Aquila Steel Pty Ltd v BHP Minerals Pty Ltd [No 2] - [2024] WASC 250

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   AQUILA STEEL PTY LTD -v- BHP MINERALS PTY LTD [No 2] [2024] WASC 250
CORAM:   ARCHER J
HEARD:   11 - 14 MARCH 2024; FURTHER SUBMISSIONS FILED 17 & 24 MAY 2024
DELIVERED          :   17 JULY 2024
FILE NO/S:   CIV 1347 of 2021
BETWEEN:   AQUILA STEEL PTY LTD
First Plaintiff
AMCI (IO) PTY LTD
Second Plaintiff
AND
BHP MINERALS PTY LTD
First Defendant
ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD
Second Defendant
MITSUI IRON ORE CORPORATION PTY LTD
Third Defendant
HON WILLIAM JOSEPH JOHNSTON MLA IN HIS CAPACITY AS MINISTER FOR MINES AND PETROLEUM OF THE STATE OF WESTERN AUSTRALIA
Fourth Defendant

Catchwords:

Minister created a temporary reserve - The 'Rocklea Homestead' was the reference point by which the area of the temporary reserve was defined - Two homesteads were on the Rocklea pastoral station at that time - Which building was 'the Rocklea Homestead'

Construction of documents which created a temporary reserve - Proper approach - What evidence is admissible - What documents were incorporated - Did extrinsic evidence identify which building it was

Were the causes of action time-barred - When did time start to run

Should declaratory relief be refused on discretionary grounds - Delay - Conduct - Impact on third parties

Legislation:

Mining Act 1904 (WA)
Mining Act 1978 (WA)
Mining Regulations 1981 (WA)

Result:

Judgment for the defendants

Category: B

Representation:

Counsel:

First Plaintiff	:	S K Dharmananda SC, S B Nadilo & S M Murphy
Second Plaintiff	:	S K Dharmananda SC, S B Nadilo & S M Murphy
First Defendant	:	S J Wright SC & M S Pudovskis
Second Defendant	:	S J Wright SC & M S Pudovskis
Third Defendant	:	S J Wright SC & M S Pudovskis
Fourth Defendant	:	No appearance

Solicitors:

First Plaintiff	:	DLA Piper Australia - Perth
Second Plaintiff	:	DLA Piper Australia - Perth
First Defendant	:	Herbert Smith Freehills
Second Defendant	:	Herbert Smith Freehills
Third Defendant	:	Herbert Smith Freehills
Fourth Defendant	:	State Solicitor's Office

Case(s) referred to in decision(s):

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182
Auburn Municipal Council v Szabo (1971) 67 LGRA 427
Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406
BHP Minerals Pty Ltd v Aquila Steel Pty Ltd [2023] WASCA 21
Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement) [2017] NSWCA 263; (2017) 96 NSWLR 434
CG (deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204
Clarence City Council [2020] FCAFC 134; (2020) 280 FCR 265
Consolidated Gold Mining Areas NL v Oresearch NL (1990) 3 WAR 208
Financial Services Authority v Rourke [2001] EWHC 704 (Ch); [2002] CP Rep 14
Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 516
Harding v Her Worship Ms B Lane SM [2001] WASCA 37
House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498
Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1994) 51 FCR 213
Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147; (2019) 101 NSWLR 1
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1
Johnco Nominees Pty Ltd v Albury-Wodonga (New South Wales) Corporation [1977] 1 NSWLR 43
Jones v Miami Waterfront Developments Pty Ltd [2012] WASC 483
Keen v Telstra Corp Ltd [2006] FCA 834; (2006) 91 ALD 324
Moses v State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148
Netline Pty Ltd and Kathryn Isabel Lance v QAV Pty Ltd [2014] WASC 280
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
Nicholas v State of Western Australia [1972] WAR 168
Nicholas v The State of Western Australia (Unreported, WASC, Library No 947, 23 September 1971)
Owners - Strata Plan No 4983 v Canny [2018] NSWCA 275
Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632
Peppers Hotel Management Pty Ltd v Hotel Capital Partners Ltd [2004] NSWCA 114; (2004) 12 BPR 22,879
Phillips v Crown (1910) 12 CLR 287
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403
SDA v Corporation of the Synod of the Diocese of Rockhampton [2021] QCA 172; (2021) 8 QR 440
Slough Estates Ltd v Slough Borough Council (No 2) [1971] AC 958
State of Western Australia v Graham on behalf of the Ngadju People [2016] FCAFC 47; (2016) 242 FCR 231
TAL Life Ltd v Shuetrim [2016] NSWCA 68; (2016) 91 NSWLR 439
Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2021] WASC 356
Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38

Table of Contents

Introduction and issues

Background facts

Rocklea Station and its Homesteads

The relevant mining tenures

The Rocklea Temporary Reserve
BHP's Exploration Licence
Aquila's Exploration Licence
Converting exploration licences into mining leases
The mining leases

Survey of Aquila's Mining Lease

Litigation

Overview of evidence

Witnesses who saw Rocklea Station in 1967

Mr Clegg - the Department's processes and plans

Mr Dinh - inaccuracy of location of Rocklea Homestead on Page 11 Plan

Mr Trinder - analysis of maps and plans

Mr Winter - investigated for Aquila

Other witnesses

Documents

Key Issue 1 - which homestead?

The grant of the Rocklea Temporary Reserve and right of occupancy

Incorporated material and identification evidence is admissible

Restrictions on evidence in mining context - Oresearch
Restrictions on evidence in planning cases
When will a document be said to be incorporated?
Must it be proved that the document was accessible to the public?
Can subsequent documents be said to be incorporated?
What is 'Identification Evidence'?
The case of Hunter did not expand the scope of admissible evidence
The approach is one of limitation
Construction of the documents creating a temporary reserve

What material was incorporated by necessary implication?

Governor's role
Is the term 'Rocklea Homestead' (legally) ambiguous?
If it is legally ambiguous, is the Page 11 Plan necessarily incorporated?
The origin of the Page 11 Plan - a red herring
The Page 11 Plan was not incorporated
Conclusion

What is the Identification Evidence? (Evidence to identify which homestead was the point of reference)

Agreed Facts
Documents
Page 11 Plan
Mt Bruce plan
'Native Affairs' document
The Pastoralists' Letter
The money spent
Frank Troy's descriptors
The Stevens' November 2018 email
Photographs
Lands and Surveys file
Witness evidence on the ground
Stephen Troy
Old Homestead
New Homestead
Roads into Rocklea Station
Acceptance of Stephen Troy's evidence
David Cox
Michael Herbert
The Old Homestead
The New Homestead
Comparisons to Old Homestead
Roads into Rocklea Station

What does the evidence establish?

Addressing Aquila's contentions
Aquila's pleading
Aquila's submissions
Aquila's submissions as to what 'Rocklea Homestead' meant
Addressing BHP's contentions
Use of dictionaries
Which Homestead was 'Rocklea Homestead'?
Presumption

Conclusion on Key Issue 1

Key Issue 2 - Time barred?

What was the factual position?

When did time start to run on Aquila's claims?

Unable to commence action?
Communication required?
Inconsistent rights - Wyloo submissions

Conclusion on whether Aquila's claims are statute‑barred

Are BHP's claims statute‑barred?

Key Issue 3 - Discretionary refusal?

Proper test

Why might I refuse relief?

Delay and conduct
No real interest until 2018?
Nature of the delay
Conduct of proceedings in the Warden's Court
Status quo - BHP
BHP's failure to survey
BHP's understanding
Status quo - third parties
Not a submission about joinder
Impact on third parties as a discretionary factor
Pleading issue

Conclusion on Key Issue 3

Outcome

Glossary

Map

ARCHER J:

Introduction and issues

The length of this judgment is inversely proportional to the simplicity of the pivotal issue in this case: which of two homesteads on the Rocklea pastoral station was the reference point from which the boundary of a temporary reserve was determined.
The answer matters a lot to the parties.[1] The answer determines which side of the litigation is entitled to mine in a particular area in the Pilbara.
[1] Other than the fourth defendant, who has filed a notice of intention to abide.
Finding the answer requires an analysis of historical records from 1967, a repealed statute, and evidence about buildings and roads on the Rocklea pastoral station in 1967. It requires an analysis of what evidence is admissible in construing an instrument recording a Minister's decision.
I have concluded that the building referred to as the 'Old Homestead' was the reference point.
Two further issues arise. The first is whether either side's claims for declarations are statute‑barred. This requires me to determine the time at which the parties' causes of action arose. The second further issue is whether, if the plaintiffs are otherwise entitled to declaratory relief, I should refuse to grant the relief on discretionary grounds. This requires an analysis of the plaintiffs' delay and the impact that the proposed declarations would have on others.
The key issues are, therefore:
1.Which of two homesteads on the Rocklea pastoral station was the reference point from which the boundary of the temporary reserve was determined (Key Issue 1)?
2.Are any of the parties' claims for declarations statute‑barred (Key Issue 2)?
3.If the plaintiffs are otherwise entitled to declaratory relief, should I refuse to grant the relief on discretionary grounds (Key Issue 3)?

Background facts

The background facts were largely agreed.
In simple terms, the situation can be described in this way.
The first to third defendants have the right to mine in the area that was the subject of a particular temporary reserve (the Rocklea Temporary Reserve) and subsequent mining tenements. The plaintiffs do not have that right. For ease of reference, I will refer to the first to third defendants, and their predecessors in title,[2] collectively as 'BHP' and in the singular. I will refer to the plaintiffs collectively and in the singular as 'Aquila'.[3]
[2] The early events involved BHP's predecessors in title. On or around 27 August 1993, the second and third defendants each became a holder of Exploration Licence 47/16‑I (BHP's Exploration Licence). On or around 20 May 1998, the first defendant became a holder of BHP's Exploration Licence.
[3] On or around 31 October 2007, the second plaintiff became a holder of Exploration Licence 47/1413‑I (Aquila's Exploration Licence), together with the first plaintiff.
The area of the Rocklea Temporary Reserve, and BHP's subsequent tenements, is defined by reference to the 'Rocklea Homestead' on the Rocklea pastoral station (Rocklea Station). There were two residences on Rocklea Station at the relevant time, referred to by the parties as the 'New Homestead' and the 'Old Homestead'. The location of the Rocklea Temporary Reserve would be different depending on which building was the 'Rocklea Homestead'. If it was the New Homestead, some of the land that was thought[4] to have been within the Rocklea Temporary Reserve (and therefore land that BHP, and only BHP, could mine) would not have been. Part of this land would instead fall within a neighbouring mining lease held by Aquila. I will refer to that part of the land as the 'Disputed Area'. In short, determining which building was the reference point for the Rocklea Temporary Reserve will determine which party has the right to mine in the Disputed Area.
[4] At least by the relevant department prior to 2018.
To demonstrate why this is so, it is necessary to set out the various mining applications made and the way they operated under the relevant legislation. The parties helpfully filed a statement of agreed facts and an agreed chronology. Attached to the statement of agreed facts is a map that shows the parties' tenements. The map and a glossary of defined terms is annexed to these reasons.
What follows largely reproduces the relevant agreed facts.
I have adopted the descriptors used by the parties for the two residences on Rocklea Station - the Old Homestead and the New Homestead. However, I note that these descriptors implicitly assume that each of the residences was a 'homestead'. As neither party sought to contend otherwise, I am content to make that assumption.

