Wall v Windridge[1997] QCA 408

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4615 of 1997.

Brisbane

[Wall v. Windridge & Ors]

BETWEEN:

LLOYD EDWARD CHARLES WALL

(Applicant) Appellant

AND:

FRANCIS WINDRIDGE

(First Respondent) First Respondent

AND:

THOMAS GILMORE

(Second Respondent) Second Respondent

AND:

SOUTH BLACKWATER COAL LIMITED

(Third Respondent) Third Respondent

Pincus J.A.

Moynihan J.

Ambrose J.

Judgment delivered 11 November 1997

Joint reasons for judgment of Moynihan and Ambrose JJ, separate reasons for judgment of Pincus J.A., all concurring as to the orders made.

1. APPEAL ALLOWED.
2. ORDERS OF PRIMARY JUDGE NUMBERED 2 AND 3 SET ASIDE.
3. RECOMMENDATION OF FIRST RESPONDENT MENTIONED IN THE APPLICATION FILED ON 7 MARCH 1997 QUASHED.
4. THE APPLICATION OF 22 APRIL 1996 MADE BY THE THIRD RESPONDENT AND THE APPELLANT'S OBJECTION, DEALT WITH BY THE QUASHED RECOMMENDATION, ARE REFERRED TO THE WARDENS COURT TO BE REHEARD.
5. DIRECT THAT THE SAID REHEARING TAKE PLACE BEFORE A WARDEN OR ACTING WARDEN OTHER THAN THE FIRST RESPONDENT.
6. DIRECT THAT AT THE SAID REHEARING, THE EVIDENCE GIVEN AND TENDERED AT THE HEARING ON 14 AND 15 OCTOBER 1996 BEFORE THE FIRST RESPONDENT MAY BE CONSIDERED AS PART OF THE MATERIAL.
7. PARTIES TO MAKE CONCISE WRITTEN SUBMISSIONS AS TO THE ORDERS FOR COSTS, HERE AND BELOW, AS FOLLOWS:

(A) INITIAL SUBMISSIONS BY ALL PARTIES WITHIN 7 DAYS;

(B) ANY SUBMISSIONS IN REPLY, WITHIN 14 DAYS.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4615 of 1997.

Brisbane

Before Pincus J.A.

Moynihan J.

Ambrose J.

[Wall v. Windridge & Ors]

BETWEEN:

LLOYD EDWARD CHARLES WALL

(Applicant) Appellant

AND:

FRANCIS WINDRIDGE

(First Respondent) First Respondent

AND:

THOMAS GILMORE

(Second Respondent) Second Respondent

AND:

SOUTH BLACKWATER COAL LIMITED

(Third Respondent) Third Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 11 November 1997

This is an appeal from a judgment of the Supreme Court in an administrative law case;  the learned primary judge dismissed an application to review a decision of the first respondent (the Warden) to recommend the grant of a mining lease to the third respondent, South Blackwater Coal Ltd (SBCL).  It applied for the grant on 22 April 1996 and the appellant lodged, as the relevant statute contemplated, a detailed objection to the grant on a number of grounds.  The appeal concerns two of those grounds, numbers 2 headed "Excessive Area" and 4 headed "Spread of Noxious Weeds".  The application to review the recommendation complained, in effect, that after the conclusion of the hearing of the appellant’s objections the Warden received further information from SBCL relevant to the appellant’s objections, did not tell the appellant that he had received that information and acted upon it in making his recommendation, without having given the appellant an opportunity to be heard in relation to it;  there were other grounds taken, but none of those is now pressed.

The application for a lease was made under s. 234 of the Mineral Resources Act 1989 which empowers the Governor in Council to grant a mining lease for certain purposes;  the mining lease sought by SBCL is one of a kind mentioned in that section.  There is provision in s. 260 for lodgment with the Mining Registrar of an objection to the grant of a mining lease and the objection is to state the grounds (subs. 3).  Under s. 265 the Mining Registrar fixes a date for the hearing by the Wardens Court of the application and any objections, and s. 268 requires the Wardens Court to hear the application and objections on that date.  Under s. 268(2) the hearing is to be open to the public.  Section 268(3) reads as follows:

"At a hearing pursuant to subsection (1) the Wardens Court shall take such evidence, shall hear such persons and inform itself in such  manner as it considers appropriate in order to determine the relative merits of the application, objections (if any) and other matters and shall not be bound by any rule or practice as to evidence."

