Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30

Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30

Non-compliance with the requirement that a mineralisation report accompany an application for a mining lease under s 74(1)(ca)(ii) of the Mining Act 1978 (WA) is a failure to perform an essential condition precedent. Such non-compliance goes to jurisdiction and is fatal; the warden lacks jurisdiction to hear the application, and the Minister lacks power to grant the lease. The statutory scheme requires strict compliance with procedural preconditions, and contrary arguments relying on general concepts of waiver or ministerial discretion are not supported by the legislative text or settled authority. Therefore, the purported reports and recommendations to the Minister were invalid and...

Parties
Appellant: Forrest & Forrest Pty Ltd; Respondents: Stephen McKenzie Wilson & Ors; Amicus: Attorney-General for the State of Western Australia (amicus curiae)
Jurisdiction
Australia
Judgment Date
17 August 2017
Procedural Posture
Appeal / High Court Appeal From the Supreme Court of Western Australia – Judgment
Outcome
Appeal allowed (by majority); orders of the Court of Appeal set aside; declaration that first respondent lacked jurisdiction and invalidity of reports; costs orders as specified.
Legal Topics
Statutory Requirements for the Grant of Mining Leases, Conditions Precedent, Compliance With Statutory Procedures, Jurisdictional Error, Indefeasibility of Mining Tenements
Mining Law Administrative Law Statutory Interpretation Statutory Requirements for the Grant of Mining Leases Conditions Precedent Compliance With Statutory Procedures Jurisdictional Error Indefeasibility of Mining Tenements

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Parties

Forrest & Forrest Pty Ltd

Appellant

Stephen McKenzie Wilson & Ors

Respondents

Attorney-General for the State of Western Australia (amicus curiae)

Amicus

Procedural Posture

Appeal / High Court Appeal From the Supreme Court of Western Australia – Judgment

Legal Issues

  1. 1 Whether non-compliance with s 74(1)(ca)(ii) of the Mining Act 1978 (WA) — failure to lodge a mineralisation report contemporaneously with the application — invalidates the warden’s jurisdiction and Minister’s power to grant a mining lease
  2. 2 Whether the statutory regime makes contemporaneous lodgement a condition precedent to jurisdiction/recommendation/grant
  3. 3 Whether such requirements are essential and mandatory or capable of being waived or cured

Ratio Decidendi

Non-compliance with the requirement that a mineralisation report accompany an application for a mining lease under s 74(1)(ca)(ii) of the Mining Act 1978 (WA) is a failure to perform an essential condition precedent. Such non-compliance goes to jurisdiction and is fatal; the warden lacks jurisdiction to hear the application, and the Minister lacks power to grant the lease. The statutory scheme requires strict compliance with procedural preconditions, and contrary arguments relying on general concepts of waiver or ministerial discretion are not supported by the legislative text or settled authority. Therefore, the purported reports and recommendations to the Minister were invalid and...

Court Disposition

Appeal allowed (by majority); orders of the Court of Appeal set aside; declaration that first respondent lacked jurisdiction and invalidity of reports; costs orders as specified.

Orders

  • Order that the appeal be allowed.
  • Orders of the Court of Appeal of the Supreme Court of Western Australia made on 7 July 2016 and 2 September 2016 are set aside.