Rocklea Station and its Homesteads[5]

[5] See Agreed Facts [10] ‑ [11], [15].

There is, and at all material times has been, a pastoral station located in the Pilbara region of Western Australia known as Rocklea Station.
Sometime prior to 1966, the Old Homestead was erected on Rocklea Station.
Sometime in 1966, the New Homestead was erected at Rocklea Station, approximately 390 m northwest of the Old Homestead.[6]
[6] See also the Agreed Chronology row 5.
I will later say more about the characteristics of the two homesteads, the time at which the New Homestead became a residence, and who resided in the two homesteads.[7]

The relevant mining tenures[8]

[7] See under the heading 'What is the Identification Evidence? (Evidence to identify which homestead was the point of reference)'.

[8] See Agreed Facts [19] ‑ [57].

In simplistic terms, mining legislation[9] provides for various rights (rights of occupation, licences and leases) to be granted over land, to permit exploration or mining. The legislation creates a system under which the holder of a right over particular land will have that right to the exclusion of all others.

The Rocklea Temporary Reserve

[9] A detailed discussion of the relevant legislation can be found in BHP Minerals Pty Ltd v Aquila Steel Pty Ltd [2023] WASCA 21 (Stay Decision).

On or around 26 May 1967, BHP applied for the creation of seven temporary reserves, and the right to occupy those temporary reserves.[10] The application was made under s 276 of the since repealed Mining Act 1904 (WA) (Repealed Act). Under that section, the Minister had the power to temporarily reserve Crown land from occupation and authorise any person to temporarily occupy any such reserve. Temporary reserves were effectively replaced by exploration licences in the Mining Act 1978 (WA).
[10] See also the Agreed Chronology row 10.
In an attachment to the application, the seven areas, labelled numerically, were described by reference to various features. 'Area (6)' was described by reference to 'Rocklea Homestead'. The temporary reserve sought to be created over 'Area (6)' was, when created, what I refer to as 'the Rocklea Temporary Reserve'.
I will later say more about the application and its approval.[11] For the moment, it is sufficient to note the following.
[11] See under the heading 'The grant of the Rocklea Temporary Reserve and right of occupancy'.
On or around 31 July 1967, the Under Secretary recommended to the Minister for Mines that the application be approved in respect of Crown Land only, with rights to 31 March 1968 and subject to '[t]he usual iron ore conditions', which included, among others, that
within 60 days of approval of the right of occupancy appearing in the Government Gazette, the occupant shall mark at a corner of the boundary of the Temporary Reserve a landmark consisting of a post or cairn to serve as a commencing or datum point and shall advise the Minister for Mines in writing the position of such point.

On 4 August 1967, the Minister relevantly:[12]
1.accepted the Under Secretary's recommendation that the application be approved, subject to conditions;
2.temporarily reserved Area (6) from occupation under s 276 of the Repealed Act; and
3.authorised the temporary occupation of Area (6), subject to conditions and the Governor's approval,
by signing the Under Secretary's recommendation.
[12] See also the Agreed Chronology row 16.
The Rocklea Temporary Reserve was recorded in a handwritten register. The register was maintained by the Department assisting the Minister with the administration of mining legislation (Department).[13]
[13] See the Agreed Chronology row 20. Now called the Department of Energy, Mines, Industry Regulation and Safety (for the State of Western Australia).
On or around 28 September 1967, the Minister recommended that Cabinet (Executive Council) advise the Governor in Council to confirm the temporary reservation by the Minister of the Rocklea Temporary Reserve and approve the Minister's authorisation of BHP to temporarily occupy the Rocklea Temporary Reserve.[14]
[14] Agreed Facts [24]. The evidence establishes only that this was done after 4 August 1967 and on or before 28 September 1967. BHP noted this (see ts 280, 410 ‑ 411), but did not suggest it mattered. In any event, it is an agreed fact that it was done 'On or around 28 September 1967'.
On or around the same day, Cabinet (Executive Council) advised the Governor in Council to do this, and the Governor in Council followed that advice. Once that occurred, BHP was authorised to occupy the Rocklea Temporary Reserve in accordance with s 276 of the Repealed Act. At all times between 28 September 1967 and 1 June 1982, BHP had a right to occupy the Rocklea Temporary Reserve for the purpose of prospecting for iron ore.
On 6 October 1967, the Rocklea Temporary Reserve was notified in the Government Gazette of Western Australia. The entry in the Gazette noted the Mines File number of 384/67 (Mines File 384/67).[15]
[15] Exhibit 3.31 page 651. See also Agreed Facts [33].
The following month, BHP marked a datum point for the Rocklea Temporary Reserve by driving a black 5 foot star iron approximately 2 feet into the ground. That star iron was subsequently lost. Despite searches by Aquila in 2013 and 2018, and searches by BHP in 2018, the star iron was not found.[16]

BHP's Exploration Licence

[16] See also the Agreed Chronology row 27.

On 29 April 1982, BHP applied for an exploration licence under the Mining Act over the area of the Rocklea Temporary Reserve.[17]
[17] Exhibit 3.112 page 894. See also the Agreed Facts [35] and the Agreed Chronology row 35. The application was made under cl 1(3) of the Second Schedule (Transitional Provisions) to the Mining Act.
On or around 4 October 1982, the Minister granted the licence (BHP's Exploration Licence) over that land.[18]
[18] Exploration Licence 47/16-I. See also the Agreed Facts [36]. See also the Agreed Chronology row 36. The application was granted under cl 1(4) of the Second Schedule (Transitional Provisions) to the Mining Act.
After it was granted, the land was not open for mining.[19] Further, after 28 June 1991,[20] the land was also unavailable for exploration.[21]

Aquila's Exploration Licence

[19] Section 18 of the Mining Act.

[20] Being the commencement date of s 16 of the Mining Amendment Act 1990 (WA).

[21] Section 57(2d) and s 57(2e) of the Mining Act.

On or around 24 May 2004, Aquila applied for an exploration licence under the Mining Act.[22] The application was made in relation to 32 blocks of land. Some of the blocks of land included land within the area of BHP's Exploration Licence. On or around 23 March 2005, the Minister granted the licence (Aquila's Exploration Licence)[23] under the Mining Act.[24]
[22] The application was made under s 58 of the Mining Act.
[23] Exploration Licence 47/1413‑I.
[24] The application was granted under s 57(1) of the Mining Act.

The area of Aquila's Exploration Licence:
1.excluded land that was within the area of BHP's Exploration Licence; and
2.was in part adjacent to, and shared a boundary with, the area over which BHP's Exploration Licence was granted.
Since about 23 March 2005, the land over which Aquila's Exploration Licence was granted and remains in force has not been open for mining, nor available for exploration.

Converting exploration licences into mining leases

At all material times, s 67 of the Mining Act gave the holder of an exploration licence the right to apply for and, subject to s 75(9), to have granted under s 75(7), a mining lease over any part of the land the subject of the exploration licence. Section 75(7) provided that, in the case of an application for a mining lease made by the holder of an exploration licence, the Minister shall, subject to other provisions of the Act,[25] grant to the holder one or more mining leases over any parts of the land the subject of the exploration licence.

The mining leases

[25] Prior to 10 February 2006, the Minister's obligation to do this was 'subject to the Act'. From 10 February 2006, it was 'subject to s 75(8)' - see the Mining Amendment Act 2004 (WA) s 31; Western Australia, Government Gazette, No 24 (3 February 2006) 516.

On 22 July 2005, BHP applied for mining leases over areas within BHP's Exploration Licence, being mining leases 47/673‑I to 47/691‑I.
On 19 December 2013, Aquila applied for a mining lease over an area within Aquila's Exploration Licence, mining lease 47/1494‑I.
On or around 6 June 2014, the Minister granted mining leases 47/683‑I to 47/691‑I to BHP by way of a partial conversion of BHP's Exploration Licence under s 75(7) of the Mining Act. I will refer to the areas covered by mining leases 47/685‑I, 47/686‑I, 47/688‑I and 47/689‑I collectively as 'BHP's Neighbouring Tenure'.[26]
[26] The areas of these leases are shown on the map annexed to these reasons.

BHP's Neighbouring Tenure:
1.does not include land over which Aquila's Exploration Licence was granted; and
2.is in part adjacent to, and shares a boundary with, the area over which Aquila's Exploration Licence was granted.
On or around 14 May 2018, the Minister granted mining lease 47/1494‑I to Aquila by way of a partial conversion of Aquila's Exploration Licence under s 67(1) and s 75(7) of the Mining Act (Aquila's Mining Lease).
The areas of both Aquila's Mining Lease and Aquila's Exploration Licence (at least until 2018[27]) shared a boundary with BHP's Neighbouring Tenure. Both of those Aquila tenements exclude land over which two of the mining leases in BHP's Neighbouring Tenure (mining leases 47/685‑I and 47/689‑I) were granted.
[27] See Agreed Facts [52(b)], [55(b)].
The location of the boundary between the areas of those two Aquila tenements and those two BHP mining leases is, in part, identified by the area of BHP's Exploration Licence, which in turn is identified by the area of the Rocklea Temporary Reserve. In other words, the Disputed Area is the area of land that falls within BHP's mining leases 47/685‑I and 47/689‑I if the Rocklea Temporary Reserve is defined by reference to the Old Homestead, but falls within Aquila's tenements if the Rocklea Temporary Reserve is defined by reference to the New Homestead.
The boundaries between the areas of the other mining leases in BHP's Neighbouring Tenure (47/686‑I and 47/688‑I) and Aquila's tenements are unaffected regardless of how the area of the Rocklea Temporary Reserve is defined.

Survey of Aquila's Mining Lease[28]

[28] See Agreed Facts [59] ‑ [61].

On 25 June 2018, Aquila was directed to survey Aquila's Mining Lease. At that time, it appears that the Department considered that the proper reference point for the Rocklea Temporary Reserve was the Old Homestead.[29]
[29] Witness Statement of Peter Arthur Winter filed 9 June 2023 (Winter Witness Statement) [43] ‑ [51].
On 17 August 2018, after meeting with a Peter Winter (representing Aquila), the Department changed its mind.[30] Shortly after the meeting, the Department instructed a Phillip Richards to survey Aquila's Mining Lease (Survey).[31] Mr Richards conducted the Survey on the basis that the Rocklea Temporary Reserve was defined by reference to the New Homestead.[32] On 10 October 2018, Mr Richards reported to the Department on the Survey (Survey Report).[33]
[30] Winter Witness Statement [46] ‑ [51].
[31] See also Agreed Chronology row 74.
[32] See, for example, Exhibit 9.275 page 3542 and Exhibit 9.281 page 3562.
[33] See also Agreed Chronology row 75.
On 17 October 2018, the boundaries were altered by the Department, in accordance with the Survey Report.[34]

Litigation[35]

[34] See also Agreed Chronology row 76.