By subs. (4) the Wardens Court is confined, as to objections, to entertaining those contained in an objection duly lodged;  in the present case the appellant has no difficulty with that requirement.

Under s. 269(1), upon the hearing by the Wardens Court of all matters in respect of an application for the grant of a mining lease, the Warden must forward to the Minister any objections, the evidence adduced at the hearing, any exhibits and the warden’s recommendation.  Section 269(2) requires that the recommendation include a recommendation to the Minister that the application be granted or rejected in whole or in part.  Section 269(4) sets out a list of matters which the warden is to take into account and consider when making a recommendation;  the objections I have mentioned above - relating to excessive area and spread of noxious weeds - are covered by paragraphs in s. 269(4).

Under s. 271 every recommendation made by a warden in respect of an application for a grant of a mining lease is to be considered by the Minister who, after taking into account the matters specified in s. 269(4) - just mentioned - may recommend the grant of a lease, reject the application, or direct the Wardens Court to hold a hearing or further hearing.  I note that there is no provision saying that the Minister may himself solicit and receive further evidence and submissions relevant to the objections received.  The grant of a mining lease may, by virtue of s. 276, be subject to conditions as to various specified matters and to "such other conditions as the Governor in Council determines":  s. 276(1)(p). 

There is no reference in the statute to the question whether or not the Wardens Court is bound by the rules of natural justice, but ordinarily one would expect it to be so bound.  The recommendation to the Minister that a lease be granted does not in itself affect the rights of an objector, but may and in the ordinary course no doubt would lead to the grant of a lease which, in respect of an objector such as the appellant, would be likely to involve a substantial interference with his rights as owner of property subject to the lease.

It was I believe suggested for the respondent that the terms of s. 265(3), quoted above, and in particular the reference to the Wardens Court informing itself in such manner as it considers appropriate might assist SBCL;  as I have mentioned, the complaint is that the Warden held, in effect, a further inquiry into the appellants’ objection, after the hearing concluded.  The terms of s. 268(3), in truth, tend against the respondent’s suggestion.  It will be noted that the informing of the Court "in such manner as it considers appropriate" is one of the duties to be performed, not before or after the hearing on the date fixed under s. 268(1), but at that hearing.

The hearing may of course be adjourned (s. 268(6)) but that is not what happened here.  Without reaching a firm conclusion as to what constraints are placed on the warden by the terms of s. 268(3), I express the view that it does not contain any language encouraging the notion that, after the hearing concludes, the warden may further pursue the task of gathering information about the issues then raised before him.

In R v. The Mining Warden at Maryborough and Queensland Titanium Mines Pty Limited;  ex parte Sinclair [1975] Qd.R. 235, a case decided under the Mining Act 1968, remarks were made in the Full Court that suggest that the requirements of natural justice were, if they had any application at all, of limited application when the warden was considering whether or not to recommend the grant of a lease.  Lucas J, with whom Hanger CJ agreed, remarked:

"As to the second branch of the argument, it seems to me, first, that the warden’s function in hearing an application and objection is somewhat limited.  He is required only to make a recommendation to the Minister;  there is nothing in the Act or regulations which would require him to communicate to the parties the reasons for his recommendation, nor, in my opinion, is there any principle of natural justice which would require him to state his reasons. " [241]

However the actual decision in that case, which was that mandamus directed to the mining warden should be refused, was reversed by the High Court:  Sinclair v. Mining Warden at Maryborough (1975) 132 C.L.R. 473.  Barwick CJ gave reasons which are hard to reconcile with the idea that the rules of natural justice have no application or only limited application to the function under consideration;  his Honour remarked:

"It is to my mind very important that the hearing of an application and of objections thereto by a mining warden take place according to law.  The purpose of notifying the making of the applications, indicating the time for objections and of the date of hearing, is to afford the applicant on the one hand an opportunity to justify in a public hearing the granting of a mining lease, both in point of area and in point of term, and also to give the public an opportunity of opposition supported by evidence to the grant of a mining lease." (481)  (emphasis added)

The statute considered in these cases differed in no significant way, so far as the present issue is concerned, from the Mineral Resources Act 1989.

