Pantoro South Pty Ltd & Anor v True Fella Pty Ltd [2023] WAMW 22
Warden Cleary’s decision in the above case, a sequel to True Fella (True Fella Pty Ltd v Pantoro South Pty Ltd [2022] WAMW 19), was delivered on 14 July 2023. It had been argued for a full day in the Wardens Court on 20 June 2023.
As we reported at the time, True Fella concerned competing applications by True Fella Pty Ltd – for exploration licence E63/2149 – and Pantoro South Pty Ltd and Central Norseman Gold Pty Ltd – for exploration licence E63/2150. In that case, Pantoro South successfully attacked True Fella’s accompanying s58 Statement for non-compliance. In summary, Warden Cleary found the application by True Fella to be invalid on grounds which included that the s58 Statement did not include details of expenditure, work programmes and financial resources for the full 5 year term of the exploration licence, it only covered the first year. Additionally, the application did not provide details in respect of the whole of the ground applied for.
This decision was upheld by Warden McPhee in the Azure case (Azure Minerals Ltd v D & G Geraghty Pty Ltd [2022] WAMW 27). Subsequently, on 22 March 2023, Warden Cleary in the Toolonga case (Toolonga Mineral Sand Pty Ltd v Callum and Belinda Carruth & Ors [2023] WAMW 6) appeared to shut the door on the interpretation of s58(1)(b) of the Mining Act 1978 (WA) (Act) by confirming the findings in True Fella and Azure.
True Fella caused much concern in the mining industry and resulted in many companies lodging new applications over the same ground with 5 year work programmes. In that period, True Fella withdrew its application for E63/2149, lodged another application for E63/2262 over the same area as the application for E63/2150 lodged by Pantoro South/Central Norseman Gold and then objected to their application.
In this recent case, the True Fella Sequel, the s58 Statement of Pantoro South/Central Norseman Gold came under attack by True Fella for the very same reason as in True Fella, namely, that it only proposed a 1 year work programme and budget (and only included the financial resources available to one of the applicants, Pantoro South, an argument that the Warden did not uphold). The irony was not lost on Warden Cleary who had strong words to say about Pantoro South and its advisers.
In a lengthy decision, which references the post apocalyptic journey of Cormac McCarthy’s The Road, Warden Cleary reviewed the principles in True Fella, Azure and Toolong. She concluded that the application by Pantoro South/Central Norseman Gold was invalid as their s58 Statement did not meet the requirements of the Act. In considering the public interest issue raised by the case, she stated that “in relation to this objector and this applicant, it would be contrary to public interest and the orderly administration of the Act to conclude E63/2150 is sufficient and valid, when E 63/2149, and many others like it, were considered not sufficient, and invalid”.
Ahead of judicial review or legislative change, True Fella, as confirmed in Azure, Toolonga and now the True Fella Sequel, sets out the position on s58 Statements accompanying applications for exploration licences in the cataclysm of the “post Forrest & Forrest v Wilson world” (Forrest & Forrest Pty Ltd v Wilson & Ors [2017] HCA 30; (2017) 262 CLR 510). A s58 Statement for an exploration licence application under the Act must propose a work programme and budget for the full 5 year term.
Warden Cleary’s well considered and engagingly written determination can be read here.