[35] See Agreed Facts [62] ‑ [66] and Agreed Chronology row 92.

On 21 November 2018, BHP lodged an objection to the Survey Report (the Objection).

Over seven months later, on 31 July 2019, BHP commenced civil proceedings in the Warden's Court by filing a plaint (the Plaint). On 16 August 2019, Aquila filed a response to the Plaint in which it pleaded that the Plaint was an abuse of process because BHP had already lodged the Objection to resolve the same issues.
On 5 September 2019, BHP applied for orders that (among other things) the Objection be heard immediately after the Plaint, and that the hearing of the Objection listed for 24 to 26 September 2019 be vacated if the Plaint was not also listed for a substantive hearing in the same period. On 16 September 2019, Aquila made submissions to the Warden opposing the orders sought by BHP and asserting that the Plaint was an abuse of process. On 18 September 2019, the Warden declined to make the orders sought by BHP.
The Warden heard the Objection on 24 and 25 September 2019. On 4 November 2020, the Warden recommended that the Minister:
1.uphold the Objection;
2.set aside the Survey; and
3.direct that the boundaries of Aquila's Mining Lease be delineated on the basis that it not include land that was formerly the subject of the Rocklea Temporary Reserve as defined by reference to the Old Homestead.
On 30 April 2021, Aquila filed the writ and statement of claim in these proceedings and an application for judicial review of the Warden's recommendation.
The following month, BHP withdrew the Plaint with Aquila's consent.[36]
[36] Agreed Chronology row 94.
On or about 4 October 2023, BHP sought a permanent stay of these proceedings. At first instance, BHP's application for a stay was dismissed. An appeal against that decision was dismissed.[37]
[37] I refer to this as the 'Stay Decision'.
The Minister has not determined the Objection[38] pending determination of the application for judicial review. As the outcome of these proceedings is likely to resolve the judicial review proceedings, the judicial review proceedings have been stayed pending the outcome of these proceedings.
[38] under reg 120A(5) of the Mining Regulations 1981 (WA).
The Minister is the fourth defendant in these proceedings and has filed a notice of intention to abide.[39]
[39] Fourth Defendant's Notice to Abide by Decision of the Court filed 21 May 2021.

Overview of evidence

Witness statements from 13 people were filed. Other than expressly noted in these reasons, the accuracy and credibility of their evidence was not challenged, and I accept it. Indeed, only two were required to give oral evidence - Aquila's witness Michael Herbert and BHP's witness Christopher Clegg.

Witnesses who saw Rocklea Station in 1967

Three of the witnesses gave evidence of their observations of Rocklea Station in and around 1967 - Stephen Troy, David Cox and Mr Herbert. I will discuss their evidence when discussing the first key issue.

Mr Clegg - the Department's processes and plans

Also relevant to the first key issue is the evidence of Mr Clegg.
Mr Clegg is a former employee of the Department who later undertook tenement management for BHP. He gave evidence as to the departmental processes at the time he began working there in 1971. He also gave evidence about the marking out of BHP's mining leases in 2005.
Mr Clegg began a career in the mining industry with the Department[40] in 1971. He worked for the Department until 1986.[41] He said that the period in which he worked on temporary reserves was probably 1973 to 1975.[42]
[40] At that time, called the Western Australian Department of Mines.
[41] Witness Statement of Christopher Clegg filed 18 October 2023 (Clegg Witness Statement) [2].
[42] ts 388.
Mr Clegg gave evidence as to the public plans held by the Department prior to the introduction of the 'Tengraph' electronic mapping system.[43] I will discuss this evidence when dealing with what material was incorporated into the instrument recording the Minister's decision.[44]
[43] Tengraph is a spatial enquiry and mapping system displaying the position of Western Australian mining tenements and petroleum titles in relation to other land information - see the Witness Statement of Annette Sophie Thomas filed 20 October 2023 (Thomas Witness Statement) [6].
[44] See under the subheading 'If it is legally ambiguous, is the Page 11 Plan necessarily incorporated?'
In addition, Mr Clegg gave evidence about the documents on Mines File 384/67. I will discuss this evidence when dealing with the grant of the Rocklea Temporary Reserve.[45]
[45] See under the heading 'The grant of the Rocklea Temporary Reserve and right of occupancy'.
Finally, Mr Clegg gave evidence as to the Department's processes in relation to temporary reserves. He said he was not aware of anything that caused him to believe that the processes in 1967 (when the Rocklea Temporary Reserve was created) were materially different to the processes he found when he commenced working in the Department. He said that, from what he observed when he worked at the Department, the processes he learned and described in his witness statement were well established.[46]
[46] Clegg Witness Statement [33].
Aquila noted that Mr Clegg had not explained in his witness statement the basis for his claim that the processes were well established. Aquila did not object to BHP adducing oral evidence from Mr Clegg in relation to this point.
In examination‑in‑chief, Mr Clegg was asked to explain what he meant when he said that the processes in relation to the temporary reserves were well established. He said:[47]
[T]he process was well documented through a process legend which was always endorsed on written temporary reserve applications. In my time, the applications came in and they would be endorsed as to the personnel that the application had to go to for various assessments. So it's usually on the left-hand side of the document and it would be, for example, PR would mean Principal Registrar, RO would be the Records Office, CD would be the Chief Draftsman, and then it may come back to the principal registrar again and then it would go to the DGS which was the Director of Geological Survey and all of those processes were well defined primarily because they were essential inputs required for the administration to make a decision in relation to a temporary reserve.
[47] ts 385 ‑ 386.
Mr Clegg said he had seen such 'process legends' in Mines File 384/67, the Mines file in relation to the Rocklea Temporary Reserve.[48] He identified multiple examples.[49]
[48] ts 386.
[49] ts 386 ‑ 387, referring to Exhibit 1.1 pages 215, 218, 219, and 221.
In its closing submissions, Aquila said that Mr Clegg's evidence was of little weight. It points out that, during Mr Clegg's long employment with the Department, he actually only dealt with temporary reserves over a two or three year period between 1973 and 1975. Further, much of the statements in Mr Clegg's witness statements concerned tenements, not temporary reserves.[50]
[50] ts 438 ‑ 439.
Having regard to Mr Clegg's evidence and the documents on Mines File 384/67 (which were created in 1967), I accept BHP's submission that I should infer that the processes in place when Mr Clegg worked in the Department were in place in 1967. For the same reasons, I accept his evidence. His evidence was entirely consistent with the contemporaneous documents.
Aquila also submits that Mr Clegg was unable to recall events that had been described in an email sent by a Mr Stevens of the Department to a Ms Keith at BHP on 12 November 2018.[51] Aquila says that Mr Stevens' account should therefore be preferred. As I later explain, I consider the events said to involve Mr Clegg to be irrelevant.[52] Further, his failure to remember the particular events described (assuming he was involved in them) does not cause me to doubt his general reliability or credibility.

Mr Dinh - inaccuracy of location of Rocklea Homestead on Page 11 Plan

[51] Exhibit 9.281 page 3562.

[52] See under the subheading 'BHP's failure to survey' under the discussion of Key Issue 3.

Aquila adduced evidence from an expert, Vincent Dinh. This was primarily[53] to establish that the location of a square marking a homestead in Rocklea on a particular plan was not the precise geographic location on the ground of the Old Homestead (or the New Homestead). This was not in dispute.
[53] See ts 443.
The plan to which Mr Dinh referred was of great significance in this case. It was located on page 11 of Mines File 384/67. I will refer to it as the 'Page 11 Plan'.

Mr Trinder - analysis of maps and plans

Mr Trinder is the 'Superintendent Spatial Data' of the first defendant. He has approximately 28 years' experience as a geographic information system (GIS) specialist. A GIS is a computer system that is used to capture, store, check, analyse and display data related to positions on the earth's surface.[54]
[54] Witness Statement of Simon Andrew Trinder filed 1 November 2023 (Trinder Witness Statement) [1] ‑ [2].
Mr Trinder analysed the maps and plans relevant to this case. His evidence shows, among other things, that the Rocklea Temporary Reserve was plotted on the Page 11 Plan by reference to the square on that plan purporting to mark the location of the Old Homestead.[55]
[55] See Trinder Witness Statement [12] ‑ [13].
Aquila challenged the weight of his evidence. However, apart from a single (and irrelevant) issue,[56] Aquila did not contend that any of his evidence was incorrect.[57]

Mr Winter - investigated for Aquila

[56] Being which version of a public plan an extract had come from. This is discussed later under the subheading 'The origin of the Page 11 Plan - a red herring'.

[57] ts 441 ‑ 442.

Peter Winter is employed by the company managing the joint venture to which the plaintiffs are parties. He gave evidence of, among other things, investigations that he carried out in relation to the way in which the boundary of the Rocklea Temporary Reserve had been determined. I will discuss his evidence when discussing Key Issue 2.[58]

Other witnesses

[58] Being whether the claims are statute‑barred.

Jonathon Chiam and Elizabeth Plajzer, solicitors for Aquila and BHP respectively, gave evidence of public documents they had located.[59]
[59] See the Witness Statement of Jonathon Chiam filed 9 June 2023 and the Witness Statement of Elizabeth Plajzer filed 20 October 2023.
BHP adduced evidence from a number of other witnesses, whose evidence was described as follows:[60]
[60] BHP's Submissions [142].
…
(c)Michael Fitzpatrick, who undertook tenement management for [BHP]. His evidence goes to exploration and expenditure reports prepared by or on behalf of [BHP], and the marking out of [BHP]'s mining leases in 2005.
(d)Bree Keith, an employee of BHP involved in approvals. Ms Keith became aware of changes in tenement boundaries shown in TENGRAPH in October 2018. Her evidence otherwise goes to expenditure and operational reports prepared by or on behalf of [BHP].
(e)Lambodar Moharana, a resource analyst with BHP. His evidence goes to [BHP]'s activities in the area of TR4286H and [BHP]'s Exploration Licence.
…
(g)Annette Thomas, an employee of BHP involved in tenement management. Her evidence concerns information on the Department's TENGRAPH system.

Documents

The trial bundle comprised 12 lever arch volumes. Only those documents referred to (and explained) became exhibits.

Key Issue 1 - which homestead?

The first key issue is whether the boundary of the Rocklea Temporary Reserve was determined by reference to the Old Homestead or the New Homestead.
The answer will turn on four subordinate issues.
The first is what type of evidence is admissible. As I will explain, material incorporated into the documents creating the Rocklea Temporary Reserve, expressly or by necessary implication, is admissible. So too is extrinsic evidence to identify, objectively, a thing or place referred to in the relevant document (Identification Evidence).
The second is what material was incorporated into the documents creating the Rocklea Temporary Reserve.
The third is what is the Identification Evidence.
The fourth and final subordinate issue is what does the admissible evidence establish.
The parties agree that some evidence is admissible. They disagree as to the extent of the admissible evidence. Aquila disputes the admissibility of many of the documents said to be admissible by BHP. The parties also disagree as to what flows from the admissible evidence.
Before dealing with these subordinate issues, I will set out the events surrounding the grant of the Rocklea Temporary Reserve in greater detail.