Then in R v. Windridge, ex parte  Pacific Coal Pty Ltd [1992] 2 Qd.R. 180, a decision under the current mining statute, the Full Court of the Supreme Court again had to consider a submission that natural justice had been denied before the warden.  One of the parties complained that it was not afforded a right to be heard and Thomas J, with whose reasons the other members of the Court agreed, said:

"It therefore seems that the warden, no doubt quite unwittingly, denied natural justice to the objectors by depriving them in part of their right to be heard on that question, which in the event was the basis upon which the warden decided the application.  It is not a case where one could safely conclude that the completion of such submissions could have made no difference to the outcome . . . "  (191)

A writ of mandamus was issued directing the Warden to hear and determine the applications according to law.

It appears to follow that the Warden, in fulfilling his function under s. 268 of the Mineral Resources Act 1989, was obliged to comply with the principles of natural justice, which required him to afford the appellant a reasonable opportunity to press his case as an objector and to answer any evidence which might be put forward in an endeavour to induce the Warden to decide against his objections.

In the present case only two of the grounds of objection are presently in issue and it is necessary to consider only one of them;  this is not to say that the appellant’s argument with respect to the other ground of objection has no substance.  The ground with which it is proposed to deal is that under the heading "Excessive Area", being the second ground in the form of objection;  it is there stated in effect that a substantially greater area of the appellant’s land is the subject of the lease application than is necessary for the proposed mining project;  that theme is then briefly developed.  According to the argument advanced on behalf of SBCL, but limited information was supplied with the application for the mining lease with respect to the detail of "for example, the location within the lease area of the pre-strip dumps".  A plan showing the proposals of SBCL was produced by Mr D J Hill, in response to ground no. 2 of the objection;  that became exhibit "DJH 8" to an affidavit Mr Hill made;  Mr Hill was cross-examined on that exhibit before the Warden.  Mr Lennon QC, who led Mr P Ambrose for SBCL before us, drew our attention to the following question and answer in the examination-in-chief of the appellant before the Warden, which took place after the cross-examination of Mr Hill to which I have referred:

Q:  "Alright, let’s go to your objection at . . . the first thing that you wanted to object about was the excessive area of the land taken.  When this objection was done you had no idea of the proposed spoil dumps that we’re now told about today will take up a lot of the country."

A:   None at all."

Mr Lennon pointed out that the appellant gave no further evidence about that ground of objection, which was not the subject of discussion in the address made to the Warden on behalf of the appellant.  Mr Lennon also drew attention to a passage in the address of Mr Ambrose who appeared for SBCL before the Warden, dealing with the area of the lease:

"The question of the size and shape although that was part of an objection it was clear that perhaps by inference that if they had know (sic) that the spoil dumps were going to be there then they wouldn’t have made that objection.  It doesn’t seem to have been pursued with any great vigour in the face of the existence of those spoil dumps."

It was not contended on behalf of SBCL that the relevant ground of objection was abandoned, but Mr Lennon said it had ceased to be a "live issue".

The principal difficulty with that submission is the evidence which Mr Hill gave about events which occurred after the conclusion of the hearing.  Mr Hill deposed (para. 67 of his affidavit, read before the primary judge) that he saw a fax from a Mr Cameron Pocknee sent on behalf of the Warden and addressed to one Mark Garrahy.  The body of the fax reads as follows:

"It is understood that the current lease application (MLA70139) was formulated after considering the area necessary for effective and efficient mining of the coal resource.  In order that a decision be made with respect the area and shape of MLA70139, a range of alternate conceptual landform designs and costing for these options should be prepared.  It is requested on behalf of the Mining Warden that you prepare this information prior to the end of November at which time it is hoped that a site visit can be organised to further discuss the issue with relevant personnel."

