145(3).


36. Blackfin submits the programmes of work sought by Mineralogy have all been

disclosed by Blackfin to Mineralogy and for Mineralogy to pursue those

matters is simply futile. Further, Blackfin submits the request for the disclosure

of contracts entered into by Blackfin or other associated companies for the

Expenditure Year are not evidence of expenditure incurred by or on behalf

Blackfin in relation to the Canning Basin Coal Project. Even if those

documents were to be disclosed and were to provide some information as to the

work that was planned to be carried out by Blackfin or others they would not

constitute evidence that Expenditure was actually incurred. Accordingly, those

documents are regarded by Blackfin as irrelevant to these proceedings. What

has been disclosed by Blackfin in some 25 file volumes of evidence contains

accounts, records of invoices, cheque requisitions forms, and bank statements

[2012] WAMW 15


that evidence Expenditure incurred by Blackfin on the Canning Basin Coal

Project in the Expenditure Year.

37. Blackfin submits the DFS commissioned by it for the proposed Duchess

Paradise Project if disclosed in its entirety includes detailed drilling

information, costs, assumptions etc. This document is regarded by Blackfin as

highly confidential and could not be considered a more commercially sensitive

and valuable document that is being sought by a competitor, Mineralogy, in the

coal industry in the same area Blackfin is exploring.

38. An order to produce the DFS because of the Objection by Mineralogy to the

Exemptions would, according to Blackfin, be contradictory to the purposes of

the Mining Act in relation to the encouragement and facilitation of mining,

exploration and development. Blackfin says the Mining Act creates a scheme

whereby confidential mining information acquired by tenement holders in the

course of their exploration is either incapable of being requested by a mining

registrar or warden or alternatively protected from publication by the

Department. Blackfin refers in this regard to s. 74(2) of the Mining Act that

prohibits a mining registrar or warden, when considering an application for a

mining lease, to request various information regarding assays or other results

of testing or sampling an applicant may have carried out on the land the subject

of the application. Further reference was made by Blackfin to r. 96 that restricts

the release of publication by the Department of mining information.

39. It is submitted by Blackfin that the Mining Act operates to protect the valuable

information that mining tenement holders acquire by virtue of exploration and

expenditure. In those circumstances, it says the warden should exercise

discretion and act in accordance with the provisions of r. 145(3) and r. 147 and

decline to order disclosure.

Conclusion


40. In my opinion, a warden has the power to order the disclosure of documents

pursuant to r. 145 & r. 147. However, in what circumstances can that power be

exercised and such an order made needs to be understood by an interpretation

not only the words of r. 145 & r. 147 but in the context of Part VIII of the

Regulations.

41. Division 1 of Part VIII of the Regulations makes provision for the definition of

certain terms applicable to proceedings under Part IV of the Act, for the

lodgment of documents through the Department’s website, for the manner in

[2012] WAMW 15


which a mining registrar is to list proceedings under Part IV of the Act before a

warden, the powers of the warden to regulate a mention hearing and to

determine by default a proceeding under Division 1 of Part VIII of the

Regulations when an order or direction of the warden is not complied with.

42. Division 2 of Part VIII of the Regulations makes provision for the manner in

which an applications is made for forfeiture pursuant to s. 96(1)(b) and 98 of

the Mining Act and for the manner of filing of responses and particulars, for

joiner of parties, settlement, admission, discontinuance and, relevant to these

proceedings, the method by which disclosure may be made in applications for

forfeiture.

43. Division 3 of Part VIII of the Regulations makes provision for the manner in

which Objections maybe made to proceedings under Part IV of the Mining Act

including an objection to an application for exemption from complying with

expenditure conditions and, relevant to these proceedings, the procedure to be

adopted when an application for forfeiture under s. 96(1)(b) and 98 of the

Mining Act under Division 2 of the Regulations is to are heard at the same

time as an application for exemption.

44. The reading and interpretation of the provisions of r. 145 & r. 147 is assisted

by the definitions contained within the provisions of r. 137 of the Regulations

in particular those definitions relating to ―proceedings‖ and ―objection‖.