The grant of the Rocklea Temporary Reserve and right of occupancy

On or around 26 May 1967, BHP[61] applied for seven temporary reserves.[62] This was done by letter to the Under Secretary of Mines (Application Letter[63]) with an attachment describing the areas over which the temporary reserves were sought (Attachment[64]). The areas were said to cover a maximum of 50 square miles and to all be generally around an existing temporary reserve, Temporary Reserve 3156. The Application Letter also implicitly applied for the right to occupy those temporary reserves to prospect for iron ore.[65]
[61] Meaning, in this instance, its predecessors in title.
[62] There had been an earlier application (Exhibit 1.1 pages 220 ‑ 223), but it was deficient.
[63] Exhibit 1.1 page 215.
[64] Exhibit 1.1 page 216.
[65] This is plain from its terms. See also Agreed Facts [19] and the Agreed Chronology row 10 in relation to the Rocklea Temporary Reserve.
The seven areas were labelled numerically and described by reference to various features. The numbers 4281^H, 4282^H, 4283^H, 4284^H, 4285^H, 4286^H, and 4287^H were written in red pen in the left‑hand margins of the Attachment next to each of the areas described. It is common ground that the Department allocated these numbers as the reference number for each area sought to be made a temporary reserve.[66]
[66] See also Exhibit 1.1 page 204 and Clegg Witness Statement [38].
In the Attachment, the sixth area (labelled 'Area (6)') was designated 4286^H. This is the area that became the Rocklea Temporary Reserve. I will refer to the application for a temporary reserve over that area as the 'Rocklea Temporary Reserve Application'.
In the Attachment, Area (6) was described as:
Datum peg 10.0 miles at bearing 259^o 00' from Rocklea Homestead (From Datum peg, the baroundaries [sic] of Area (6) are:
5.0 miles at bearing 192^o30', thence
10.0 "    "    "      282^o30', thence
5.0   "    "    "      12^o 30', thence
10.0 "    "    "     102^o 30', back to datum peg.
Aquila notes that Area (6) was not described by reference to a plan, in contrast to four of the other areas in the Attachment.[67]
[67] See, for example, the Plaintiffs' Opening Submissions in Reply filed 5 March 2024 (Aquila's Reply Submissions) [46].
This is correct. However, I do not consider this assists Aquila's case.
The four areas which were described by reference to a plan (being Areas (3), (4), (5) and (7)) used 'Mudlark Well' as the reference point. The description of each of those areas began:
Datum peg [a number of miles] at [a specified bearing in degrees and minutes] from Mudlark Well (North West Corner of Newman Sheets, Scale 1:250,000) from Datum peg, the boundaries of [Area (3)/Area (4)/Area (5)/Area (7)] are:
In addition to the description of Area (6), two other areas were not described by reference to a plan (being Areas (1) and (2)). The description of each of those areas began:
Datum peg [a number of miles] at [a specified bearing in degrees and minutes] from Mt Newman. From Datum peg, the boundaries of [Area (1)/Area (2)] are:
I infer that the reason why the descriptions of Areas (3), (4), (5) and (7) referred to a plan, unlike the descriptions of Areas (1), (2) and (6), is because 'Mudlark Well' was not as identifiable and obvious as a homestead or Mt Newman itself.[68] Unlike a homestead and Mt Newman, the location of a well may not be known to anyone other than those living and working on the land.
[68] Although it was marked on a public plan. And see ts 272.

After the Application Letter was received, it seems that the Department created a file for the applications, Mines File 384/67. Documents on a Department file were routinely filed sequentially by date from earliest creation date to the latest date. Each folio page of the file was given a folio reference, numbered sequentially in ascending order, and usually notated on the top right‑hand corner of each page.[69]
[69] Clegg Witness Statement [34].
Mr Clegg said:[70]
During my employment with the Department, after a temporary reserve application was received and allocated a number, a draftsperson (geospatial officer) was tasked with preparing a plan (referred to as an Appraisal Plan) for the file and a document (referred to as [an Appraisal Schedule[71]]) which together identified any excluded land, including Crown reserves and freehold title, and the extent of encroachment onto any existing mining tenements or approved temporary reserves affected by the application that were not available for inclusion in the application under appraisal. The Appraisal Plan provided a visual depiction of the area the subject of the application plotted on an extract copy of the relevant Public Plan based on the written description included in the application letter and, where provided, the applicant's plan.
[70] Clegg Witness Statement [39].
[71] The full descriptor used by the Department was 'Land Appraisal Summary Schedule'.
Mr Clegg identified some documents on Mines File 384/67 as being Appraisal Plans and Appraisal Schedules.[72]
[72] Clegg Witness Statement [39] ‑ [43].
There are two Appraisal Plans on Mines File 384/67. One plan was for the Rocklea Temporary Reserve Application, at folio 11[73] (which I refer to as the 'Page 11 Plan'). The other was at folio 10 and was for the other six applications.[74] I will refer to this as the 'Page 10 Plan'.
[73] Exhibit 1.1 page 213.
[74] Exhibit 1.1 page 214.
The Page 11 Plan purports to mark the boundary of the Rocklea Temporary Reserve. The location of the boundary was calculated by reference to a square purporting to mark the location of a homestead in Rocklea on that plan.[75] Similarly, the Page 10 Plan appears to mark the boundaries of the other six areas by using the location of marks representing 'Mount Newman' and 'Mudlark Well' (being the reference points for those areas) on the Newman public plan then in force.[76]
[75] See Trinder Witness Statement [12] ‑ [13].
[76] See BHP's Submissions [43] ‑ [44] for a useful summary of the documents that demonstrate this. See also BHP's Submissions [46] in relation to the temporary reserves granted to, or that were about to be granted to, a J.D. Nicholas.
The Page 11 Plan bears a handwritten notation in the bottom right‑hand corner which reads 'Onslow 13 Ten Mile Topo'. Mr Clegg said:[77]
I understand this to mean that the [Page 11 Plan] is an extract of the Department's Public Plan based on Western Australia Sheet 13 (Onslow) with a scale of 1 inch to 10 miles (that is, 1 inch on the plan represents 10 miles on the ground).
[77] Clegg Witness Statement [41].
I will refer to the 'Department's Public Plan' to which Mr Clegg refers, and from which the Page 11 Plan appears to have been extracted, as the 'Onslow 13 Plan'. I will later say more about the Onslow 13 Plan.[78]
[78] See under the subheading 'If it is legally ambiguous, is the Page 11 Plan necessarily incorporated?' under the heading 'What material was incorporated'.
Mr Clegg said:[79]
Consistent with my experience, the area the subject of application 4286H shown on the [Page 11 Plan] appears to have been plotted onto an extract of the [Onslow 13 Plan] by 'scaling' from the definable feature identified in the description provided by the applicant, in this case, Rocklea Homestead. That gives the datum or commencement point that constitutes a corner point of the temporary reserve. From the datum or commencement point, the boundaries appear to have been drawn using the bearings and distances set out in the description. Based on my experience in the Department, that was most likely done using a scaled rule appropriate to the scale of the [Onslow 13 Plan] and protractor to define the directional bearing of each line relative to true north. The combination of successive bearings and distance result in the final meeting point of the coordinates to form the shape of a rectangular parallelogram.
[79] Clegg Witness Statement [42].
There are four Appraisal Schedules on Mines File 384/67, at folios 12 ‑ 15. The first dealt with the application designated 4287^H.[80] The second dealt with the Rocklea Temporary Reserve Application.[81] The third dealt with the applications designated 4283^H, 4284^H, and 4285^H.[82] The fourth dealt with the applications designated 4281^H and 4282^H.[83]
[80] Exhibit 1.1 page 212.
[81] Exhibit 1.1 page 211.
[82] Exhibit 1.1 page 210.
[83] Exhibit 1.1 page 209.
Each has notes and signatures at the bottom. On each, there is a name 'J. Regan' above the date 14 June 1967. Also written on each is 'C.D. please note'. There is the word 'Noted' (and, on three of the four Appraisal Schedules, an illegible signature) above the date 15 June 1967. On three, 'P.R. No objection subject to the usual conditions' is written above an illegible signature and the date 16 June 1967. On the fourth, 'P.R. No objection subject to the above encroachments and usual conditions' is written above an illegible signature and the date 16 June 1967. The 'P.R.' was the Principal Registrar. The 'C.D.' was the Chief Draftsman.[84]
[84] ts 386.
From the location of the Appraisal Plans and Appraisal Schedules on Mines File 384/67, and the notations and dates on the Appraisal Schedules, I conclude that the Appraisal Plans, including the Page 11 Plan, were created by 14 June 1967.[85]
[85] The parties agreed that, from its location in the file, it had been prepared and placed on the file by 31 July 1967. See Agreed Facts [21] and the Agreed Chronology row 14. I have found it to be earlier, but nothing turns on this.
Three of the four Appraisal Schedules, including the one for the Rocklea Temporary Reserve Application, record 'nil' next to the item 'ENCROACHMENT MINING TENEMENTS'. The fourth, the one for the areas designated 4281^Hand 4282^H, does not. Instead, it refers to four temporary reserves which had been applied for by a J.D. Nicholas (noting that two had not yet been approved), and it records 'See p.10 hereunder'.[86]
[86] Exhibit 1.1 page 209.
Aquila notes that this is a reference to the Page 10 Plan. It submits that this notation suggests that the Page 10 Plan was used for the purposes of checking whether areas sought to be made temporary reserves encroached or overlapped with areas that were already temporary reserves or the subject of an earlier application.[87] I will say more about this after discussing the next document, which Aquila relies upon for a similar submission.
[87] ts 162.
On 24 July 1967, the Principal Registrar told the Under Secretary that five of the seven applications, including the Rocklea Temporary Reserve Application, were 'clear and may be granted'.[88] In relation to the other two, the Principal Registrar wrote:
… however, No. 4282H is substantially upon existing iron ore Reserve No. 4192H (J. D. Nicholas) and, therefore, of necessity, must be refused, while No. 4281H is substantially upon applications for iron ore Reserves Nos. 4266H and 4267H by J. D. Nicholas. The plan at page 10 File 384/67 shows both these applications (Nos. 4281H and 4282H) to be on and close to a group of reserves held by J. D. Nicholas for iron ore and, therefore, it seems more logical to refuse both applications and grant those by Nicholas, especially as No. 4282H must be refused. If the applications by Nicholas for Nos. 4266H and 4267H are refused and [BHP[89]]'s Application No. 4281H is swung around to clear existing Reserve No. 4192H, the Application No. 4281H could be granted. Applications by Nicholas were received 10.5.67 and those by [BHP] 30.5.67.
[88] Exhibit 1.1 page 206.
[89] The actual application was made by BHP's predecessors in title.
Aquila submits that this shows that the plans were being used to enable the Department to assess the applications, including to check whether the land was available for temporary reservation.[90] It submits that the plans were used to depict an approximate location of the area applied for, so that this check could be made.[91]
[90] Plaintiffs' Opening Submissions filed 19 February 2024 (Aquila's Submissions) [87] and ts 163, 193.
[91] ts 163, 452 ‑ 453.
Having regard to the documents I have referred to so far, I accept this. BHP did not contend otherwise.[92] The dispute between the parties was whether the plans also served the purpose of identifying the area over which a temporary reserve was being applied for.
[92] See for example ts 271, 273, 276, 279.
Aquila says the plans did not serve that purpose. It submits that they only provided an approximate location for the purpose of checking for encroachments.[93] Aquila refers to Mr Clegg's evidence, where he agreed that plans were used to 'check for or clear for encroachments'.[94] Aquila also notes that there was no obligation to mark out or survey an area before making an application for a temporary reserve. Aquila says this would suggest that the boundaries would not be accurately plotted on any departmental map.[95]
[93] See ts 163, 452.
[94] ts 391.
[95] ts 452 ‑ 453.
BHP says that Aquila's submissions draw a false distinction. BHP submits that it is not possible to determine if there is an encroachment without first identifying where the area actually is.[96]
[96] ts 279.
As odd as it seems, both may be right. Plainly, it is not possible to determine if there is an encroachment without first identifying where the area applied for is. However, the precision required will vary depending on whether the area is close to existing temporary reserves or areas over which there are licences or leases. To take the examples in this case, the Page 10 Plan shows that two of the areas sought to be made temporary reserves by the Application Letter were very close to, and indeed overlapped with, existing temporary reserves. By contrast, the Page 11 Plan does not appear to show any existing temporary reserves in the immediate vicinity of the Rocklea Temporary Reserve Area. Having regard to Mines File 384/67 and the plans in particular, I consider that the plans did serve the purpose of identifying the area, at least approximately.
The Page 11 Plan also has '4096' written at the bottom. Aquila asserts that, as there was no mapping of the application for Temporary Reserve 4096, this means[97]
we now have evidence from the record that it wasn't the case that, invariably, these areas were plotting on a plan in order for it to be progressed to the stage of approval or refusal. It can be refused without there ever being plotting on a map or a plan. The map or the plan is not a critical, usual or necessary step we can deduce from that circumstance because it has been treated and dealt with by both department and Minister without it being placed on a plan or a map.
[97] ts 193 ‑ 194.
I do not accept that this is shown by the absence of a plan for Temporary Reserve 4096. The application in relation to Temporary Reserve 4096 was withdrawn and substituted with differently numbered applications. This had occurred at least by 26 May 1967.[98] It appears that the Appraisal Schedules were created after that date.[99]
[98] See Exhibit 1.1 page 204 (point 3).
[99] See Exhibit 1.1 pages 209 ‑ 212, all of which appear to have been created on 2 June 1967.
The Appraisal Schedule for the Rocklea Temporary Reserve Application also has the words 'NO PLAN' written at the bottom above the signatures. Aquila referred to this entry on a number of occasions.[100] It was not entirely clear why. Aquila may have been asserting that it showed, when considered with the other Appraisal Schedules which did not have those words written on them, that the Minister was not provided with the Page 11 Plan because there were no identified encroachments, and all the Minister needed to know was that fact. If that was Aquila's assertion, I would not draw that inference from the notations. It would be no more than speculation.
[100] ts 162, 193, 454.
On or around 31 July 1967, the Under Secretary formally recommended, in writing to the Minister, that some of the applications, including the Rocklea Temporary Reserve Application, be approved.[101] The approvals were to be in respect of Crown Land only, with rights to 31 March 1968 and subject to '[t]he usual iron ore conditions',[102] which included, among others, that
within 60 days of approval of the right of occupancy appearing in the Government Gazette, the occupant shall mark at a corner of the boundary of the Temporary Reserve a landmark consisting of a post or cairn to serve as a commencing or datum point and shall advise the Minister for Mines in writing the position of such point.[103]
[101] Exhibit 2.3 page 491.
[102] Exhibit 1.1 page 205.
[103] Exhibit 1.1 page 200.
On 4 August 1967, the Minister signed the recommendation document in two places (Reservation Document).[104] First, under a stamp 'APPROVED', next to which the numbers of those temporary reserves which had been approved (including the Rocklea Temporary Reserve) were handwritten (at an unknown time). Second, under a stamp 'REFUSED', next to which the numbers of those temporary reserves which had been refused were handwritten (at an unknown time).
[104] Exhibit 2.3 page 491.
Aquila points to the references in the Reservation Document to 'Applications' and the Minister's use of the words 'APPROVED' and 'REFUSED' in relation to those 'Applications'. It submits that the 'more plausible characterisation of the events is that the Minister approved the [Rocklea Temporary Reserve] Application, not that the Minister accepted the Under Secretary's recommendation'.[105] BHP points out that, in its statement of claim, Aquila pleads that the Minister accepted the Under Secretary's recommendation to approve the Rocklea Temporary Reserve Application.[106] It is also an agreed fact.[107]
[105] Aquila's Reply Submissions [43].
[106] Minute of Proposed Further Amended Writ of Summons Indorsed with Statement of Claim filed 28 March 2024 (Statement of Claim) [15] ‑ [16(a)].
[107] Agreed Facts [23].
The Reservation Document sets out the Under Secretary's 'formal' recommendation. The Minister, by his signatures under the two stamps, approved the applications the Under Secretary had recommended should be approved, and refused those that the Under Secretary had recommended should be refused. In my view, this can be properly characterised as the Minister accepting the Under Secretary's recommendation.
By signing the Reservation Document, the Minister:[108]
1.temporarily reserved Area (6) from occupation under s 276 of the Repealed Act; and
2.authorised the temporary occupation of Area (6), subject to conditions and the Governor's approval.
[108] The Minister also temporarily reserved and authorised the occupation of Areas (3) ‑ (5) and (7), in accordance with the Under Secretary's recommendations.
BHP submits that it is not possible to be certain that the handwritten temporary reserve numbers next to the stamps were there when the Minister signed the Reservation Document.[109] I accept this. However, I consider it is more likely that they were. Otherwise, the Minister would have signed a document which would not show which applications were approved and which were refused. The document would have been entirely meaningless. I doubt a Minister would sign such a document.
[109] ts 278.
The original Reservation Document is not on Mines File 384/67. It appears at folio 14[110] of Mines File 1563/66 (which was the first Mines File for Temporary Reserve 3837^H[111]). A copy of the Reservation Document (without the Minister's signatures) is on Mines File 384/67.[112]
[110] Exhibit 2.3 page 491.
[111] This was common ground - see the description of document 3 in volume 2 of the Trial Bundles (which is Exhibit 2.3 page 416).
[112] Exhibit 1.1 page 205.
On 8 August 1967, the Under Secretary wrote to inform BHP of the outcome of the applications.[113] The Under Secretary stated, among other things, that the Minister had approved the Rocklea Temporary Reserve Application. The Under Secretary wrote:[114]
These approvals are in respect only to Crown Land … with occupancy rights given to the [named companies] to prospect for iron ore until 31.3.1968 subject to: -
[The letter then listed conditions, including the payment of fees]
and upon receipt of your remittance for this total amount, the approvals will be submitted for confirmation in Executive Council.
[113] Exhibit 1.1 page 204.
[114] Exhibit 1.1 page 203.
At the foot of the page, there was a note from the Principal Registrar to the Mining Registrar at Marble Bar:
Submitted for your information together with a sketch to enable you to accurately plot the reserve on your office plans.
Aquila submits that this shows that the Governor's role was treated as a rubber stamp.[115] It makes this submission in support of its contentions in relation to the legislative framework.[116] I accept that the Under Secretary and Principal Registrar may have assumed that the Governor's confirmation was merely a rubber stamp. The assumption may also have been based on what happened in practice. However, I do not consider this to be of assistance in interpreting the statutory provisions.
[115] ts 165 ‑ 166.
[116] Discussed under the subheading 'Governor's role'.
Between 6 September 1967 and 31 December 1981, the Rocklea Temporary Reserve was recorded in a handwritten register maintained by the Department.[117] Under the typed column descriptor 'Locality', 'Rocklea Homestead' was written. In the same column, but on the next row next to an entry '4286^H', 'See description folio 8 of Mines File 384/67' was written. Aquila notes that folio 8 is the Attachment to the Application Letter, not a plan.[118]
[117] See the Agreed Chronology row 20.
[118] ts 170.

On or around 28 September 1967, the Minister recommended that Cabinet (Executive Council) advise the Governor in Council to:
1.confirm, among others, the temporary reservation by the Minister of the Temporary Reserve 'situated Rocklea Homestead … as shown hachured "red" on the plans at pages … 11 of Mines File 384/67'; and
2.approve the Minister's authorisation of BHP to temporarily occupy the Rocklea Temporary Reserve for a period expiring on 31 March 1968 for the purpose of prospecting for iron ore, subject to attached conditions, among other things.[119]
[119] Agreed Facts [24].
The document was titled 'Minute Paper for the Executive Council'. I will refer to it as the 'Minister's Recommendation'.
One of the 'attached conditions' referred to in the Minister's Recommendation was the condition recommended by the Under Secretary (referred to earlier) that the occupant mark a landmark at a corner of the boundary of the Rocklea Temporary Reserve to serve as a datum point and advise the Minister of the position of such point.
On 28 September 1967, Cabinet (Executive Council) advised the Governor in Council in the terms recommended by the Minister.
The same day, the Governor in Council confirmed the Minister's temporary reservation of the Rocklea Temporary Reserve and approved the Minister's authorisation of BHP to temporarily occupy the Rocklea Temporary Reserve on the terms as advised.
If the Governor in Council had not confirmed the Minister's temporary reservation of the Rocklea Temporary Reserve within 12 months, the Rocklea Temporary Reserve would have ceased to be reserved, by operation of s 276 of the Repealed Act.
Upon the Governor in Council approving the Minister's authorisation of BHP to temporarily occupy the Rocklea Temporary Reserve, BHP was authorised to occupy the Rocklea Temporary Reserve in accordance with s 276 of the Repealed Act. At all times between 28 September 1967 and 1 June 1982, BHP had a right to occupy the Rocklea Temporary Reserve for the purpose of prospecting for iron ore.