Mr Hill gave evidence, the details of which are of no present relevance, of the consideration which Mr Hill gave to the issues raised by the letter;   he also said that on 20 November 1996 he asked Mr Pocknee to explain "what he wanted from his letter".  The affidavit then proceeds as follows:

"73.He said words to the effect of "the Warden wants to be satisfied as to the size and shape of the dumps.  He wants to be satisfied that the volumes needing to be dumped justify the size of the dumps.  He wants to come for another inspection."

. . .

74. As best I recollect we did not then arrange an inspection date and it was some time later that some other employee of SBCL told me it would take place at 9.00 a.m. on 27 November, 1996.  I assumed (wrongly as it turned out) that this was some sort of all day inspection and I warned SBCL staff to be ready to provide lunch.
75. As it turned out the Warden and Mr Pocknee came and stayed for no more than about an hour and did not inspect the proposed mine lease again.  They met me and spoke to me in the SBCL administration office.  The only other persons present were Gabriel Gyuris and Mark Garrahy.

. . .

78. We did not spend much time talking about the parthenium.
79. We spent more time talking about the dumps.
80. Prior to the meeting I had looked at the study done in late 1994 and I had identified in that study some numbers which showed volumed (sic).  I photocopied some pages with those numbers and had them with me when meeting with the Warden and Mr Pocknee and attempted to summarise them.
81. The Warden said to submit these figures and tables to the Department of Mines & Energy.  I agreed to do so.  I believe that a surveyor or mining engineer in the Department of Mines and Energy or some other experienced person would be able to understand the figures and tables.  The figures and tables and the covering letter confirmed in writing but in much more detail what I had said at the meeting."

It seems clear from para. 73 that the Warden was by no means treating the question of the size of the lease as a dead issue;  on the contrary, he wished to be satisfied that the volumes requiring to be dumped justified the size of the dumps, they being a substantial part of the area said to be required for the lease.  Then, remarkably, a meeting was arranged at the office of SBCL at which the Warden and Mr Pocknee attended and an hour’s discussion took place;  the appellant was not invited.  From para. 78 it appears that one topic discussed was parthenium, that being the subject of an objection I have mentioned, and the other topic (para. 79) was the dumps.

It appears to me to have been an unfortunate procedure to have a meeting with one of the contending parties to discuss, inter alia, the question whether so much land as the lease application sought was really necessary for the purposes of SBCL - the very point of the objection.  One would have thought, with respect, that it would have occurred to someone that the propriety of doing all this in the absence of the appellant objector was dubious.

On the following day, Mr Hill says, he sent two letters to Mr Pocknee, one of which dealt with parthenium and the other with the pre-strip dumps;  the latter became DJH19.  It is a substantial document giving detailed information of various kinds relating to the subject sufficiently indicated by the heading to the text: "RE:  SIZE AND SHAPE OF ‘SOUTH MARSHMEAD’ PRE-STRIP DUMPS".  "South Marshmead" is the name of the area proposed to be leased.  The letter concludes:

"In conclusion, it is considered that everything possible is being done to limit the external dump size and that the dump location is effectively fixed by constraints related to economics, mining geometry and environmental management."

This letter from SBCL was not sent to the appellant until after the Warden had decided the application.

In summary, the appellant raised an objection that the area sought for the lease on his property was unnecessarily large and that depended, at least in part, on whether areas sought for what were called "pre-strip dumps" were larger than necessary;  being apparently dissatisfied with the information supplied on that subject, the Warden had the applicant for the lease, SBCL, informed about the problem and in consequence of that a substantial discussion took place at SBCL’s office and substantial information was later supplied to the Warden, without any reference to the appellant objector.