Regulation 137 states:

“137. Terms used

(1) In this Part, unless the contrary intention appears —

agent means a person acting for a party under regulation 169(2);

determination means a decision, order or recommendation;

hearing means —

(a) a mention hearing; or

(b) the hearing of an interlocutory application; or

(c) the substantive hearing of proceedings;

mention hearing means a mention hearing under regulation 138(1) or (2)

(c);

objection means an objection under Part IV of the Act;

party means a party to proceedings;

proceedings —

(a) when used in Division 2, means proceedings in respect of an

application under section 96(1) (b) or 98; and

[2012] WAMW 15


(b) when used in Division 3, means proceedings relating to an

application under Part IV in relation to which an objection has

been lodged; and

(c) otherwise means proceedings under this Part.

(2) For the purposes of this Part, proceedings are taken to have commenced

when —

(a) an application under section 96(1) (b) or 98; or

(b) an objection,

has been lodged.‖

45. Division 2 of Part VIII of the Regulations is a provision that prescribes the

procedures to be adopted following the lodgment of an application for

forfeiture. It specifically provides at r. 144(2) (a), relevant to the matter before

me, that both the applicant for forfeiture and the respondent thereto shall lodge

a list of documents that both parties might tender into evidence at the

substantive hearing. Regulation 144 states:

“144. Particulars

(1) A person lodging and serving an application under regulation 140

or a response under regulation 141 shall lodge and serve a written

statement of the application or response —

(a) at the same time as the person lodges and serves the

application or

(b) as directed by the warden at a mention hearing.

(2) The statement of particulars shall contain —

(a) a summary of the facts relevant to the application or

response; and

(b) the legal basis of the application or response; and

(c) the basic contentions of the person making the application

or response; and

(d) a list of any documents that the applicant or respondent

might tender in evidence at the substantive hearing of the

proceedings.

(3) The warden at a mention hearing may order that a party shall

provide further particulars of an application or response in

addition to those provided under sub regulation (1).‖

46. The provisions of r. 145(1), empowers a warden to order the applicant for

forfeiture to disclose, within the meaning of Part 7 of the Magistrates Court

(Civil Proceedings) Rules, any document that is relevant to the proceedings to

the respondent. However, a Warden is prohibited by r. 145(3) from making a

similar order for disclosure of relevant documents by a respondent to an

[2012] WAMW 15


application for forfeiture. It is r. 145(3) that ensures the onus of proof that rests

upon the applicant does not move to the respondent by requiring there be no

order made for disclosure of any documents by the respondent that it might

rely upon.

47. Division 3 of Part VIII of the Regulations is a provision that prescribes the

manner of lodging an objection to any application under Part IV of the Mining

Act, except an application for forfeiture under s. 96(1) (b) and s. 98 of the

Mining Act. Division 3 of Part VIII of the Regulations does not provide the

power for a warden to do anything. The warden is empowered to give direction

regarding the conduct of an objection only after the objection is listed for a

mention hearing by the mining registrar pursuant to r. 138(2). At a mention

hearing the warden may then exercise the powers provided for by r. 152 as to

the further conduct of the hearing of the objection and the application. It would

seem, in those circumstances, there appears to be no reason pursuant to r. 152

to prevent a warden at the mention hearing from ordering both the applicant

and objector to provide particulars of both the application and objection and to

disclose any documents they have in their possession or control relevant to the

proceedings.

48. In my opinion, Divisions 2 and 3 of Part VIII of the Regulations operate

independently of the other. That is when, for example, an objection to an

application for a mining tenement or an objection to an application for

restoration of a forfeited mining tenement or an objection to an application for

exemption from expenditure conditions is dealt with by itself would be dealt

with under the provisions of Divisions 1 and 3 of the Regulations. On the other

hand an application for forfeiture of a mining tenement for non-compliance

with expenditure conditions when dealt with by itself would be dealt with

under the provisions of Division 1 and 2 of Part VIII of the Regulations.

49. However, in my opinion, that position changes when an objection to an

application for exemption from expenditure conditions and an application for

forfeiture of a mining tenement for non-compliance with expenditure

conditions are heard together. That is because the provision of r. 147 provides

that r. 144 and r. 145 apply in such circumstance.

50. In my opinion, the effect of r. 147 is that the provisions of Division 2 of Part

VIII of the Regulations remains unchanged in respect to the application for

forfeiture of a mining tenement pursuant to s. 96(1)(b) and s. 98 of the Mining

Act. That is, the applicant for forfeiture must provide a written statement of

particulars pursuant to r. 144 and is exposed to a warden ordering that they also

provide additional disclosure of documents pursuant to r. 145. The respondent

[2012] WAMW 15


to the application for forfeiture of a mining tenement pursuant to s. 96(1)(b) or

s. 98 of the Mining Act must also provide not only a response pursuant to r.