On 6 October 1967, the Rocklea Temporary Reserve was notified in the Government Gazette of Western Australia. The entry in the Gazette noted the Mines File number '384/67'.[120]
[120] Exhibit 3.31 page 651. See also Agreed Facts [33].
The following month, BHP marked a datum point for the Rocklea Temporary Reserve by driving a black 5 foot star iron approximately 2 feet into the ground. A week later, BHP wrote to the Under Secretary, stating that a star iron had been inserted into the ground for the approved temporary reserves (including the Rocklea Temporary Reserve).[121] The star iron for the Rocklea Temporary Reserve was subsequently lost. Despite searches by Aquila in 2013 and 2018, and searches by BHP in 2018, the star iron was not found.
[121] Exhibit 1.1 page 196.
In addition to the events that occurred around the time of the creation of the Rocklea Temporary Reserve, Aquila relies on a letter written by the Superintendent, Surveys and Mapping Branch to Mr Williams at BHP on 19 November 1974 (Superintendent's Letter).[122] Aquila submits that the Superintendent's Letter illustrates the importance to the Department of the descriptions of areas (as distinct to plans).[123] I do not accept this.
[122] Exhibit 1.1 page 105.
[123] ts 197.
The Superintendent's Letter related to the temporary reserves described as Area (3), Area (4) and Area (5) in the Attachment to the Application Letter. The Superintendent's Letter said:
Herewith information requested on the description of Temporary Reserves Nos. 4283H, 4284H, 4285H requested by phone 19/11/74.
The descriptions are those supplied by your company when the [temporary reserves] were applied for and the plotted positions of the [temporary reserves] on the 50 chain to an inch line compilations supplied abd [sic] the 1:50,000 Mines Public Plans of Mudlark and Governor are consistant [sic] with these descriptions.
Note that the datum pegs referred to in your advice of 15th November, 1967 (copy attached[124]) would not be recognised by this Department unless they did, in fact, prove to be positioned at the respective [temporary reserve] corners as shown on the referred to plans. Current practice is to relate low level aerial photography of the premarked positions to the aerial photos used to compile the 50 chain line compilations, preferably by a licensed surveyor.
[124] Being the letter referred to earlier, in which BHP told the Under Secretary that a star iron had been inserted into the ground for the approved temporary reserves - Exhibit 1.1 page 196.
Handwritten next to the first paragraph was 'copy page 8'. Page 8 is the Attachment to the Application.
From the introductory sentence, it appears that Mr Williams had asked to be given the descriptions of three of the temporary reserves sought in the Application Letter, over six years earlier. It appears that the Superintendent provided that information by providing the Attachment to the Application. The second sentence notes that the plotted positions on the named public plan of those temporary reserves were consistent with the descriptions in the Attachment. The final paragraph notes that datum pegs referred to in BHP's letter of 15 November 1967 would not be recognised unless they were positioned at the respective temporary reserve corners as shown on the named plan.
Understood in context, the Superintendent's Letter does not illustrate that descriptions were of greater importance to the Department than plans. The Superintendent was responding to Mr Williams' request to be provided with the descriptions.
Aquila points out that the applications referred to in the Superintendent's Letter were those that had referred to plans in the Attachment to the Application.[125] That fact does not support Aquila's original contention that the Superintendent's Letter illustrates the importance to the Department of the descriptions (as distinct to plans). The Superintendent's Letter was a response to a specific request to be told what the descriptions had been for those applications.

Incorporated material and identification evidence is admissible

[125] ts 453 ‑ 454 (responding to BHP's submission at ts 284 ‑ 285). Areas (3), (4) and (5) were the three areas described by reference to a datum peg at a specified distance and bearing from 'Mudlark Well (North West corner of Newman Sheet, Scale 1:250,000)'.

It was common ground that there were no authorities which identified the proper approach to the construction of documents creating a temporary reserve under the Repealed Act.[126] However, both sides identified numerous cases which had considered the proper approach to public documents in analogous contexts.
[126] BHP's Submissions [19] and Aquila Reply Submissions [17].
The cases cited by the parties serve several purposes:
1.First, they establish that there are significant limits on the evidence that is admissible in construing public documents.
2.Second, they explain why that is so.
3.Third, they illustrate how those limits may be applied to the facts of a particular case.

Restrictions on evidence in mining context - Oresearch

BHP cited[127] Consolidated Gold Mining Areas NL v Oresearch NL.[128] In that case, Commissioner Heenan QC[129] dealt with a boundary dispute in relation to an exploration licence. The licence itself did not identify the area of the licence. In the application for the licence, the area had been defined with reference to a feature known as 'Try Again Bore'. The application was accompanied by a Mines Department map which was intended to delineate the boundary of the area. The Try Again Bore was marked on the map in the wrong location.
[127] BHP's Submissions [20].
[128] Consolidated Gold Mining Areas NL v Oresearch NL(1990) 3 WAR 208.
[129] As his Honour then was.
Commissioner Heenan QC described the issue as a choice between an area defined with reference to the true geographic position of a known object or by reference to the mistaken position of that object which had been wrongly believed to be true by all the parties at the time.[130]
[130] Oresearch (221), noting that the same issue arose in Phillips v Crown (1910) 12 CLR 287.
His Honour said that, as the licence itself failed to identify the subject land, it was necessary to identify the subject area by extrinsic evidence. His Honour said:[131]
It is always open to have regard to extrinsic or secondary evidence to identify the subject matter of a document of title, grant or licence, not to alter or interpret the document but to identify the subject matter.
[131] Oresearch (217).
Commissioner Heenan QC noted the need for certainty in determining the boundaries of mining tenements and the need for boundaries to be capable of survey or determination by Departmental officers, other miners and prospectors interested in the area.[132]
[132] Oresearch (221 ‑ 222).
His Honour concluded that the area was defined by reference to its true location.

Restrictions on evidence in planning cases

Both parties referred to cases which discussed the proper approach to the construction of planning and development consents. For ease of reference, I will refer to such cases as 'planning cases'. The relevant principles that emerge from those cases can be summarised as follows.[133]
[133] See, in particular, Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 [42] ‑ [48] (Meagher JA). Meagher JA's analysis of the applicable principles has been repeatedly endorsed - see, for example, BunderraHoldings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement) [2017] NSWCA 263; (2017) 96 NSWLR 434 [22], [72], [158(4)], [191], [193], [195] and HunterIndustrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147; (2019) 101 NSWLR 1 [77].
When construing a consent, it must be kept in mind that a consent is the unilateral act of the consent authority which has an enduring function. It is not the result of a bargaining process between parties. It is not personal to the applicant but enures for the benefit of subsequent owners and occupiers. It is a 'right in rem' with enduring characteristics. For this reason, a narrower approach to extrinsic material is required compared to the approach taken to the construction of a commercial contract.[134]
[134] Allandale [42] ‑ [43] and Bunderra [72] (Leeming JA), [193] (Payne JA).
When construing development consents, it is permissible to have regard to:[135]
1.documents other than the consent itself if those documents are incorporated into the instrument expressly or by necessary implication; and
2.extrinsic evidence to identify a thing or place referred to in the consent.
[135] Allandale [43] ‑ [44] (Meagher JA), [179] (Ward JA); Bunderra [158(4)] (Payne JA).

In relation to the latter, such evidence does not go to construction - it is not led to vary the instrument, but to identify a thing or place referred to in it.[136] To keep the distinction clear, I will refer to this type of evidence as 'Identification Evidence' and documents incorporated into the instrument (expressly or by necessary implication) as 'Incorporated Documents'.

When will a document be said to be incorporated?

Must it be proved that the document was accessible to the public?

[136] Allandale [44].

Aquila asserts that the Page 11 Plan could not be incorporated because BHP had not proved that a member of the public could have accessed the Department's files.[137] In support of this contention, it relies on [39] and [40] of McColl JA's judgment in Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement).[138] BHP submits that McColl JA's concern in those paragraphs was not directed to whether a member of the public could have accessed the council files, but whether a member of the public might have found the document when looking in the council files.[139] I accept BHP's submission.
[137] ts 186 ‑ 187, 255, 459 ‑ 462.
[138] Bunderra.
[139] ts 290 ‑ 292.
In [39] and [40], McColl JA said:[140]
39The review of the authorities earlier referred to demonstrates that the nature of documents held to have been incorporated in this manner are those contemporary to a development consent which give it meaning, which are those to which it might be expected a third party would seek to have recourse (and which would readily be available in council records) if a development consent was prima facie uncertain.
40Documents such as the September GCA Strategy created subsequent to a consent do not lend themselves to this process of inquiry. Tellingly Pasminco could not explain how an inquirer might locate it in the Council's records. A conclusion a subsequently created document was incorporated by necessary implication would create the difficult position Hope J identified in Szabo. I accept that it may be a matter of fact and degree in each case. In this case, however, even if one was to accept a third party may inquire as to the outcome of the exercise Condition 16[4] required, that inquiry would most logically have taken it to the Construction Certificate.
[140] Bunderra [39] ‑ [40].
In my view, McColl JA was not referring to a lack of proof that an inquirer would have been permitted to access the Council's records. Rather, her Honour was pointing out that the document would not have been found by a person looking in the Council's records. First, it was created after the consent had been granted. Second, even if an inquiry was made as to the outcome of the exercise required by a condition of the consent, it would not have led to the document. In a separate judgment, Payne JA raised a similar concern.[141]
[141] Bunderra [194] (Payne J).
In my view, it does not need to be proved that the documents were accessible to the public.

Can subsequent documents be said to be incorporated?

As recorded in the extract of [40] of McColl JA's reasons in Bunderra, her Honour there referred to the 'difficult position Hope J identified' in Auburn Municipal Council v Szabo (Szabo).[142]
[142] Auburn Municipal Council v Szabo (1971) 67 LGRA 427.
In Szabo, Hope J said:[143]
[I]t would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval.
[143] Szabo (434).
McColl JA in Bunderra noted that documents which have been taken to be incorporated by way of necessary implication have generally been documents that existed on or before consent was granted.[144]
[144]Bunderra [23], [40] (McColl JA). See also [62], [66] (Leeming JA), [195] (Payne JA).
Leeming JA in Bunderra said that it would be contrary to well‑settled principle if the legal meaning of a development consent could alter by reference to a document not in existence at the time consent is granted.[145]
[145] Bunderra [66] (Leeming JA).
BHP submits that the issue in Bunderra was whether a document generated after the consent was incorporated by necessary implication. It submits that the court said a document could not be retrospectively incorporated to 'alter the effect of the decision'.[146] BHP submits that:[147]

[E]xtrinsic evidence of the kind of the [Minister's Recommendation] falls into a different category, because what you have is a prima facie ambiguous statement by the Minister that, 'I'm approving application 4286' and then you have a subsequent statement by the Minister to say, '… and this is what I approved'. And we say that is permissible.
[146] ts 300.
[147] ts 300.

I accept that the Minister's Recommendation can be construed as a statement by the Minister of what he had previously approved. I further accept that BHP is not seeking to use the Minister's Recommendation to alter the area covered by the Rocklea Temporary Reserve. I accept that such a document may be admissible. However, I consider that its admissibility turns on whether it is Identification Evidence. I do not accept that a document created after a decision has been made can be said to have been incorporated by necessary implication. That said, as will ultimately be seen, this conclusion is not fatal to BHP's case.

What is 'Identification Evidence'?

Aquila accepts that Identification Evidence is admissible to identify a thing or place referred to in a government instrument.[148] As noted above, such evidence does not go to construction - it is not led to vary the instrument, but to identify a thing or place referred to in it.
[148] Aquila's Submissions [82] and ts 255 ‑ 259.
Aquila seeks, however, to limit the scope of what can be Identification Evidence. Aquila also contends that particular types of Identification Evidence should be given primacy. As I will explain, I do not accept these submissions.
Aquila submits:[149]
77.Primacy should be given to features on the ground rather than their depiction in a document or at least those things on which members of the public are least likely to make a mistake. This is especially so in the case of Area 6 because it is described by reference to a physical landmark and without reference to any plan or map in the context of a broader application for 7 temporary reserves, 4 of which were, conspicuously, described by reference to a map.
78.The relevant features on the ground are those that are observable by a third party at the relevant time …
[149] Aquila's Submissions [77] ‑ [78]. See also Aquila's Reply Submissions [62] ‑ [64].
These submissions would have more force if this was a case like Oresearch. However, this case is not about choosing between the true physical location of a reference point and the location erroneously recorded on a map. This case is about which of two buildings (or complexes) was objectively intended to be the reference point.
Aquila cites three cases in support of paragraph 78 of its submissions: Bunderra, Owners - Strata Plan No 4983 v Canny[150] and Slough Estates Ltd v Slough Borough Council (No 2).[151] As will be seen, those cases do not establish that Identification Evidence is limited to observable features of the land. Rather, they establish that Identification Evidence may include the nature or physical features of the land.
[150] Owners - Strata Plan No 4983 v Canny [2018] NSWCA 275.
[151] Slough Estates Ltd v Slough Borough Council (No 2) [1971] AC 958.
In the passage of Bunderra cited by Aquila, Payne JA said:[152]
The principles relating to the construction of development consents were not controversial on the appeal. Those principles were explained by the primary judge at [62]-[63]. In particular, it was common ground that the following principles applied:
…
(4)as a general rule, a development consent, being a public document operating in rem for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Evidence as to the nature or physical features of the land may also be admissible for that purpose, at least those features observable by a third party at the time of the consent: Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 at [44]; Shell Co of Australia at 637.
[152] Bunderra [158(4)].
Payne JA made a statement to the same effect in the second case cited by Aquila, Owners - Strata Plan No 4983.[153]
[153] Owners - Strata Plan No 4983 [64].
As to the third case cited by Aquila, Slough, Aquila relied[154] upon the following passage from the judgment of Lord Reid:[155]
[E]xtrinsic evidence may be required to identify a thing or place referred to, but that is a very different thing from using evidence of facts which were known to the maker of the document but which are not common knowledge to alter or qualify the apparent meaning of words or phrases used in such a document. Members of the public, entitled to rely on a public document, surely ought not to be subject to the risk of its apparent meaning being altered by the introduction of such evidence.
[154] See ts 456 ‑ 457.
[155] Slough (962).
As appears from the earlier extract of the passage of Bunderra cited by Aquila, Payne JA cited two cases.
In Allandale, the first case cited by Payne JA, Meagher JA said:[156]
Evidence may also be led to identify a thing or place referred to in the consent … That evidence is not led to vary the consent but to identify the thing referred to in it. Evidence as to the nature or physical features of the land or site may also be admissible for that purpose.
[156] Allandale [44] (citations omitted).
In support of this, Meagher JA cited Parramatta City Council v Shell Co of Australia Ltd[157] (Shell Co), the second case cited by Payne JA. In Shell Co, the court said:[158]
As has been held, it is not permissible, in order to determine what development has been approved, to construe the document constituting the approval in the same way as if it evidenced some inter partes transaction, for development approvals operate, as it were, in rem and may be availed of by subsequent owners and other occupiers of the land. The nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks.
[157] Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632, 637 (Shell Co).
[158] Shell Co (637).

BHP's failure to survey its mining leases meant that the precise boundaries of those leases were not known. It had no other effect and is of no other relevance to the issues in these proceedings.

BHP's understanding

Aquila submits that the evidence does not establish BHP's assertion that it has always believed that the Rocklea Temporary Reserve was defined by reference to the Old Homestead. It submits that the evidence establishes at best that BHP believed this from 1996 or 1998.[560]
[560] Aquila's Reply Submissions [130] ‑ [134].
I accept that BHP may not have known the precise boundary of the area. However, as I will explain, I consider that BHP has always believed that the Rocklea Temporary Reserve was defined by reference to the Old Homestead.
In support of its submission, Aquila refers to a plan and a drillhole.
The plan to which Aquila refers was given by BHP to the Department in 1970.[561] The plan depicts the Rocklea Temporary Reserve and two homesteads. Aquila submits that the Rocklea Temporary Reserve 'appears to have been plotted from the mapped location of the New Homestead'.[562] BHP points out that there is no evidence of this.[563] Aquila did not reply to this nor take me to the plan to seek to justify its submission. Having myself looked at the plan, it is not obvious to me that the Rocklea Temporary Reserve was plotted from the location of the New Homestead.
[561] Exhibit 10.365 page 4294 (and see also Exhibit 1.1 pages 178 ‑ 179).
[562] Aquila's Reply Submissions [131(a)].
[563] ts 324.
The drillhole to which Aquila refers was a drillhole that (it seems) was drilled outside of the Rocklea Temporary Reserve.[564] It was drilled by one of BHP's predecessors in title, Goldsworthy Mining in 1971.
[564] Aquila's Reply Submissions [131(b)].

Goldsworthy Mining drilled six drillholes in the Rocklea Temporary Reserve between 1971 and 1972.[565] Due to the passage of time, the location of those drillholes can only be estimated. The estimated locations put one of those six within the Disputed Area and one slightly to the east.[566] The latter would have been even further outside of the Rocklea Temporary Reserve if the reserve was defined by reference to the New Homestead. In my view, this shows only that the precise boundary was not known.
[565] Moharana Witness Statement [15].
[566] Moharana Witness Statement [15] ‑ [17] and the map referred to, Exhibit 10.505 page 4619.
I accept that there is no evidence of what BHP's predecessors in title believed back in 1967 when it applied for the Rocklea Temporary Reserve. Given the passage of time and the context, this is unsurprising. There is evidence that shows that, at least by 1998, BHP believed it was defined by reference to the Old Homestead.[567] There is no reason why BHP's belief would have changed over time. Accordingly, despite the plan and the drillhole to which Aquila refers, and the lack of direct evidence, I would infer that BHP and its predecessors in title have always believed that the Rocklea Temporary Reserve was defined by reference to the Old Homestead.

Status quo - third parties

[567] See Exhibit 4.122 pages 1052 ‑ 1063, Exhibit 10.424 page 4509, and Trinder Witness Statement [18(b)] ‑ [28].

Initially, Aquila sought five declarations. Three of those involved the boundaries of areas which were adjacent to areas covered by third party exploration licences (Third Party Boundaries).
In its defence, BHP pleaded the impact that the declarations would have on third parties.[568] It pleaded, as a reason for declining to grant the declaratory relief sought by Aquila, 'that it would be inequitable and unreasonable to disturb the status quo that has existed between 1967 and 2018 and thereby alter the rights of the Defendants and third parties'.[569] In BHP's written submissions, it submitted that the Court in its discretion should decline to make the declarations sought by Aquila because, as it was not known what the impact would be on third parties, the Court could not balance that against Aquila's commercial interest.[570]
[568] Defence [47] ‑ [54].
[569] Defence [58].
[570] BHP's Submissions [137] ‑ [138].
In its written submissions in reply, Aquila indicated that it no longer sought declarations in relation to the Third Party Boundaries, and its pleading was duly amended. In the hearing, BHP submitted that third parties would still be affected. It pointed out that the Minister is a party to these proceedings and will be bound by the outcome. Aquila accepts this. It argues, however, that this would not directly affect third parties and would only have limited indirect effect.[571]

Not a submission about joinder

[571] See ts 485 ‑ 490.

Before considering this further, it is important to be clear on what BHP's submission is. It is a submission about the discretionary refusal of relief, and not about joinder. BHP submits that declaratory relief should be refused because it would be inequitable and unreasonable to disturb the status quo that has existed between 1967 and 2018 and thereby alter the rights of third parties. It does not submit that relief should be refused because necessary parties were not joined. Nor did it submit that the proceedings should be adjourned until they are joined. That said, in its written opening submissions, BHP asserted that the impact on third parties[572]
raises a further issue as to whether those companies would need to be joined as necessary and proper parties to [Aquila's] claim, were the Court minded to make declaration A(a),[573] to ensure it was not liable to be set aside. That is not a matter about which [BHP] makes a submission, save to note that Aquila has apparently made a forensic choice not to join those parties despite the above facts having been pleaded in [BHP's] defence. (citation omitted)
[572] BHP's Submissions [139].
[573] Declaration A(a) sought a declaration that the reference to 'Rocklea Homestead' in the Reservation Document was a reference to the New Homestead. It was deleted from Aquila's amended statement of claim. However, in oral submissions, BHP contended, in effect, that this made no difference to the impact that the declarations still sought by Aquila would have on third parties.
If this was a real issue, it would have been better raised well before the matter was set down for trial. It was not. Further, it would have been helpful to have included it in the list of issues agreed by the parties prior to trial. It was not. Perhaps for these reasons, BHP expressly said it was not a matter about which it made a submission.
Nevertheless, if I had otherwise found in favour of Aquila, it would still have been necessary to consider whether it was appropriate to make the declarations in light of the third parties' tenements. If the declarations would directly affect any of the third parties, they should not be made unless the third parties are joined as parties to the proceedings.[574]
[574] Harding v Her Worship Ms B Lane SM [2001] WASCA 37 [15] ‑ [16]. See also John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 [131] ‑ [138] and Jones v Miami Waterfront Developments Pty Ltd [2012] WASC 483 [12] ‑ [13], [22], [30] ‑ [31], [41] ‑ [42] (Edelman J).
Aquila argues that the third parties would not be directly affected.
Aquila accepts that, if Aquila succeeds in these proceedings, the Department might redraw all of the boundaries that are defined by reference to the area of the Rocklea Temporary Reserve. Aquila further accepts that that is what the Department did in 2018.[575] I consider that it is almost inevitable that the Department would redraw all of the boundaries that are defined by reference to the area of the Rocklea Temporary Reserve.
[575] ts 486.
Aquila also accepts that a larger area will be excluded from the areas the subject of the third party licences if it succeeds, compared to what would be excluded if it fails.[576] During the hearing, I raised whether this would necessarily be a detriment.[577] A licensee's obligations to pay rent and expend money are calculated by reference to area.[578] Applicants must apply for areas of land in graticular blocks.[579] It may be that some of the land in a graticular block is not desirable (for example, the terrain may make any mining in that location unprofitable). Nevertheless, it will count towards the area from which the rent and expenditure requirements are calculated. However, in the context of this lucrative industry, it is unlikely that the relatively modest rent and expenditure requirements would outweigh the benefits of having rights over a greater area.
[576] This was ultimately accepted - see ts 487 ‑ 489. Note that BHP already has priority over third parties on the eastern side, so no third party will lose any land if the declarations sought by BHP are made.
[577] ts 371 ‑ 372.
[578] Mining Regulations reg 31(1), reg 109 and Schedule 2 item 8.
[579] A 'graticular block' is an area measuring one minute of latitude by one minute of longitude. See s 56C of the Mining Act.

Aquila points out that, of the third parties, only FMG Pilbara Pty Ltd (FMG) applied for its tenement before the boundaries of BHP's tenements were changed in Tengraph following the Survey (the 2018 Tengraph change).[580] That is, if Aquila succeeds, each of the other third parties would get exactly what they expected to get when they made their applications. Only FMG would get less than it expected. BHP accepts this.[581]
[580] Aquila's Reply Submissions [139].
[581] ts 371.
Aquila also referred[582] to O 18 r 6(1) of the Rules of the Supreme Court, which states:
No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.
[582] ts 490.
This does not mean, however, that orders should be made in the absence of a necessary party. If the declarations would directly affect any of the third parties, they should not be made unless the third parties are joined as parties to the proceedings.[583]
[583] Harding [15] ‑ [16]. See also John Alexander's Clubs Pty Ltd [131] ‑ [138] and Jones [12] ‑ [13], [22], [30] ‑ [31], [41] ‑ [42] (Edelman J).
Had I found in Aquila's favour on the first two issues, I would have been troubled by this issue. I am not sure that, if I were to make the declarations Aquila seeks, the impact on the third parties could properly be described as indirect. However, as I have not found in Aquila's favour on the first two issues, and as this issue is independent of the discretionary issue, it is unnecessary to reach a concluded view.

Impact on third parties as a discretionary factor

The fact that only FMG applied for its tenement before the boundaries of BHP's tenements were changed in the 2018 Tengraph change is relevant to the discretion. That is, if Aquila succeeds, only FMG would get less than it expected.
BHP submits that FMG would not have been given notice of the Survey. The survey notification requirements require notice be given to an adjoining tenement holder,[584] and FMG was not an adjoining tenement holder of Aquila.[585] I accept this.
[584] Regulations 118A and 120A(3) of the Mining Regulations.
[585] ts 371.
Aquila points out that the reduction in the area of FMG's exploration licence following the 2018 Tengraph change was relatively small. The reduction was approximately 88 ha, representing only 0.52% of the land the subject of FMG's exploration licence.[586]
[586] Aquila's Reply Submissions [139] footnote 138.
BHP submits that I should not give declaratory relief 'in circumstances where the Court is not aware of the impact that will have on third parties and thus is not in a position to balance that against Aquila's commercial interest'.[587]
[587] BHP's Submissions [137]. Although this submission referred to Declaration A(a), which was deleted from Aquila's amended statement of claim, BHP contended, in effect, that this made no difference to the impact that the declarations still sought by Aquila would have on third parties.
Aquila submits, in effect, that if BHP wished to raise the effect on third parties as a reason for refusing to make the declarations sought by Aquila, BHP ought to have joined the third parties.[588] In making this submission, I would not take Aquila to be contradicting the settled view that it is for the party seeking relief to choose who are the necessary parties to enable the Court to make the orders sought.[589] Rather, I take Aquila to be submitting that, if BHP wanted to assert that the effect on third parties was a reason to exercise my discretion to refuse relief, BHP ought to have joined the third parties.
[588] ts 159, 237.
[589] News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410, 526.
I do not accept this. However, there is no evidence that would allow me to conclude that making the declarations would have a meaningful effect on any of the third parties. In particular, there is no evidence as to the value (or potential value) of the areas that would be included in, or excluded from, a third party tenement depending on who succeeds in this litigation. It was open to BHP to adduce evidence of this. It did not. Accordingly, I could only speculate as to whether any of the third parties would be meaningfully affected by the declarations. A speculative impact on third parties would not justify refusing declaratory relief. It is of no weight.

Pleading issue

For completeness, I note that Aquila submitted that BHP failed to plead some of its allegations in relation to this third key issue. I agree that some of BHP's written submissions could have been clearer. Nevertheless, once BHP had clarified its case in opening,[590] I was satisfied that its pleading supported its case.
[590] See ts 334 ‑ 336.
I also note that Aquila appeared to accept that the pleading issue was of limited significance.[591]

Conclusion on Key Issue 3

[591] See ts 474 ‑ 477.

Had BHP established that it suffered meaningful[592] prejudice due to Aquila's delay, I would have refused relief. There was no good reason for the delay - it was just in the 'too hard basket'. Further, Aquila's position was not affected by its delay.
[592] by which I mean not insignificant.
However, BHP did not establish this.
This is not to say that relief could only be refused if BHP established it had suffered meaningful prejudice due to the delay. However, given the absence of such prejudice, the other matters I have discussed would not have caused me to conclude that it was in the interests of justice to refuse relief. Had I found in Aquila's favour in relation to the first two key issues (and subject to the joinder issue), I would have granted declaratory relief.

Outcome

I have found that the Rocklea Temporary Reserve was defined by reference to the Old Homestead. If I am wrong about that, I consider that Aquila's claim would be statute‑barred. If I am wrong about both, I would have granted relief.
I will hear from the parties as to final orders and costs.

Glossary

Term	Definition
2018 Tengraph change	Changes in Tengraph to the boundaries of BHP's tenements following the Survey, made on the basis that the Rocklea Temporary Reserve was defined by reference to the New Homestead
API	API Management Pty Ltd, the manager of the joint venture to which the plaintiffs are the parties
Application Letter	Letter by BHP to the Under Secretary of Mines on or around 26 May 1967 applying for seven temporary reserves, Exhibit 1.1 page 215
Appraisal Plan	Plan prepared by a geospatial officer of the Department after a temporary reserve application was received by the Department
Appraisal Schedule	Document created by a Departmental officer identifying any excluded land, including Crown reserves and freehold title, and the extent of encroachment onto existing mining tenements or approved temporary reserves
Attachment	The attachment to the Application Letter describing the areas over which the temporary reserves were sought, Exhibit 1.1 page 216
Aquila	The plaintiffs, collectively and in the singular
Aquila's Exploration Licence	Exploration licence 47/1413-I granted to Aquila by the Minister on or around 23 March 2005
Aquila's Mining Lease	Mining lease 47/1494‑I
Areas (1) - (7)	The seven areas sought to be made temporary reserves in the Application Letter, designated 4281^H, 4282^H, 4283^H, 4284^H, 4285^H, 4286^H, and 4287^H in the Attachment
Area (6)	The area that became the Rocklea Temporary Reserve and that was designated 4286^Hin the Attachment
Ashburton Book	'Along the Ashburton' book by Rhonda McDonald, an extract of which is Exhibit 4.126
Attachment	Attachment to the Application Letter describing the areas over which the temporary reserves were sought
base plan	A public plan at its adoption date
BHP	First to third defendants and their predecessors in title, collectively and in the singular
BHP's Affected Mining Leases	The two BHP mining leases (mining leases 47/685‑I and 47/689‑I) which would be affected if the Rocklea Temporary Reserve was defined by reference to the New Homestead
BHP's Exploration Licence	Exploration licence 47/16‑I granted to BHP by the Minister on or around 4 October 1982
BHP's Neighbouring Tenure	The areas covered by mining leases 47/685‑I, 47/686‑I, 47/688‑I and 47/689‑I
Department	Department assisting the Minister with the administration of mining legislation
Disputed Area	The part of land over which Aquila would have rights only if the Rocklea Temporary Reserve is defined by reference to the New Homestead
FMG	FMG Pilbara Pty Ltd
GIS	Geographic information system
Identification Evidence	Extrinsic evidence to identify a thing or place referred to in an instrument
Incorporated Documents	Documents incorporated into an instrument (expressly or by necessary implication)
Key Issue 1	Which of two homesteads on Rocklea Station was the reference point from which the boundary of the Rocklea Temporary Reserve was determined?
Key Issue 2	Are any of the parties' claims for declarations statute‑barred?
Key Issue 3	If the plaintiffs are otherwise entitled to declaratory relief, should relief be refused on discretionary grounds?
Mines File 384/67	The Department's file in relation to the Rocklea Temporary Reserve, a redacted copy of which is Exhibit 1.1
Minister's Recommendation	Document titled 'Minute Paper for the Executive Council' containing the Minister's recommendation, on or around 28 September 1967, to Cabinet (Executive Council) that it advise the Governor in Council to confirm the temporary reservation of the Rocklea Temporary Reserve and approve the Minister's authorisation of BHP to temporarily occupy it, Exhibit 1.1 page 199
Mudlark Well	Used as a reference point in the Attachment for Areas (3), (4), (5) and (7)
New Homestead	New building erected in 1966 at Rocklea Station located approximately 390 metres northwest of the Old Homestead
Objection	Objection to the Survey Report lodged by BHP in the Warden's Court on 21 November 2018
Old Homestead	An older building at Rocklea Station which was, on Aquila's pleading (and not denied by BHP), erected at an unknown date prior to June 1943
Onslow 13 Plan	Department's public plan from which the Page 11 Plan was extracted
Page 10 Plan	Appraisal Plan for the applications for temporary reserves over Areas (1), (2), (3), (4), (5), and (7), at folio 10 of Mines File 384/67, Exhibit 1.1 page 214
Page 11 Plan	Appraisal Plan for the Rocklea Temporary Reserve Application, at folio 11 of Mines File 384/67, Exhibit 1.1 page 213
Pastoralists' Letter	Letter written on 21 August 1968 by Frank Troy, on behalf of the pastoralists of Rocklea Station, to the Under Secretary for Lands, Exhibit 3.56 pages 697 ‑ 699
Plaint	Plaint filed by BHP in the Warden's Court on 31 July 2019
planning cases	Cases discussing the proper approach to the construction of planning and development consents
Repealed Act	Mining Act 1904 (WA)
Reservation Document	Document signed by the Minister on 4 August 1967, accepting the recommendation of the Under Secretary to approve some of the applications, including the Rocklea Temporary Reserve Application, Exhibit 2.3 page 491
Rio Tinto Email	Email sent by Mr Sale on behalf of Aquila to Ms Bear at Rio Tinto on 18 December 2013, Exhibit 8.213 page 2977
Rocklea Station	Rocklea pastoral station
Rocklea Temporary Reserve	A temporary reserve on Rocklea Station in the Pilbara. It was labelled Area (6) and designated 4286^H in the Attachment to the Application Letter. The first to third defendants have the right to mine in this area.
Rocklea Temporary Reserve Application	Application for a temporary reserve over the sixth area (labelled 'Area (6)') in the Attachment
Stay Decision	*BHP Minerals Pty Ltd v Aquila Steel Pty Ltd* [2023] WASCA 21
Stevens' November 2018 email	Email sent by Mr Stevens of the Department to Ms Keith at BHP on 12 November 2018
Superintendent's Letter	Letter written by the Superintendent, Surveys and Mapping Branch to Mr Williams at BHP on 19 November 1974, Exhibit 1.1 page 105
Survey	Survey of Aquila's Mining Lease requested by the Department on 21 August 2018 and conducted by Phillip Richards
Survey Report	Mr Richards' report to the Department on the Survey on 10 October 2018, Exhibit 9.281 page 3562
Tengraph	Electronic mapping system
Third Party Boundaries	Boundaries of third party tenements which are determined, in part, by which homestead the Rocklea Temporary Reserve is defined
Under Secretary	Under Secretary of Mines

Map

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ADR
Associate to the Honourable Justice Archer
17 JULY 2024