Mr Lennon made strenuous efforts to defend this process as being essentially harmless.  He submitted, as I understood him, that the excessive area point was of no real consequence.  He argued that before the primary judge the appellant could have produced evidence as to the submissions, cross-examination or other steps he would have engaged in had the Warden given him an opportunity of being present when there was, in effect, a further hearing dealing with the area of the lease and when further evidence was submitted in relation to that subject.  That the Court does not have before it evidence along the lines mentioned may be a factor to be taken into account in determining whether, as Mr Lennon contended, the Court should in the exercise of its discretion refuse the appellant relief, in order to avoid making a futile order.   But it does not seem to be essential for parties complaining of not having been given a fair opportunity to contest an issue to go into detail as to what questions they might have asked, or evidence they might have adduced, if not so treated.  For example, in Kioa v. West (1985) 159 C.L.R. 550, where prospective deportees were given relief against a deportation order on the ground that they had been given no opportunity to deal with matters adverse to their interests which had been placed before the decision-maker, the appellants did not, it appears, prove what they would have put forward.  Nevertheless, they succeeded; the same may be said of the 1992 mining case referred to above, R v. Windridge.

If the objection which made the size of the dumps relevant, namely whether an excessive area was sought, was really of no consequence, as Mr Lennon appeared to suggest, there would no doubt be ground for refusing relief;  but the contention that the issue was dead appears to be without substance.  Not only did the Warden specifically, through Mr Pocknee, request further information on that subject and go to SBCL’s office to talk about it, he dealt with the issue in a passage in his report and recommendation, at pp. 12 and 13.  The Warden there discussed the objection taken on the ground that the area sought was excessive and went on:

"The evidence of Hill relates to the need to take the application area for mining and other purposes.  (t/s p. 62).  This is a matter that I raised with Hill at the hearing, and post hearing I have sought further information in relation to the actual capacity and location of the dump strips.  I am satisfied that the area taken is required for the purposes stated and is not excessive."

So there can be no doubt that the Warden regarded the question as one he had to consider seriously, nor is there doubt that he took into account the further information supplied to him, ex parte.  In this respect the case is stronger for the appellant than Kioa v. West (above).  In that case the ground of the appellants’ success was an allegation in para. 22 of a certain statement furnished to the decision-maker.  Of that, Wilson J remarked (p. 603):

"In any event, it is not necessary to show that the allegation contained in par. 22 did work to the prejudice to Mr and Mrs Kioa.  It is enough to show that the way was open for it to do so . . . "

We were urged by Mr Lennon, in effect, not to take too pedantic an attitude, but to look at the matter broadly and consider whether there was any real unfairness.  In my opinion, one would not have to be of a very technical disposition to regard it as unfair to treat the appellant in the way I have described:  when the material and submissions put forward at the hearing with regard to the subject of an objection were thought to be of doubtful adequacy, to solicit and obtain substantial written and oral submissions, in the absence of the objector, on that subject and then decide the point against him, taking into account material which he had had no opportunity to consider or answer.  The objection process gives property owners such as the appellant a chance to stop, or minimise the effect of, proposed mining activities on their land;  confidence in that process would diminish if we were too readily to accept the suggestion that no harm is done, where submissions and evidence relevant to the objection are made to the warden, but concealed from the objector.

It was also argued that the appeal should be dismissed on the basis that the function of the warden was recommendatory;  that the Minister has to consider the recommendation made and may reject it;  and that the appellant might in effect pursue his objection before the Minister.  In my opinion the fact that the warden’s function is merely recommendatory is no objection to the grant of relief to the appellant.  The same point was perhaps available in Sinclair’s case, referred to above, as well as in argument in Windridge referred to above.  And in Hot Holdings Pty Ltd v. Creasy (1996) 185 C.L.R. 149, where this same point was discussed at some length, a majority of the High Court came to a conclusion which does not assist the respondents’ contention.  The Full Court of the Supreme Court of Western Australia had held that under the corresponding legislation of that State certiorari was not available to quash a warden’s recommendation to the Minister;  the High Court took the contrary view.  After considering, inter alia, Brettingham-Moore v. St. Leonards Municipality (1969) 121 C.L.R. 509 at 522, the majority concluded that:

"A preliminary decision or recommendation, if it is one to which regard must be paid by the final decision-maker, will have the requisite legal effect upon rights to attract certiorari." (165)

Although the legislation there in question in some respects differs from that with which we are concerned and the relief sought was certiorari, the Hot Holdings case supports the conclusions, which I adopt, that an objector is entitled to insist upon observance of fair procedure before the warden, as this appellant has sought to do, and that if fair procedure is not accorded before the warden, the objector is not confined to the possibility of seeking to place evidence or submissions before the Minister - assuming, without deciding, that the latter course would have been open to the appellant.  The appeal must be allowed.

It was contended on behalf of SBCL that if the appeal were allowed the matter should go back to the Wardens Court to be heard by the same warden, the first respondent.  When the Judicial Review Act 1991 (Qld) was enacted a practice had developed in the Federal Court, under the corresponding Federal legislation to remit the matter to a differently constituted tribunal, where that seemed fairer to the parties:  see for example Northern NSW FM Pty Ltd v. Australian Broadcasting Tribunal (1990) 26 F.C.R. 39.  That was, it appears done, by regarding "the person who made the decision" in s. 16(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cwth) as the tribunal, not the individual constituting the tribunal.  It would of course, in some circumstances (but not in this) be absurd to remit the matter to be heard by the very same person whose conduct has been called in question.  Here, while there is no reason to doubt the impartiality of the Warden it seems plain that justice would more clearly appear to be done if a direction were made requiring that another person constitute the Wardens Court for the purposes of the rehearing.  It should also be mentioned that we were told that a party or parties wished to raise questions about the proper order for costs;  it will be necessary to provide for us the making of submissions on that subject.

The orders will be as follows:

1. Appeal allowed.
2. Orders of primary judge numbered 2 and 3 set aside.
3. Recommendation of first respondent mentioned in the application filed on 7 March 1997 quashed.
4. The application of 22 April 1996 made by the third respondent and the appellant's objection, dealt with by the quashed recommendation, are referred to the Wardens Court to be reheard.
5. Direct that the said rehearing take place before a Warden or acting Warden other than the first respondent.
6. Direct that at the said rehearing, the evidence given and tendered at the hearing on 14 and 15 October 1996 before the first respondent may be considered as part of the material.
7. Parties to make concise written submissions as to the orders for costs, here and below, as follows:

1. initial submissions by all parties within 7 days;
2. any submissions in reply, within 14 days.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4615 of 1997.

Brisbane

Before Pincus J.A.

Moynihan J.

Ambrose J.

[Wall v. Windridge & Ors]

BETWEEN:

LLOYD EDWARD CHARLES WALL

(Applicant) Appellant

AND:

FRANCIS WINDRIDGE

(First Respondent) First Respondent

AND:

THOMAS GILMORE

(Second Respondent) Second Respondent

AND:

SOUTH BLACKWATER COAL LIMITED

(Third Respondent) Third Respondent

JOINT REASONS FOR JUDGMENT - MOYNIHAN and AMBROSE JJ.

Judgment delivered 11 November 1997

This is an appeal from a decision of a single judge of the Supreme Court dismissing an application to review a decision by a Mining Warden’s Court constituted by the first respondent to recommend the grant of a mining lease to South Blackwater Coal Ltd (the third respondent).  We agree with the reasons of Pincus J.A. and the orders he proposes but wish to make the following observations.

South Blackwater applied for the grant of a mining lease on 22 April 1996 and the statutory procedure provided for by the legislation was then followed.  Put shortly there was public notification and the appellant objected to the grant of the lease on a number of grounds.  The Warden’s Court was then bound to hear the application, objections and all other matters required to be heard and considered or determined by the Act and to determine “the relevant merits of the application, objections and other matters . . .”;  s. 268(1)(iii).  The Act provides that the Warden’s Court make recommendations to the Minister which the Minister is obliged to take into account in recommending to the Governor-in-Council in respect of the grant or refusal of a lease; s. 271 of the Act. 