141 but must also provide the particulars provided by r. 144.

51. The effect of r. 147 when applied to the hearing of an objection to an

exemption from expenditure conditions and an application for forfeiture of a

mining tenement at the same time requires the objector to provide particulars

as provided by r. 144. However, pursuant to r. 144(3) a warden may order both

the applicant and the objector to provide further particulars of both the

application and the objection at a mention hearing. The provisions of r. 145

change only to the extent that an objector to an exemption from expenditure

conditions and a respondent to a forfeiture application cannot be ordered to

disclose documents.

52. If the provisions of r. 144 and 145 were to be amended to be read in

accordance with the application of the provisions of r. 147 it would state, in my

opinion, as follows:

“144. Particulars

(1) A person lodging and serving an application under regulation 140

or an objection shall lodge and serve a written statement of the

application or the objection —

(a) at the same time as the person lodges and serves the

application or objection or

(b) as directed by the warden at a mention hearing.

(2) The statement of particulars shall contain —

(a) a summary of the facts relevant to the application or

objection; and

(b) the legal basis of the application or objection; and

(c) the basic contentions of the person making the application

or objection; and

(d) a list of any documents that the applicant or objector

might tender in evidence at the substantive hearing of the

proceedings.

(3) The warden at a mention hearing may order that a party shall

provide further particulars of an application or objection in

addition to those provided under sub regulation (1).‖

“145. Disclosure of documents by applicant

(1) The warden may, at any time during proceedings, order that an

applicant shall provide additional information by disclosing

documents relevant to the proceedings.

[2012] WAMW 15


(2) For the purposes of sub regulation (1) the Magistrates Court (Civil

Proceedings) Rules 2005 Part 7 applies so that —

(a) a reference to an order under section 16(1) (n) is to be read as a

reference to an order under sub regulation (1); and

(b) a reference to a party ordered to provide additional information by

disclosing documents is a reference to an applicant who is subject to

an order under sub regulation (1); and

(c) a reference to the Court is to be read as a reference to the warden;

and

(d) a reference to a case is to be read as a reference to proceedings under

this Division; and

(e) a reference to the trial is to be read as a reference to a substantive

hearing of the proceedings.

(3) An order under sub regulation (1) cannot be made against an

objector.”

53. In my opinion, the above regulations when interpreted and applied in

accordance with the above would result in the following:

Application for Forfeiture

Mineralogy being the applicant in the application for forfeiture (s. 98) is

obliged to lodge written particulars of the application (r. 144) and may be

subject to an order of the warden to disclose documents to the respondent (r.

145(1)).

Blackfin being the respondent in the application for forfeiture (s. 98) by

Mineralogy may lodge a response (r. 141) and if Blackfin does lodged a

response is required to provide written particulars of its response (r. 144), but

cannot be ordered by a warden to disclose documents to the applicant (r.

145(3)).

Application for Exemption

Blackfin being the applicant for exemption (s. 102) from expenditure

conditions may be ordered by the warden to provide further particulars of its

application (r. 152) and may be subject to an order by the warden to disclose

documents to the objector (r. 145(1)).

Mineralogy being the objector to the application for exemption (r. 146) is

required to provide written particulars of its objection (r. 144) but cannot be

ordered by a warden to disclose documents to the applicant (r. 145(3)).

[2012] WAMW 15


54. That application of the interpretation of r. 147 preserves the onus of proof in

each application and also protects the respondent and the objector from

disclosure.

55. The practical effect of that interpretation of r. 147 upon an application for

Exemptions, Objections and Forfeiture is some evidence that may be relied

upon by the parties in one application and not be required to be produced by

them may be required to be produced in the other proceeding given that to

some extent an application for forfeiture and an application for exemption are

often rely upon similar evidence. This will inevitably result in the prohibitive

provisions of r. 145(3) being overcome by the fact the respondent to a

forfeiture application becomes the applicant in the exemption application and

may be obliged to disclose documents in the exemption application it would

otherwise not be obliged to disclose. The same of course will result to an

applicant to a forfeiture application who is an objector to the exemption

application.

56. The provisions of r.147 are unusual to say the least. Counsel for Blackfin and

Mineralogy have been unable to enlighten me of the origins and intention of r.

