Wade v Burns [1966] HCA 35

High Court of Australia Barwick C.J. McTiernan, Taylor, Menzies and Owen JJ. Wade v Burns [1966] HCA 35

ORDER Appeal allowed with costs. Order of Supreme Court be set aside and in lieu thereof order that a writ of mandamus issue out of the Supreme Court directed to the respondent, Telford Patrick Basil Burns, commanding him to consider and deal with the appellant's application for an authority to enter in and upon the private lands of the respondents Frederick Charles Hughes, Peter James Prichard, Jessie Hughes, Hector James Robertson and Ena Frances Robertson mentioned in such application according to law, and order that the appellant's costs of the application in the Supreme Court for a writ of mandamus be paid by the respondents other than the said Telford Patrick Basil Burns.

Cur. adv. vult.

The following written judgments were delivered:—

May 20 Barwick C.J.

The respondent Burns (the warden) is a mining warden appointed under and for the purposes of the administration of the Mining Act, 1906-1963, of the State of New South Wales (the Act): s. 6. The appellant is an applicant for an authority to enter private lands to search for zircon, rutile and ilmenite, substances which have been declared to be minerals for the purposes of the Act. The respondents Frederick Charles Hughes, Peter James Prichard, Jessie Hughes, Hector James Robertson and Ena Frances Robertson (the owners) were at all relevant times the owners and occupiers of the lands the subject of the appellant's application for authority to enter (the said land). The title to the said land did not reserve to the Crown rutile, zircon or ilmenite. Though minerals within the meaning of the Act, they are therefore privately owned minerals for its purposes. The respondent New South Wales Rutile Mining Co. Ltd. (the company) is a company which, after the lodging of the appellant's application, entered into an agreement with the owners under which they granted to the company, "subject to the provisions of the Act", the exclusive right and authority to enter upon the said land and to carry on mining operations thereon for a term of years for the purpose of winning rutile, zircon and other privately owned minerals. At the date of the hearing by the warden of the appellant's application, the company was in fact carrying on mining operations for such minerals upon the land. Some four years before the appellant lodged his application for authority to enter, an agreement had been made between the owners and the appellant and another by which the appellant and that other had been granted an exclusive right of entry and of mining the said lands for a period of five years for the said minerals. The appellant and his co-contractor had carried on such operations for about one year until the price of rutile made the operations uneconomic. Such operations were not thereafter resumed but, although the agreement was thus in default, the owners did not actually terminate it. It was common ground between the parties before this Court that at the date of the lodgment of the appellant's application for authority to enter, the said agreement was still on foot and that the other contractor was still entitled to the benefit of it.