Kenda v Andrea [1966] HCA 62; (1966) 115 CLR 519 (14 October 1966)

HIGH COURT OF AUSTRALIA

KENDA v. ANDREA [1966] HCA 62; (1966) 115 CLR 519

Mining (S.A.)

High Court of Australia
Barwick C.J.(1), McTiernan(2), Taylor(3), Windeyer(4) and Owen(5) JJ.

CATCHWORDS

Mining (S.A.) - Precious stones claim - Necessity for square - Mining Regulations (S.A.), regs. 24, 37.

CATCHWORDS

Mining (S.A.) - Forfeiture - Non-compliance with working conditions - Working of claim restrained by Supreme Court - Mining Act, 1930-1962 (S.A.), s. 36 (1) - Mining Regulations, reg. 38.

CATCHWORDS

Mining (S.A.) - Pegging not conforming with legislation - Effect - Mining Act, 1930-1962 (S.A.) - Mining Regulations.

HEARING

Adelaide, 1966, September 27;
Melbourne, 1966, October 14. 14:10:1966
APPEAL from the Supreme Court of South Australia.

DECISION

October 14.
The following written judgments were delivered: -
BARWICK C.J. The appellant in 1965 made application to a mining warden of grounds and seeking an order declaring and enforcing such forfeiture. The precious stones claim had been pegged by the respondent in consequence of an order of the mining warden pursuant to s. 37 of the Mining Act, 1930- 1962 (S.A.) forfeiting the claim in the hands of a prior owner upon the ground of non-compliance with labour conditions. (at p522)

2. The mining warden dismissed the appellant's application. From his decision an appeal was brought to the Supreme Court of South Australia pursuant to s. 22 of the Mining Act. It was heard and dismissed by the primary judge. The appellant appealed to the Full Court. His appeal was dismissed. He now appeals to this Court. Upon this appeal he has submitted that two of the grounds upon which he sought the forfeiture of the claim have been erroneously rejected. (at p523)

3. First, he submits that as the area pegged by the respondent as a precious stones claim was not substantially square, it was liable to forfeiture, and that an order declaring it forfeited should have been made. Secondly, he submits that, as is the fact, labour conditions were not performed upon the claims by the respondent as required by the Mining Act and the regulations made thereunder for a period before the date of his application. Consequently, as no certificate of suspension of such conditions was at any time granted by the mining warden, the appellant claims that upon proof of those facts he was entitled to an order declaring and eenforcing the forfeiture (s.37). (at p523)

4. As to the first submission, failure to peg a claim conformably to the Mining Act and regulations results in a failure by the person to obtain ownership of a claim. Such a pegging is ineffective and leaves the way open to someone else to peg a claim which would include at least part of the area within the limits of the ineffective pegging. The mining warden could no doubt decide a contest between the persons who each claimed a tenement in the same area of land, determining in the course of the case whether or not the first pegging did conform to the Mining Act and regulations: s. 16 of the Mining Act. If he found that it did not, he could hold the second pegging to have validly created ownership and make the appropriate consequential orders. This it seems to me he could do, even though the person first pegging the area had registered his claim as provided by reg. 25A. Failure to register is attended by consequences (see reg. 27) but no investing effect appears to be given to registration itself. But if there is a person in possession of an ineffectively pegged claim, another may not forcibly enter to peg a claim within the area so in possession. Regulation 267 would preclude such a course. In that event, the person desiring to peg a claim conformably to the Mining Act and regulations could apply to the mining warden for a declaration that the person in possession was not lawfully there and for appropriate consequential orders. In my opinion, the reasoning in Barlow v. Hayes (1867) 4 W W & A'B (M) 67 would be applicable. By-law 84 made under the Victorian Mining Statute 1865 (by-laws gazetted on 26th October 1866) corresponds in substance to a combination of s. 16 of the Mining Act and Mining Regulation 267. But the appellant does not seek to peg an area different to that pegged by the respondent nor was his application to the mining warden an application asking only a declaration of the invalidity of the pegging done by the respondent: it was an application for the forfeiture of a claim so as to attract the consequences for which s. 37 provides. In my opinion, where the pegging is in breach of the Mining Act and regulations, a question of forfeiture does not arise, and to this limited extent I am unable, with respect, to agree with what was said by Justice Hogarth in De Poi v. Durastante (1964) SASR 344, at p 348 , where he suggests a jurisdiction in such a case in the mining warden to order forfeiture. On the contrary, I agree with what Justice Mitchell said in the instant case on this aspect of the matter. (at p524)

