B&m Property Enterprises P/L (In Liquidation) v Sickerdick No ERD-01-355 [2002] SAERDC 69 (21 June 2002)

Last Updated: 28 September 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Reasons For Supplementary Decisions of Her Honour Judge Trenorden

Hearing

Catchwords and Materials Considered

MINING LAW

Plaint for forfeiture - considerations on application for forfeiture - the steps in determining whether to recommend forfeiture.

• Mining Act 1971 Sections 69 (2), 70(2), 79, referred to.
• Pacminex (Operations) Pty Ltd v Australian (Nephrite) Jade Mines Pty Ltd (1974) 7 SASR 401;
• Wells v Simnovec [1998] SASC 7221; (1998) 71 SASR 286, considered.

Representation

Appellant: B&M PROPERTY ENTERPRISES PTY LTD (IN LIQUIDATION)
Counsel: MR R SCHROEDER - Solicitors: COSOFF CUDMORE KNOX

Respondent: STEVEN ASHLEY SICKERDICK
Counsel: MR M HOILE - Solicitors: MANOS & ASSOCIATES

ERD-01-355

Judgment No. [2002] SAERDC 69

21 June 2002

On Appeal from WARDEN'S COURT

B&M PROPERTY ENTERPRISES PTY LTD (in liquidation)

v

STEVEN ASHLEY SICKERDICK

ERDC NO 355 of 2001

[2002] SAERDC 69

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. I refer to the judgment of the Court delivered in this matter on 4 October 2001, namely B&M Property Enterprises P/L (in liquidation) v Sickerdick Judgment No [2001] SAERDC 82. That judgment was delivered upon an appeal from a judgment of the Warden's Court in Sickerdick v B&M Property Enterprises Pty Ltd, delivered on 9 March 2001.

2. The judgment of this Court did not set out, seriatim, each of the grounds of appeal as listed in the Notice of Appeal filed in this Court, and indicate the Court's decision on each of them. Instead, the Court decided that the judgment of the Warden's Court should be overturned on certain of the grounds of appeal which were argued. These were with respect to the alleged breaches of illegal mining and the purported creation of trusts; and the Wells v Simnovec [1998] SASC 7221; (1998) 71 SASR 286 argument as to whether the appellant had been bound to comply with the working conditions set out in Mining Regulation 50(3)(a), given the provisions of the lease.

3. The judgment of this Court is now the subject of an appeal to the Full Court of the Supreme Court. The parties have jointly requested that this Court deal finally with all grounds of the appeal as argued before it, in order that the Full Court might properly hear and determine the appeal now before it. I indicated that I would accede to that request by way of an addendum to the judgment of this Court delivered on 4 October 2001. As all grounds (except where indicated below) were fully argued before me on 12 July 2001 I have not heard further argument from either of the parties.

4. The Notice of Appeal set out an "overview of grounds of appeal", followed by "detailed grounds of appeal". I propose to address the groups of grounds of appeal as they appear in the Notice of Appeal, followed by my decision on each of the separate grounds of appeal.

Grounds of Appeal No 1-5

5. The appellant provided an overview of these grounds of appeal, which was as follows:

"For the mining of copper ore pursuant to the subject mining lease, it was necessary for feasibility studies to be conducted prior to commencement of extractive mining operations. Electrometals Mining Limited did extensive feasibility work largely off site (see report dated April 1998 exhibit P9) and this was followed by further extensive feasibility work by Australian Metal Developments Pty Ltd to March 2000 - refer evidence of Mr Aldridge. While this was occurring, it was not practicable to comply with the on site working condition requirement of Regulation 50(3)(a) of the Mining Regulations 1998. The carrying out of off site feasibility work, as occurred, does not justify forfeiture of the mining lease".

6. The learned Warden considered the alleged breaches of the Mining Act 1971. He delivered his findings, having made a pronouncement at paragraph 49 as follows:

"However, I take a fundamental view that Sickerdick ought not to have his lawful rights or entitlements derogated from by virtue of any dilatoriness on Perkins' behalf. Sickerdick has done no more than seek to vindicate his legal position. There can be no finding of impropriety on that account."