147. It perhaps arose as a consequence of practices developing in remote

wardens courts that enabled proceedings for exemption from expenditure and

objection thereto and applications for forfeiture involving the same mining

tenement being heard at the same time thereby reducing time, travel and legal

costs to all parties should the exemption application be unsuccessful and the

need to then consider the forfeiture application arose to be dealt with on the

papers without the need to hear from the parties again.

57. Whatever the origins of r. 147 it is not without its difficulties in application of

all principles of procedural fairness and natural justice and other considerations

that have been alluded to in the course of argument over its correct

interpretation. It is also a strange regulation to balance against the provisions of

r. 152(1) (l) to conduct proceedings efficiently, economically and

expeditiously. To hear an application for forfeiture at the same time as an

application for exemption may prove to be as uneconomic and inefficient as it

comes. If the exemption from expenditure conditions is granted by the Hon.

Minister, the need to hear an application for forfeiture may not be necessary or

warranted. However, by hearing both the exemption and forfeiture application

at the same time requires preparation for the forfeiture proceedings that may

never be required. That in its self is uneconomic and ineffective given the

evidence lead in the exemption application may have the effect of crystallizing

the evidence that may need to be lead in the forfeiture application if it is

necessary to proceed.

[2012] WAMW 15


58. Another difficulty the provision of r. 147 raises is how costs are to be

calculated in the event both matters are heard and the forfeiture application is

the subject of a determination. What portion of costs incurred in the course of

the hearing of both matters are to be deemed to be that belonging to the

forfeiture application and that belonging to the exemption application? Matters

such as this have been the comment by His Honour Warden Calder in Berkeley

Resources Ltd v Limelight Industries P/L [2012] WAMW 3.

59. Another more practical difficulty a hearing conducted together under r. 147

creates is that the proceeding becomes a part heard matter before the presiding

warden in the vent the exemption is not granted by the Hon. Minister and the

parties seek to reconvene the court for the hearing of further evidence. That of

course raises the issues of what is to occur if the presiding magistrate was to

have retired, resigned or died before the proceeding was finalized?

60. Despite the inherent difficulties in the implementation of the procedures

created by the provisions of r. 147, I am of the opinion, on the plain meaning of

the words contained in that regulation the only interpretation that can be given

to r. 147 is that described by me above. That interpretation is not entirely

inconsistent with the submissions by Mineralogy.

61. When a party to proceedings to which r. 147 is applicable either consents to or

requests that an application for exemption and an objection thereto and an

application for forfeiture of a mining tenement for non-compliance with

expenditure conditions being either heard together or joined it must be taken to

have considered both the provisions and implications of r. 147 before doing so.

Accordingly, having agreed to be bound by the provisions of r. 147 a party

cannot later complain about the effect it may have upon them in the

proceedings.


62. Relevant to proceedings to which r. 147 applies, a warden is prohibited

pursuant to r. 145(3) to make an order for disclosure against an objector to

proceedings for an exemption from expenditure conditions and a respondent to

an application for the forfeiture of a mining tenement for non-compliance with

expenditure conditions.

63. Accordingly, the provisions of r. 145(1) only empower a warden to order

disclosure by an applicant for exemption from expenditure conditions (in this

case Blackfin) and an applicant for forfeiture of a mining tenement for failure

to comply with expenditure conditions (in this case Mineralogy).

[2012] WAMW 15


64. The test to be applied as to whether a warden should order that a document be

disclosed is whether it is relevant as provided by r. 145(1). The law in relation

to the discovery or disclosure of documents that are relevant to the matter in

question in a proceeding was established in the Compagnie Financiere du

Pacifique v Peruvian Guano Co (1882) 11 QBD 55 (more commonly known

as the Peruvian Guano Case) and later Mulley v Manifold (1959) 103 CLR 341

at 345. Those cases established that the range of documents that were

potentially relevant and therefore discoverable in a case was almost limitless.

A document was discoverable if it may fairly lead the party to a train of inquiry

which may have either of two consequences to directly or indirectly advance

the party’s own case or to damage the case of the adversary. But documents

which go directly to the credit of the party from whom discovery of them is

sought do not relate to a matter in question (see: Beecham Group Ltd v Bristol

Myers Co [1979] VR 273 at 278).