5. Consequently, in my opinion, the first ground taken by the appellant was not a tenable ground for a declaration of forfeiture, and there is no basis for treating his application as an application of a different kind. (at p524)

6. However, though of the opinion I have just expressed. I ought to add that I agree with the Full Court in thinking that whilst Mining Regulation 37 excepts a precious stones claim out of the operation of the first sentence of reg. 24, it does not do so with respect to the second sentence. Consequently, a precious stones claim, provided none of its sides exceeds 150 feet, need not be a square where owing to the position of adjoining boundaries or natural features a sufficient area is not available to permit of a square upon the longest boundary chosen by the miner. In that case the lines of the claim may follow those of adjoining boundaries though they do not result in a square. This conclusion would also itself be sufficient to dispose of the appellant's first submission even though, as I think, the area pegged by the respondent was not substantially square. (at p524)

7. As to the second ground, it is first necessary to recite a few additional facts. The respondent had been in litigation with a former owner of the claim in question here. In the course of those proceedings, the Supreme Court had enjoined the respondent from working the claim. Consequently, in obedience to that order, he did not do so. It was his non-performance of labour conditions during a period he was thus enjoined which formed the basis of the appellant's claim to an order of forfeiture: ss. 36 and 37. (at p524)

8. The respondent when notified of the grant of the order of injunction had communicated with the mining warden with respect to a suspension of labour conditions. Section 36 (1) of the Mining Act renders a claim liable to forfeiture for "non-observance of the prescribed conditions", of which working the claim is one. The warden, by reason of reg. 88 (4), has power to grant a certificate of suspension in the form provided in the schedule to the Mining Regulations where performance of the labour conditions is impossible. But he did not do so when approached by the respondent, expressing the opinion that such a course was unnecessary as the respondent was bound to obey the order of the Supreme Court. The order of injunction was the order of a superior court and had to be obeyed. In my opinion, the obligation to obey such an order did not render performance of the labour conditions impossible within the meaning of reg. 88 (4) and the making of such an order could not form the basis for the grant of a certificate of suspension within that sub-regulation. The mining warden was right not to grant any such certificate. (at p525)

9. In my opinion, the order enjoining the respondent from doing so was sufficient warrant for the suspension by him of any working of the claim. Obedience to such an order of a superior court does not amount, in my opinion, to non-compliance with working conditions. Consequently, during the continuance of that order the respondent was not in breach of the prescribed conditions for working the claim. (at p525)

10. In my opinion, the appeal should be dismissed with costs. (at p525)

McTIERNAN J. In my opinion the appeal should be dismissed for the reasons given by the Chief Justice. (at p525)

TAYLOR J. I agree with the Chief Justice that this appeal should be dismissed. (at p525)

2. Regulation 24 of the Mining Regulations, 1946, which is in Pt III, is, in common with other regulations in that Part, concerned generally with miners' rights and is in a division which is introductory to other divisions dealing separately with particular kinds of claims. Consequently they apply to miners' rights of every category except where an express exception is made. The exception made in the first sentence of reg. 24 is introduced by the opening words of that sentence, "unless otherwise provided for in these regulations" and in reg. 37 we find that special provision is made concerning the dimensions of claims relating to precious stones. To this extent, therefore, the operation of the general provision made by reg. 24 is displaced. But there is nothing to displace the application of the general provisions of the second sentence of that regulation with respect to precious stones claims and I agree with the Chief Justice that, in the circumstances of the case, this is a sufficient answer to the appellant's first submission. (at p525)