7. Section 70 of the Mining Act enables the Warden's Court to recommend to the Minister that a mineral lease by forfeited. Such a recommendation may not be made "unless the Court is satisfied that the requirements of (the Mining) Act in relation to the lease have not been complied with in a material particular and that the matter is of sufficient gravity to justify the forfeiture of the lease": Section 70(2). That is a two step process, as the Supreme Court recognised, with respect to the almost identical provision in relation to mineral claims in Section 69(2) of the Mining Act, in Pacminex (Operations) Pty Ltd v Australian (Nephrite) Jade Mines Pty Ltd (1974) 7 SASR 401 at 412, as follows:

"The court must first be satisfied that the requirements of the Act in relation to the claim have not been complied with "in a material respect". In determining that issue the court will naturally have regard to the regulations invoked, to the circumstances immediately relevant to the alleged non-compliance, and, in particular, to whether the breach is something more than merely trivial or technical. The court must next be satisfied that the "matter" is "of sufficient gravity to justify the forfeiture of the claim". The "matter" referred to, in my opinion, is not equivalent to the breach proved. If it was, the word "breach" would have been used instead. The word "matter" was chosen, in my view, to impress upon the court the necessity of considering, not only the breach and the facts directly bearing upon it, but also the events leading up to the breach, the conduct of the parties and the actual and potential consequences of the breach and of the forfeiture sought, having regard, throughout, to the object and policy of the Act. In this connection, the word "sufficient" must especially be borne in mind and its full implications reconized:...".

8. The learned Warden was satisfied that the requirements of the Act had not been complied with in a material particular, but nowhere in his judgment does he separately deal with the issue of whether the matter was of sufficient gravity to justify the forfeiture. Paragraph 57 of the judgment reflects an incorrect approach by the learned Warden, where he appears to have concluded, as a result of his findings of breaches of the Mining Act, that "the matter is of sufficient gravity to justify the forfeiture of the lease".

9. Nowhere in the judgment does the learned Warden indicate that, having made his findings, he has had regard to the nature and extent of the feasibility studies in arriving at his decision to recommend forfeiture. His only reference to the feasibility studies is in relation to them failing to constitute a diligent working of the mineral lease.

Grounds of Appeal 6-14

10. Insofar as the learned Warden could be said to have found, at paragraph 22, that the liquidator did not apply to suspend the working conditions, he did err as the finding was not correct, on the evidence. The letter dated 26 July 2000, which was before the Warden's Court, as part of the documents in Exhibit R2, was an application by the liquidator to the Warden's Court for "an exemption from compliance with the labour and mining conditions contained in Regulation 50(3)", and in the alternative an application "for the suspension of the working conditions pursuant to Regulation 52". The application may have been misguided, given that it is only the Minister who can grant an exemption, thereby exempting the lessor from the obligation to comply with a condition of the lease: see Mining Act Section 79; and only the application for the suspension of working conditions on a lease should be directed to the Warden's Court. However, on the basis of this evidence, it was not, strictly speaking, correct to say that the liquidator had not, between 9 March 1999 and 9 March 2001, sought an order of the Warden's Court for suspension of the working conditions.

11. In addition, I note that there is a statutory declaration on the Warden's Court file made by the liquidator on 12 April 2000, some three months earlier than the letter referred to in the preceding paragraph, in which he sought orders including "suspension of the labour condition associated with the mining lease". This was the second of two orders sought in that statutory declaration, which appears to have been filed by the liquidator's then solicitors. It does not appear that this application has been addressed.

12. Thus, the learned Warden, because he overlooked part of the evidence, failed to have regard to evidence relevant to the consideration of whether the matter was of sufficient gravity to justify forfeiture of the lease.

13. In addition, the liquidator had also sought, inter alia, an order suspending the working conditions, in his Defence to the Plaint, filed on 11 September 2000. Of course, any suspension, if granted, could only apply prospectively from the time of the application: Regulation 52(4), (5). I do not accept, as was submitted by the appellant's counsel, that had the Warden's Court previously ordered suspension upon an application by the liquidator, pursuant to Regulation 52, that it would necessarily follow that forfeiture would not have been recommended by the learned Warden. One issue for the Warden was whether there had been breaches, prior to the lodgement of the Plaint. The breach of the working conditions, insofar as it was relevant (see my 4 October 2001 reasons with respect to the Wells v Simnovec grounds of appeal), extended to the period before the liquidator was appointed. Given that a suspension cannot be ordered to operate retrospectively, except from the date of the application, and the fact of the breach prior to liquidation, even if an order had been made in favour of the liquidator it might not have been sufficient to avoid forfeiture.

14. With respect to an exemption, the Warden had already noted, at paragraphs 15, 16 and 17 of his judgment, that liquidator had obtained a Memorandum of Exemption, effective 30 January 2001. The Exemption had the effect of exempting the liquidator from complying with the Regulation 50(3)(a) working conditions and Clauses 6(4) and (7) of the Lease for the period of its currency. Accordingly, there was no need for the Warden's Court to address an application to suspend the working conditions, after 30 January 2001, for the ensuing year. However, the fact of the Exemption was a consideration for the learned Warden in addressing whether the matter was sufficiently grave to justify forfeiture of the mineral lease.

Grounds 11-14: Wells v Simnovec

15. The appellant's overview of these grounds was set out in the Notice of Appeal as follows:

"There was a technical defence arising from the reasoning in Wells v Simnovec [1998] SASC 7221; (1998) 71 SASR 286."

16. These grounds were addressed in my judgment delivered on 4 October 2001.

Grounds 15-17: Corporations Law

17. The appellant's overview of these grounds was set out in the Notice of Appeal as follows:

"The appellant (B&M) had been in liquidation since 9 March 1999 and was therefore prohibited by the Corporations Law from commencing a new business, namely mining operations. It is contrary to the policy of the Corporations Law that B&M should lose a valuable asset by reason of legal inability to comply strictly with the working condition requirements. The Warden should have taken this consequence into account."

18. The learned Warden noted that the respondent company was in liquidation pursuant to an order of the Supreme Court made on 9 March 1999. It was noted, at paragraph 10 of the judgment, that after 9 March 1999 Perkins, as liquidator, "began to exercise his office, in a manner required by law, to effect the identification, preservation and final disposal of the assets belonging to B&M with a view to the proceeds of realisation being ultimately distributed to unsecured creditors and share holders".

19. The learned Warden does not appear to have taken into account, in determining whether the matter was of sufficient gravity to justify forfeiture of the lease, the task and role of the liquidator under the Corporations Law. After the learned Warden stated his "judgment and determination in this matter" at paragraphs 58 and 59, he has added some final comments in paragraph 60. Those comments include an expression of sorrow for Perkins "as a result of the judgment" and a reference to the two step process which the Warden has to undertake in order to arrive at a recommendation of forfeiture. The Warden has added "there is no 'residual discretion'" and refers to the judgment of the Supreme Court in Pacminex (above) at page 412. The implication from these words in paragraph 60 is that the learned Warden considered that he had no residual discretion to take into account Perkins' role as liquidator in the circumstances of the Plaint. However, in that regard the learned Warden misled himself. It is correct to say that there is no residual discretion (see Pacminex), but the situation of the mineral lease being in the hands of the liquidator is one of the considerations to which the Warden should have regard when determining whether the matter was of sufficient gravity to justify the forfeiture of the lease and he did not do so.

20. The judgment in Pacminex clearly suggests that the facts bearing upon a breach is a relevant consideration, as also are the events leading up to the breach and the conduct of the parties, together with the actual and potential consequences of the forfeiture. Of course, the object and policy of the Act must be borne in mind. The learned Warden adopted an incorrect approach in failing to take into account the consequences of the forfeiture given that the company is in liquidation, and the fact of liquidation and the limitations imposed upon a mining company in liquidation. However, it should be recognised that, although the fact of the liquidation was relevant, it might not have determined the matter in the appellant's favour. It must be remembered that the Plaint was lodged only a short time after the liquidator was appointed.

Grounds 18-23: Breaches taken into account by the learned Warden

21. These grounds were addressed in my judgment delivered 4 October 2001.

Grounds 24-27: General Principles

22. The appellant's overview of these grounds was set out in the Notice of Appeal as follows:

"The Warden failed to properly consider whether the non-compliance he found was of sufficient gravity to justify forfeiture of the mining lease, particularly having regard to the fact that the mining lease was worth approximately $375,000 - $400,000."

23. I have already discussed the Warden's approach whereby he failed to separately consider, subsequent to his findings with respect to the alleged breaches, whether the matter (and not merely the breaches) was of sufficient gravity to justify forfeiture of the lease.