65. In ordering disclosure of documents pursuant to r. 145(1) regard should be had

to r. 152(1)(l), Part 7 of the Magistrates Court(Civil Proceedings) Rules 2005

and the Supreme Court Rules (1971) WA. I note the provisions of r. 152(1) (l)

provides that a warden may at any time in the proceedings do all or any of the

following for the purpose of controlling and managing the proceedings “r.

152(1) (l) do anything else that in the warden‟s opinion will or may facilitate

proceedings being conducted and concluded efficiently, economically and

expeditiously.” That regulation is not inconsistent with the provisions of s. 13

of the Magistrates Court (Civil Proceedings) Act (2004) or the case

management provisions of the Supreme Court Rules. The application of the

Rules of the Supreme Court to case management of proceedings in that

jurisdiction, particularly the issues of discovery, was well summarized by

Master Bredmeyer in Creative Land Management Australia Pty Ltd (in Liq) v

Barfam Holdings Pty Ltd & ors [2000] WASC 177 at [5] when he said:

―I am not willing to grant wide discovery sought by the plaintiff. Since the

Peruvian-Guano test was established in 1882 and Mulley v Manifold was

decided in 1959, this Court has introduced case management and O 1 r 4A and

r 4B. Under those rules, interlocutory activities must be essential to the fair and

just determination of the issues in contention between the parties and should

promote the just determination of litigation at a cost affordable to the parties.

The court has also introduced in O 27 r 7(3) (b) (ii) a provision that the court

can restrict discovery to documents directly relevant to any specified matter in

question. I propose to do that in this case and confine the plaintiff to the

matters which I see as directly relevant arising from the pleadings.‖

[2012] WAMW 15


66. I consider that to adopt such an approach in the proceedings before me to that

expressed by Master Bredmeyer in Creative Land Management case (supra) is

not inconsistent with the power of a warden under r. 152(1) (l).

67. Blackfin submission the DFS is a highly confidential document that contains

highly sensitive commercial information on its operations in the same area in

which Mineralogy has interests and operations must be noted. His Honour

Justice Edelman in Perpetual Trustees Company Ltd v Burniston [2012]

WASC 26 at [26 to 37] said confidentiality did not prevent a document being

discoverable. A further useful and, in my view, applicable approach to the

discovery or disclosure of confidential documents issue in the warden’s court is

to be found in the decision of His Honour Justice Corboy in Minetec Pty Ltd v

Frost & anor [2011] WASC 145 at[17 to 26]. In that case reference was made

to the decision of His Honour Justice McKerracher in Alanco Australia Pty

Ltd v Higgins [2010] FCA 1481 in which McKerracher J said:

“The balancing exercise to be undertaken requires that before the court can

decide that it is in the interests of justice to impinge upon the defendants‟

legitimate interest in the maintenance of the confidentiality of their

commercially sensitive information, Alanco must show that it is actually

necessary for the conduct of the case. This was central to the conclusion by

Spender J in MacKay Sugar.”

68. His Honour Justice Corboy in the Minetec case (supra) having considered the

reasoning in a number of cases that dealt with the issue of disclosure of

confidential material as that by McKerracher J went on to say at the following:

“Casting matters of practice and procedure in terms of onus is, in my view,

rarely helpful. The court is frequently required to balance competing interests

(private and public). In this jurisdiction, it does so by reference to the

objectives expressed in O 1 r 4A and r 4B RSC. In an application of this kind,

the court is required to balance the fact that discovery „constitutes a very

serious invasion of the privacy and confidentially of a litigant‟s affairs”

(Harman v Secretary of State for the Home Department [1938] 1 AC 280,

308 (Lord Keith of Kinkel)) and the interests of the parties and the public in

ensuring justice is done between the parties by permitting each party open

access to all material that may be relevant to the matters being litigated.

Consequently, an application for the production of documents containing

confidential information requires both parties to address in their evidence and

submissions the various factors that the court must weight up in striking the

appropriate balance in the circumstances of the particular matter. Evidence

that does not satisfactorily establish the confidentially or irrelevance of edited

information or an adequate explanation of how the disclosure of the hidden

information is required to do justice between the parties may tip the balance

either way.”