3. The other submission is based upon s. 36 (1) of the Mining Act, 1930-1962, which provides that "Every claim shall be liable to forfeiture upon non-compliance by the owner with the prescribed conditions as to working the same". In substance, it is said that the respondent failed to comply with the prescribed conditions because, in obedience to an injunction of the Supreme Court, he ceased work on the claim. Section 36 (1), of course, contemplates a failure on the part of the owner of a claim to do that which he is not only bound but lawfully entitled to do and it proceeds, on this basis, to render the claim liable to forfeiture if there is a "non-compliance, with the prescribed conditions". But it has nothing to say in the case of an owner who, having been restrained by the order of a competent court, may not lawfully work his claim. In these circumstances I am of the opinion that when the respondent ceased working his claim in obedience to the injunction he did not fail to comply with the prescribed conditions and there was not, in the sense in which that expression is used in the section, any "non-compliance" on his part. (at p526)

WINDEYER J. I agree in the judgment of the Chief Justice, except that I am not satisfied that the area of the claim as registered was not close enough to being a square to satisfy the requirements of the Act and regulations. (at p526)

2. A square here means I assume a rectangular quadrilateral, its sides being all equal in length. But the conditions under which a claim is pegged in a mining field, especially one in which other claims have already been pegged, may make impracticable the setting of pegs to form a perfect square. The aim of the relevant provisions is, I take it, that the divisions of a field where precious stones are mined should as far as possible form a pattern of approximately equal squares. It was conceded that a claim need only be substantially a square or approximately square. The claim in question here is neither rectangular nor are all its sides equal. But by merely looking at it in a plan I do not feel that I can say that it would not, as pegged, appear on the ground to be square, or nearly enough to a square, to satisfy the requirements of the mining law; for I do not know what degree of "approximation" is needed. And I do not know what is "substantially" a square, because, for one thing, I do not know what angle greater or less than ninety degrees is substantially a right angle. Would a deviation of anything up to forty-four degrees be allowable? If not, what deviation would be? I just do not know. And I do not know what claims are in practice regarded as a sufficient approximation to squares. Apparently this one was. The mining registrar treated it as a registrable claim; and these proceedings arise out of a dispute in which both parties sought possession of it as a claim that could be lawfully pegged, registered and held. I am therefore not convinced that, to enable this area shaped as it is to be lawfully held, resort to the second sentence of reg. 24 is necessary. But if it be necessary, I agree that this sentence is applicable to a precious stones claim. (at p527)

3. On the question of suspension. In my view the warden was right in saying that, an injunction against working the claim having issued, no suspension by him of labour conditions was necessary or competent. The warden had no power to entertain an application for a suspension. The matter was out of his hands. (at p527)

4. I would dismiss the appeal. (at p527)

OWEN J. For the reasons given by the Chief Justice, I agree that the first contention relied upon in support of the appeal fails. As to the second point argued on behalf of the appellant, I am of opinion that it also fails. The fact is that the respondent, in obedience to an injunction granted against him by the Supreme Court, ceased to work the claim. In such circumstances I am of opinion that it could not be said that the claim was liable to forfeiture under s. 36 (1) or reg. 92 (1) for non-compliance with labour conditions. These provisions seem to me to contemplate a case in which a claim-holder has failed to do that which it is lawful for him to do. And if the law, in the shape of an order of a court of competent jurisdiction, forbids him to work his claim, it cannot be said that, because he has obeyed that order, the claim iis liable to be forfeited for failure to work it. (at p527)

2. I agree that the appeal should be dismissed. (at p527)

ORDER

Appeal dismissed with costs.