Determination of Appeal Grounds

24. In some respects, the numbered grounds of appeal suffer from duplication, and might have been better expressed. However, I will respond to each of them, in the groups as they appear in the Notice of Appeal. The reasons for my decision on each ground is either stated with my response, will have been addressed above in these reasons, or was stated in my decision delivered on 4 October 2001.

25. Feasibility Studies Carried Out

1. Failed to have regard to the evidence that preparatory work (feasibility studies) for extractive mining operations had been carried out all material times (except when work ceased as a result of the legal uncertainty created by the plaint).

2. Failed to have regard to the evidence that the feasibility studies were necessary prior to the commencement of extractive mining operations.

3. Failed to have regard to the evidence that the feasibility studies had been conducted with all proper diligence.

4. Failed to have sufficient regard to the opinion of Serge Caplygin, Chief Engineer, Department of Primary Industries and Resources, as indicated by written statement comprised in exhibit R10,

"I have now reviewed the data supplied to me and I am satisfied that the analysis type work has been conducted on the mining leases and that they are undertaking a feasibility study to determine the economics of heap leaching the oxidised ore on the site."

and the evidence presented by the appellant (B&M) consistent with that statement.

I agree, with grounds 1-4, with respect to the Warden's determination as to whether the matter was of sufficient gravity to justify forfeiture.

5. Erred in finding in paragraph 43 by implication that B&M sat on its hands, when in fact B&M, both pre-liquidation and post-liquidation, had caused extensive feasibility studies to be carried out for the purpose of extractive mining operations being commenced.

I agree.

Exemptions and suspensions

6. Erred in finding in paragraph 22 that B&M did not apply to the Warden's Court for a suspension of working conditions pursuant to regulation 52(1) of the Mining Regulations 1998. This finding was incorrect.

(a) By letter dated 26^th July 2000, a copy of which is at page 464 of Exhibit R2, B&M did make such an application.

(b)	By paragraphs 30(b) and 31(b) of the Defence of B&M, B&M referred to such letter and again made such application for suspension.

I agree.

7. Found in paragraph 42 that in certain circumstances, and also by inference in paragraph 50, that such an application for suspension of working conditions would have met with a favourable or at least sympathetic response from the Warden's Court, yet declined to consider or to grant such a suspension in the present proceedings, notwithstanding that the evidence showed that B&M was doing all that could be done to work towards a commencement of extractive mining operations.

This ground fails, as it was not necessary for the Warden to consider granting a suspension.

8. Erred in failing to either consider or to make an order pursuant to Regulation 50(3) and paragraphs 30(a) and 31(a) of the Defence of B&M that the working conditions not apply, on the basis of the words in Regulation 50(3) "Unless otherwise determined by the Warden's Court...".

Given the fact of the Exemption, the failure was not an error.

9. Erred in failing to have sufficient regard to the fact that the Minister had granted to B&M an exemption from the working conditions and certain lease requirements, pursuant to applications by B&M dated 11 July 2000 and 29 August 2000.

I agree. The learned Warden erred in failing to have sufficient regard to this fact, in the context of determining whether the matter was of sufficient gravity to justify forfeiture. It is a relevant consideration.

Wells v. Simnovec [1998] SASC 7221; (1998) 71 SASR 286

10. Erred in failing to find in accordance with the reasoning of the Full Court of the Supreme Court in Wells v Simnovec, in particular as set out in the judgment of Cox, J from pages 293.7 to 294.9 that:

(a) Regulation 50 (or its equivalent in earlier regulations), referred to a requirement to work 100 hours per month or [the hours] as specified in the lease.

(b) In this case, the lease clause 6(4) required the holder "to mine the land... in accordance with the first schedule hereto..."

(c) The first schedule to the lease provided that the "operations authorised in Clause 1 above ... must be in accordance with a developmental plan approved in writing by the Chief Inspector of Mines".

(d) Since no developmental plan had been submitted or approved, no mining operations were permitted under the lease.

(e) Therefore, the requirement of regulation 50(3) as to working conditions did not apply.

(f) Even if there were a breach of the lease by failing to submit a development plan within a reasonable time (which is not admitted), a breach of the lease is not a ground for forfeiture.

(g) The plaint therefore could not succeed insofar as it was based on a breach of working conditions.

I agree that the learned Warden erred in each of the above respects: see my judgement delivered on 4 October 2001.

