Hunter Resources Ltd v Melville [1988] HCA 5

High Court of Australia Mason CJ Wilson(2), Dawson(3), Toohey(4) and Gaudron(1) JJ Hunter Resources Ltd v Melville (F.C. 88/003) [1988] HCA 5

Catchwords

Mining (W.A.) - Prospecting licence - Requirements - Tenement to be marked out in prescribed manner - Marking out requirement of posts at intervals not exceeding 300 metres along boundaries - Application Effect of failure to comply strictly with marking out requirement - Mining Act 1978 WA, ss 40(1), 105(1), 105A - Mining Regulations 1981 WA, reg 59

Statutes - Interpretation - Mandatory and directory provisions - Substantial compliance

Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ

1. This appeal presents an issue of some importance relating to mining titles in Western Australia. The issue in question is whether the power of a mining warden to grant a prospecting licence under s 40(1) of the Mining Act 1978 WA (the Act) is conditioned upon precise compliance by the applicant with the requirements of reg 59 of the Mining Regulations 1981 WA regulating the marking out of the land which is the subject of the application. The warden resolved the issue in the affirmative. The Full Court of the Supreme Court by majority (Brinsden and Rowland JJ., with Olney J. dissenting) rejected this view, holding that substantial compliance was sufficient. The appellant contends that the mining warden was correct.

2. Before turning to the question of law we should refer briefly to the facts and to the relevant statutory provisions. The first named respondent Brian Anthony Melville ("the respondent Melville") made application for a prospecting licence under s 41 of the Act covering 52.5 hectares of land at Mertondale. Section 40(1) provides "Subject to this Act, the warden may, on the application of any person grant to that person a licence to be known as a prospecting licence". Section 41(1) provides that an application shall be in the prescribed form and shall be accompanied by a map on which are clearly delineated the boundaries of the area of the land in respect of which the licence is sought together with a written description of the area. The application, which was accompanied by a map, described the land as follows: