Australia: Mining Update: Significant Changes To The Rules For Proceedings Before The Warden

Part 9 of the Mining Amendment Act 2004 (WA) and Mining Amendment Regulations 2007 (WA) will commence operation on 31 March 2007.

These amendments primarily relate to the powers and procedures of the warden and are likely to have a significant impact upon the administration of the Mining Act (1978) in Western Australia.

These amendments:

• Clarify the distinction between the administrative jurisdiction of the Warden and the judicial jurisdiction of the "Warden’s Court".
• Introduce new rules for the conduct of administrative proceedings before the Warden.

Administrative proceedings which are heard by the Warden include:

• Applications for forfeiture (which were previously called ‘plaints’).
• Exemption applications which are objected to.
• Tenement applications which are objected to.

Judicial proceedings which are heard by the Warden’s Court are essentially civil disputes between parties in relation to mining tenements, contracts relating to mining and other mining matters.

The regulations set out detailed rules for the conduct of proceedings before the Warden. To some extent, these rules adopt the rules that apply in the Magistrates Court.

These amended regulations will apply to proceedings in respect of plaints and applications lodged after 31 March 2007. Proceedings commenced before that date will not be affected by these amendments.

Much of the traditional terminology and many of the traditional forms have been replaced. For example, under the amended legislation, an ‘applicant’ (formerly ‘plaintiff’) will lodge an ‘application for forfeiture’ (formerly ‘plaint’) and the ‘respondent’ (formerly ‘defendant’) will lodge a ‘response’ (formerly ‘notice of defence’).

In general terms, the amendments:

• Codify the general practice that has developed on the basis of general principles and give guidance and certainty as to the procedures to be followed.
• Introduce rules that are designed to streamline the process and reduce delays.

Some of the key amendments are summarised below.

Currently, the Warden does not have power in administrative proceedings to order the discovery or production of documents.

The amendments will give the Warden power, in certain circumstances and subject to certain limitations, to order that:

• An applicant for forfeiture disclose relevant documents to the respondent.
• An applicant for exemption disclose relevant documents to the objector.

Applicants for forfeiture will not be able to obtain disclosure of documents relating to whether the tenement holder complied with the expenditure conditions. However, if an applicant for forfeiture lodges an objection to any exemption application in respect of the same tenement year as the forfeiture application, they will potentially be able to get discovery of documents relating to the grounds of exemption.

This will provide objectors to exemption applications with a significant procedural advantage because they will be able to review documents prior to the hearing and even obtain documents that the applicant would not have chosen to disclose.

Conversely, the power to order the disclosure of documents may be beneficial to tenement holders in some circumstances. For example, it may be possible to obtain discovery to establish whether the named applicant for forfeiture is a real person who authorised the issue of the application or merely a "man of straw" used as a front by a third party.

At present, the Warden does not have power in administrative proceedings to compel the attendance of witnesses.

The amendments will allow parties to issue a witness summons to compel the attendance of witnesses at the hearing, either to give oral evidence or to produce documents.

The summons procedure will provide a useful tool to tenement holders in obtaining evidence but conversely it will significantly impact upon a tenement holder’s ability to control whether adverse evidence in its possession is adduced at hearing.

Currently, administrative proceedings before the Warden are essentially a "no-costs" jurisdiction. The only exception is in the unusual circumstance where a plaintiff for forfeiture fails to proceed with the plaint.

The amendments confer upon the Warden the power to award costs:

• In relation to applications for forfeiture, at the Warden’s discretion.
• In relation to objections to exemption applications or tenement applications, where the warden is satisfied that proceedings have been frivolously or vexatiously commenced or defended or unduly delayed by a party.
• In circumstances where a party does not comply with the regulations, a summons or an interlocutory order or direction of the warden.
• In circumstances where a party fails to admit facts when invited to do so that are later proven.

There is also a power to order that an applicant for forfeiture provide security for costs.

The quantum of costs is assessed by the mining registrar in accordance with a schedule to the regulations.

The power to award costs increases a tenement holder’s exposure in relation to proceedings before the Warden. Of course, they will also operate as a financial disincentive to the lodgement of applications for forfeiture and objections which have little prospect of success.

There is considerable uncertainty as to how some of the rules will operate and in the short term there is likely to be an influx of procedural disputes.

What is clear is that tenement holders will need to reconsider their approach to the conduct of administrative proceedings before the Warden in light of these amendments.

Strategies and tactics that succeeded in the past will now need to be modified.

Proceedings that are currently underway will not be affected by these amendments. Consideration should be given to whether a procedural advantage may be obtained in lodging a tenement application prior to the date of commencement of the new regulations (31 March 2007). For example, tenement holders may wish to lodge potentially contentious tenement applications prior to 31 March 2007 in order to prevent being subject to the power to compel the attendance of a witness.

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