Re Malley Sm; Ex Parte Gardner

[2001] WASCA 29

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Mining Law
2. › Mining Act 1978 (WA)
3. › Warden's powers
4. › Warden sitting in open court
5. › Whether administrative or judicial function
6. › Whether power to issue subpoena
7. › Whether power limited to Warden's Court
8. › Mining Act 1978 (WA), ss 8(1), 13, 98, 102, 136(1)
1. Practice and Procedure
2. › Abuse of process
3. › Re-litigation of issues previously determined
4. › Issue estoppel
5. › Whether party bound by previous Full Court decision between same parties on same subject matter
1. Practice and Procedure
2. › Precedent
3. › Intermediate appellate court
4. › Whether Full Court should depart from its own previous decision
5. › Circumstances in which re-opening permitted
1. Prerogative Writs
2. › Certiorari
3. › Discretion to grant
4. › Whether order nisi should be discharged
5. › Abuse of process as ground for refusal

Quick Take

A party who has had an issue determined against them by the Full Court cannot re-litigate that issue in subsequent proceedings between the same parties merely by arguing the earlier decision was incorrect; this constitutes an abuse of process. The distinction between the Warden's Court and the Warden sitting in open court under the Mining Act 1978 (WA) was confirmed, though McKechnie J's obiter analysis suggests a Warden in open court may have incidental power to issue subpoenas. The question whether subpoena power extends to proceedings heard by a Warden acting judicially but not as the Warden's Court was expressly left open by Owen J.