[2012] WAMW 15


69. In respect to the DFS it is not disputed by Mineralogy that the DFS may be a

commercially sensitive and a valuable confidential document. That is precisely

the reason that Blackfin resists the disclosure of that document in the face of a

competitor who seeks to access information within the DFS that will detail its

operations in the same area that Mineralogy also operates. Blackfin maintains,

although not on affidavit, the content of the DFS contains drill results and other

commercially sensitive information. I accept that the DFS is a highly sensitive

commercial document as described by Blackfin.

70. Mineralogy seeks the DFS be disclosed in its entirety because “these chapters

may assist Mineralogy and the Court to better understand how the Subject

Tenements related to the Duchess Paradise project, and whether work has

been planned for the Subject Tenements as part of the broader project, or

whether a deliberate decision has been made to defer work on the Subject

tenements.‖ I find the submission by Mineralogy does not establish either

relevance of the DFS to the Exemptions or that the DFS is actually necessary

for the conduct of the case. That part of the DFS that has been disclosed to

Mineralogy by Blackfin under a confidentially arrangement does not make the

DFS either a document that is ―relevant‖ to the proceedings nor does it make it

―actually necessary for the conduct of the case.‖

71. In my opinion the DFS is neither ―relevant‖ nor ―actually necessary for the

conduct of the case‖ to the proceedings for the Exemptions as other evidence

may well disclose whether work had been planned on the E’s by Blackfin in

the Expenditure Years and whether a deliberate decision had been made to

defer work on the E’s. At best Mineralogy describes the use to which the DFS

could be put to as ―may assist‖ in a better understanding the manner in which

the E’s have been dealt with by Blackfin. That is not, in my opinion, sufficient

to satisfy me that the DFS should be disclosed as being either ―relevant‖ or

―actually necessary for the conduct of the case‖ because Mineralogy does not

know either and the DFS relates to another project in the vicinity of the E’s. In

those circumstances on the balance of the competing submissions by both

Mineralogy and Blackfin, I find the justice of the case tips the balance in

favour of Blackfin. Accordingly, I dismiss the application by Mineralogy for

the disclosure of the DFS by Blackfin contained in paragraph 1(f) of the

Interlocutory Application.

72. I do not intend to order that Blackfin disclose the programmes of works sought

in paragraphs 1 (a), (b) & (c) of the Interlocutory Application because I accept

from counsel for the Blackfin that all such programmes of works have been

disclosed to Mineralogy. In any event, I accept that such programmes of works

[2012] WAMW 15


are relevant to the issues between the parties in the Exemptions proceedings

and must be disclosed.

73. I do not consider, in the context of an application for the Exemptions in this

case, that the contracts sought by Mineralogy to be disclosed by Blackfin are

directly relevant to the proceedings at hand. In my opinion, any contracts

entered into by Blackfin or any of its related companies in the Expenditure

Year or subsequent or consequent years do not prove expenditure nor do they

advance any legitimate train of inquiry that may assist the case of Mineralogy

or damage the case of Blackfin. I accept the argument of Blackfin in that

regard. Mineralogy’s submission that copies of such contracts may reveal the

extent of Blackfin’s plans does not suggest the contracts are essential to the fair

and just determination of the issues in contention between the parties. For

those reason, I dismiss the application by Mineralogy for disclosure of the

contracts entered into by Blackfin or its related companies contained in

paragraph 1(d) of the Interlocutory Application.

74. I do not accept that the Statutory Declarations sought by Mineralogy is

essential to the fair and just determination of the issues in contention between

the parties. The grounds upon which the exemptions in previous years has been

applied for and granted that is sought to be established can be done by other

means than through the production by a third party of that information. In any

event, the historical Certificates of Exemption have been disclosed by

Blackfin. Any pattern of behavior by Blackfin in seeking exemptions can be

established on the evidence of the prior Certificates of Exemption that may

have been granted. For those reason, I dismiss the application by Mineralogy

for disclosure of the statutory declarations relied upon by Blackfin for prior

exemption applications contained in paragraph 1(e) of the Interlocutory

Application.

75. It follows in those circumstances that it is unnecessary to grant leave to issue a

summons to witness to the Department as sought by Mineralogy in paragraph 2

of the Interlocutory Application. For those reason, I dismiss the application by

Mineralogy for disclosure of the documents held by the Department contained

in paragraph 2 of the Interlocutory Application.

76. I find that Mineralogy has not made out its Interlocutory Application and it

will be dismissed.

[2012] WAMW 15 · Blackfin P/L v Mineralogy P/L [2012} WAMW 15 7 (d) a reference to proceedings...

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