Warden rules no application for exemption can be made

In Carnegie Gold Pty Ltd v George Victor Brewer [2017] WAMW 7 the warden answered a preliminary question posed by the parties concluding: “… on a proper construction of the Mining Act, that the holder of a mining tenement may not apply for and be granted a Certificate of Exemption in circumstances where a Form 5 expenditure report has recorded an expenditure of an amount which exceeds the minimum expenditure for the commitment for the relevant year.”

On 6 February 2015 Carnegie Gold Pty Ltd lodged Form 5s for two mining leases claiming expenditure in excess of the annual commitment. On the same day Carnegie Gold Pty Ltd applied for exemption from expenditure in respect of the same tenements for the same expenditure year. Brewer brought applications for forfeiture and lodged objections to the exemption applications. Brewer then brought an interlocutory application seeking that the exemption applications be dismissed on the basis that they were an abuse of process.

The warden referred to Lord Wensleydale’s well known  “golden rule” of statutory interpretation in Grey v Pearson (1857) 6 HLC 61 at 106; (1843-1860) All ER Rep 21 at 36 that “in construing wills, and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity or inconsistency, but no further” and held that it would be an absurd interpretation of the word ‘exemption’ to suggest that you could be exempt from spending money you have already spent. 

The warden considered that on “a plain common-sense reading of the Act” an amount could not be specified in the exemption application for which exemption is sought when the tenement holder has submitted a Form 5 certifying that expenditure obligations have been met.

It would seem to follow that if a tenement holder holds a tenement with an expenditure obligation of say $10,000 and reports expenditure of say $6,000, the tenement holder could only apply for and obtain an exemption of $4,000.