11. Erred in finding in paragraph 35 that the relevant terms of the mining lease in this case were quite different to the relevant terms of the mining lease in Wells v Simnovec. The terms were substantially to the same effect.

The learned Warden erred in distinguishing the situation in Wells v Simnovec: see my judgment delivered 4 October 2001.

12. Erred in finding in paragraph 39, and placing reliance on such finding, that more than a reasonable time had elapsed for a developmental plan to have been submitted and approved. ...

I agree. See judgment delivered 4 October 2001.

13. Erred in paragraph 41 in placing reliance on the finding that there was work that could be done on the site without an approved developmental plan. The Warden should have applied the statement of Cox J. In Wells v Simnovec at page 295.5. ...

I agree. See judgment delivered 4 October 2001.

14. Erred in law in finding by inference in paragraph 42 that a suspension of the working conditions was required pending approval of a development plan.

This ground was not relied upon at the hearing.

Corporations Law

15. Failed to find that B&M was prevented by virtue of sections 477(1)(a) 477(2)(c) and 478(1)(a) of the Corporations Law from commencing to carry on the business of conducting mining operations.

16. Failed to find that B&M was for the purposes of regulation 53(1)(c) specifically prevented from working the lease by an order of court, namely the order for the winding up of B&M.

The learned Warden did not so find, as alleged in grounds 15 and 16, but insofar as the failure to comply with the working conditions was relevant, at issue also was the failure of the appellant company to comply before the liquidator was appointed; the question was not whether the liquidator alone had failed to comply with the Act and Regulations.

17. Failed to find that, as applied to the particular circumstances of this case, there was a practical inconsistency between the provisions of the Corporations Law and the Mining Act, particularly with reference to:

(a) The policy of the Mining Act that the forfeiture provisions exist to ensure that no-one goes to sleep on a mineral deposit, and

(b) The policy of the Corporations Law that assets of a company in liquidation should be preserved for sale with the proceeds being distributed to creditors and others in accordance with the priorities set out in the Corporations Law.

and to take such matters in to account in deciding whether to recommend forfeiture.

There was no inconsistency. The assets of a company in liquidation should be preserved for sale, but if at the time of the company going into liquidation, the assets were in jeopardy because the company had failed to comply with the law, the liquidator holds and preserves the assets, subject to a determination of the rights of any other person with respect to the assets, based on the pre-liquidation failure to comply. Insofar as the breaches alleged were those of the liquidator, the learned Warden should have taken the liquidator's legal obligations and position into account in determining whether the breach was sufficient to justify forfeiture.

Breaches taken into account by the learned Warden

18. Erred in finding in paragraph 54 that there had been three relevant breaches, and relying on each of those, when two of the breaches, namely:

(a) Moss rock extraction (section 74), and

(b) Purported creation of trusts of the mining lease (section 83)

were not pleaded by the plaintor in its statement of claim.

I agree. See judgment delivered 4 October 2001.

19. Erred in allowing evidence of the above two alleged breaches when they were not pleaded by the plaintor in the statement of claim.

I agree. See judgment delivered 4 October 2001.

20. Erred in finding in paragraph 55 that on the evidence, there had been illegal mining of moss rocks and that this represented a substantial and material violation of section 74. The evidence of the plaintor was not sufficient proof of such a serious allegation.

I agree. See judgment delivered 4 October 2001.

21. Erred in finding in paragraphs 51 and 56 that B&M was in breach of section 83 of the Act by the acknowledgement of trust documents in that:

(a) the acknowledgement of trust documents appeared to be executed by Mr Malcolm Pettingill on behalf of B&M. There was no evidence that Mr Pettingill had actual or apparent authority to execute such documents.

(b) Therefore, there was no evidence that the acknowledgements of trust was conduct by B&M.

Not necessary to comment on (a) or (b); see sub-ground (d) below.

(c) The acknowledgements of trust were void pursuant to section 29(1)(c) of the Law of Property Act 1935. The mining lease was therefore not made the subject of a trust for the purposes of section 83(1) of the Mining Act 1971.

This sub-ground was abandoned at the hearing.

(d) The acknowledgement of a trust is void pursuant to section 83(1). Such conduct does not comprise a situation where "requirements of this Act in relation to the lease have not been complied with" for the purposes of section 70(2).

I agree. See judgment delivered 4 October 2001.