There was a hearing in the Warden’s Court at which the appellant was represented and gave evidence and the court made its recommendations. 

Although the proceedings in the Warden’s Court and before the primary judge were wide ranging, this appeal falls to be disposed of on a narrow basis.  Two of the objections raised by the appellant were  that the area over which the lease was sought was excessive; a consideration material to this was the area required for pre-strip dumps.  Secondly, the appellant objected that there was a risk that mining operations would bring about the spread of noxious weeds, particularly parthenium, to his grazing land.

It is plain that the question of the area of the lease and of weed control were material to the determination by the Warden’s Court of its recommendations and for the Minister in considering the recommendations to be made to the Executive Council; ss. 269(4)(b)(j)(l)(m) and s. 271 of the Act.   That the third respondent (he constituted the Warden’s Court) appreciated this is demonstrated by his requesting further information from South Blackwater in respect of  the two matters after the hearing had concluded.  He appears to have done so through an officer of the Department rather than through the Registrar of the Warden’s Court which is itself unfortunate.  In any event, as a consequence of these steps, the Warden attended at the office of South Blackwater, spoke with officers of the company and procured them to forward figures and tables bearing on the issues of the areas of the lease and information about weed control to the Department.  This was done by correspondence directed to the officer of the Mines Department referred to earlier.  One of the letters at least did more than simply convey information because it concluded–

“It is considered that everything possible is being done to limit the external dump size and that the dump location is effectively fixed by constraints related to economics, mining, geometry and environmental management.”

It is clear that the Warden’s Court acted on information acquired after the hearing because the report containing the recommendations say that it did; in dealing with the issue of the area the subject on application for lease, the report said–

“The evidence of Hill relates to the need to take the application area of the mining in other purposes . . This is a matter that I raised with Hill at the hearing and post-hearing I have sought further information in relation to the actual capacity and location of the dump strip.  I am satisfied that the area taken is required for the purpose stated and is not excessive.”

Hill was a technical service manager employed by South Blackwater, he appears to  have had carriage of the application on its behalf.  He gave evidence before the Warden’s Court, was present at and provided information to the Warden concerning both the issues mentioned earlier at the post-hearing meeting and he signed the subsequent correspondence providing further information. The appellant did not learn of the activities of the Warden’s Court and South Blackwater subsequent to the hearing by which the Court acquired and acted on information until the Warden’s Court delivered its report and recommendations.

The course of events clearly violated the rule of natural justice that a decision maker is to hear a person before making a decision affecting that person.

Although the decision of the Warden’s Court is a recommendation, as has been demonstrated earlier, it is a necessary step in obtaining a mining lease and so subject to the rules of natural justice referred to above.  That it was seems to have been established as long ago as Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 particularly per Barwick J.  at 481.  The Full Court of the Supreme Court concluded to this effect in R v Windridge ex parte Pacific Coal Co. Pty.  Ltd.  (1992) Qd.R. 180.  The decision of the Warden’s Court is not “purely recommendatory” c.f. Ainsworth (1992) 175 CLR 564 but within the category to which the rules of natural justice apply; Hot Holdings Pty Ltd v. Creasy (1995-96) 185 CLR 149.  It is not necessary to establish that the deprivation of natural justice was to the prejudice of the appellant; Kioa v West (1984) 159 CLR 264.

The appellant, in the event of being successful, sought an order that the matter be remitted to a differently constituted Warden’s Court.  That was resisted by the respondent apparently on the basis that some delay might be involved.  In the present case, the breach of the rules of natural justice has meant that the Mining Warden’s Court in deciding adversely to the appellant, acted on material acquired after the hearing without the appellant having had an opportunity to deal with it.   In order that confidence in the system put in place by the Legislature in the Mineral Resources Act 1989 is maintained, it is in our view necessary that another person constitute the Warden’s Court to rehear the matter.