High Court grants leave to appeal
In accordance with the recently introduced practice, the High Court of Australia on 10 November 2016 granted Forrest & Forrest Pty Ltd leave to appeal from the decision of the Western Australian Court of Appeal in Forrest & Forrest Pty Ltd v Wilson [2016] WASCA 116 “on the papers” and without an oral hearing of the application for leave.
The primary issue is whether the failure to lodge, at the time of the application for a mining lease, a mining proposal and mineralisation report or a mining operations statement and resource report deprives the warden of jurisdiction to make a recommendation to the Minister under s 75 of the Mining Act 1978.
In Forrest & Forrest Pty Ltd v Yarri Mining Pty Ltd [2012] WAMW 37, Warden Wilson recommended the grant of certain mining leases notwithstanding his view that Yarri failed to comply with the Act because the applications by Yarri were not accompanied by mining proposals as required by s 74(1)(ca)(i).
On an application for judicial review in Forrest & Forrest Pty Ltd v Wilson [2015] WASC 181 at [37] Allanson J held that ‘accompany’ meant the documents had to be lodged at the same time as the application, but went on to find at [48] that the lodging of those documents was not a precondition to there being an application capable of being recommended by warden for grant.
This was affirmed on appeal. McClure P (with whom Newnes JA and Murphy JA agreed) “concluded that: (1) the requirement in s 74(1)(ca)(ii) of the Act that the mining operations statement and mineralisation report be lodged contemporaneously with the application is not a condition precedent to the existence of the jurisdiction of the warden to hear the application under s 75(4) of the Act; (2) non-compliance with the requirement to lodge the s 74(1)(ca)(ii) documents contemporaneously with the application does not otherwise invalidate the warden's hearing or recommendations; (3) the failure to lodge a mining operations statement at all does not invalidate the warden's hearing or recommendations; and (4) unless and until the Director has provided a s 74A report based on an applicant's mineralisation report, the warden will have no jurisdiction to hear or determine the application.
The hearing before the Full Court of the High Court will occur in due course.