(e) If the conduct did amount to non-compliance by B&M, such non-compliance was not a matter of sufficient gravity to justify forfeiture of the lease.

The conduct alleged was not a matter to be dealt with by Plaint for forfeiture, as section 83 has its own remedies: see my judgment delivered 4 October 2001.

22. Erred in finding in paragraph 56 "that the so-called Trust dealings, without the consent of the Minister, by Pettingill and other functionaries of B&M represented an unacceptable connivance and collusion to avoid the clear policy objective of the Act..."

I agree. See judgment delivered 4 October 2001.

23. Failed to have sufficient regard to the fact that neither the alleged moss rock excavation nor the acknowledgement of trust documents had any effect on the general mining operations to be conducted and the policy of the Act that a lease holder should not be permitted to go to sleep on a mineral deposit that can be utilized.

I agree.

General Principles

24. Failed to have sufficient regard to the principals (sic) set out in Pacminex v. Australian (Nephrite) Jade Mines (1974) 7 SASR 401 and 412.2 per Wells J and followed in Pasinok v. Merrill (1992) 57 SASR 566 at 570.6 that,

"The word "matter" was chosen in my view, to impress upon the court the necessity of considering, not only the breach and the facts directly bearing upon it, but also the events leading to the breach, the conduct of the parties and the actual and potential consequences of the breach and of the forfeiture sought, having regard, throughout, to the object and policy of the Act".

In particular, the Warden:

(a) Failed to have regard to the events leading to the failure to comply with the working conditions both before and after the liquidation.

I agree.

(b) Erred in finding in paragraphs 18 and 19 that most of the contextual history was irrelevant, and that the same applies to the evidence of Mr Aldridge in respect of the technical aspects of heap leaching.

I agree.

(c) Failed to have regard to the actual and potential consequences of the breach of the requirement for working conditions in that:

•

although there had not been 100 hours of work per month carried out on site, the uncontested evidence of Mr Aldridge was that there had been a very substantial amount of work carried out with all due speed off site for the feasibility studies, which work was necessary prior to commencement of extractive mining operations, and

•	the consequence of the breach was therefore not to delay extractive mining operations.

I agree.

(d) Failed to have regard to the consequences of the forfeiture sought, in particular:

•	forfeiture of the mining lease would delay the commencement of extractive mining operations in that the plaintor had not made the necessary arrangements for obtaining feasibility information or finance for mining operations to commence, whereas B&M had specific plans regarding such matters, and

I do not agree. The learned Warden did not fail to have regard to the ability of the respondent to mine the lease. He had regard to it (see paragraph 51) and decided it was not relevant.

•	the consequence of forfeiture for B&M is that it would lose an asset worth approximately $375,000 to $400,000 through no fault on its part, and the plaintor would gain a corresponding advantage, through no particular merit on his part.

I do not agree. The Warden described the history of the matter and the mineral lease.

25. Failed to give any reason, or alternatively any proper reason as to why the non-compliance was of sufficient gravity to justify forfeiture of the lease.

I agree. The Warden failed to determine, separately from the breaches whether the matter was of sufficient gravity to justify forfeiture.

26. Erred in finding in paragraphs 54 that,

"... the breach of working conditions goes to the very heart of potentially eroding or vitiating the efficacy of the Mining Act 1971 and the pursuit of its objects and policies."

In light of my decision with respect to the Wells v Simnovec arguments, I agree.

27. Erred in finding in paragraph 49,

"However, I take a fundamental view that Sickerdick ought not to have his lawful rights or entitlements derogated from by virtue of any dilatoriness on Perkins' behalf."

when the evidence showed that:

(a) the plaintor had not pursued the plaint for approximately 13 months from 28 April 1999 to 25 May 2000 (refer Exhibit R2 pages 24 and 425) and;

(b) Pursuant to section 471B of the Corporations Law, the plaint proceedings were void until the Supreme Court granted leave to proceed nunc pro tunc on 30 June 2000 (exhibit R2 page 447).

(c) Prior to the plaintor's application for leave to proceed, the plaint was at risk of being dismissed for want of prosecution (refer Exhibit R2 page 417).

(d) Mr Perkins had within less than 1 month of the granting of such leave, made application for suspension of working conditions (refer Exhibit R2 page 464) and;...

This was not a finding, but a view taken by the Warden without proper regard to the evidence. It erroneously coloured the Warden's approach.