ARM Mining Pty Ltd v SKR New Investment Pty Ltd - [2025] WASCA 38

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ARM MINING PTY LTD -v- SKR NEW INVESTMENT PTY LTD [2025] WASCA 38
CORAM:   BUSS P
MITCHELL JA
VAUGHAN JA

HEARD: 5 FEBRUARY 2025
FURTHER SUBMISSIONS FILED 13 & 19 FEBRUARY 2025

DELIVERED          :   19 MARCH 2025
FILE NO/S:   CACV 29 of 2024
BETWEEN:   ARM MINING PTY LTD
Appellant
AND
SKR NEW INVESTMENT PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   GLANCY J
Citation: ARM MINING PTY LTD -v- SKR NEW INVESTMENT PTY LTD [2024] WASC 103
File Number            :   GDA 2 of 2023

Catchwords:

Appeal - Whether appeal to Supreme Court from orders made by a warden was competent - Where challenged orders were made in course of determining justiciable controversy as to whether respondent had a proprietary interest in a mining tenement held by appellant - Where challenged orders purported to give consent to respondent lodging a successive caveat to protect its proprietary interest in mining tenement which had been determined to exist - Whether orders were made by warden acting in an administrative capacity or by warden's court exercising judicial power - Whether power to consent to lodging of a successive caveat against a mining tenement is an administrative power conferred on wardens or a judicial power conferred on wardens' courts - Whether orders were a 'final judgment, determination or decision of a warden's court' from which a right of appeal was conferred - Whether primary appeal judge erred in finding Supreme Court had no jurisdiction to determine grounds of appeal challenging the finding that respondent had a proprietary interest in the mining tenement and in dismissing appeal as incompetent without determining those grounds of appeal

Legislation:

Mining Act 1978 (WA), s 103C, s 103F, s 122A, s 122D, s 122E, s 132, s 134, s 137(5), s 147(1), s 149

Result:

Appeal allowed
Orders made in appeal to General Division set aside
Appeal to General Division remitted to General Division for determination according to law

Category: A

Representation:

Counsel:

Appellant	:	J K Taylor SC & C M Beetham
Respondent	:	A J Papamatheos SC

Solicitors:

Appellant	:	Clayton Utz
Respondent	:	BMS Law

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

Ah Yick v Lehmert (1905) 2 CLR 593
Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225
Blair v Curran (1939) 62 CLR 464
Calvin v Carr (1979) 53 ALJR 471
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Lee v Lawfirst Pty Ltd [2023] WASCA 59
Mineralogy Pty Ltd v CITIC Ltd [2024] WASCA 168
Nova Resources NL v French (1995) 12 WAR 50
Owen v Wilson [2023] WASC 178
Re Calder SM; Ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525
Re Malley SM; Ex parte Gardner [2001] WASCA 29
Re Minister for Mines; Ex parte Trythall (1991) 7 WAR 375
Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd [2019] NSWCA 11; (2019) 99 NSWLR 317
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79; (2012) 42 WAR 287
SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75; (2008) 168 FCR 410
The State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118

JUDGMENT OF THE COURT:

Summary

In 2018, a dispute arose between the appellant (ARM) and the respondent (SKR) about whether SKR held a proprietary interest in mining lease ML15/1362 (Tenement). ARM is the registered holder of the Tenement under the Mining Act 1978 (WA) (Act).
In broad terms, SKR contended that it held a proprietary interest in the Tenement by way of an equitable lien, equitable charge or constructive trust. The proprietary interest was alleged to arise under or by virtue of:
1.an oral agreement made in about May 2012 between ARM, SKR and Mineral Wealth Pty Ltd (a subsidiary of SKR) for the sale of the Tenement to ARM (Sale Agreement); and
2.a written 'Royalty Agreement' between ARM and SKR dated 2 December 2012.
On 19 June 2018, SKR lodged an absolute caveat under the Act, in which SKR claimed an interest in the Tenement by virtue of the Royalty Agreement (Caveat).
In October 2018, ARM commenced proceedings in the warden's court at Kalgoorlie, claiming a direction that the Caveat be removed from the Tenement and a permanent injunction preventing SKR from lodging any further caveat against the Tenement pursuant to the Royalty Agreement. SKR made a counterclaim in the warden's court proceedings in which it sought declaratory and injunctive relief as well as the warden's consent to lodge a further caveat. In the warden's court, SKR contended, and ARM denied, that the Sale Agreement and Royalty Agreement were valid agreements which gave SKR a proprietary interest in the Tenement that could support the Caveat.
On 9 January 2023, the warden published the primary decision, comprising orders and written reasons for finding that SKR held a proprietary interest in the Tenement.[1] Order 1 of the orders made on 9 January 2023 dismissed ARM's claim. Order 3 of the orders made on 9 January 2023 ordered that:
Pursuant to section 122A(6) of the [Act], SKR has the Warden's consent to lodge a successive absolute caveat as against [the Tenement] for:
'An equitable lien, charge or constructive trust, held by SKR to secure payment by ARM of an actual or potential indebtedness of $8,000,000 of ARM to SKR, under the [Sale Agreement], and more particularly set out in the [Royalty Agreement].' (original emphasis)
[1] ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2023] WAWC 1 (primary decision).
ARM appealed from the orders made on 9 January 2023 to the General Division of this court. The grounds of appeal to the General Division were essentially that the warden erred in finding that there was a valid Sale Agreement, and erred in finding that the Sale Agreement and Royalty Agreement gave SKR a proprietary interest in the Tenement.
In resisting the appeal to the General Division, SKR contended that the appeal was incompetent on the basis that order 3 of the orders made on 9 January 2023 was an administrative decision by the warden under s 122A(6) of the Act rather than an a 'final judgment, determination or decision of a warden's court' from which an appeal lay under s 147(1) of the Act.
The primary appeal judge upheld SKR's contention as to the competence of the appeal and dismissed ARM's appeal to the General Division without determining ARM's substantive grounds of appeal. In determining the jurisdictional issue, the primary appeal judge focused on the question of whether s 122A(6) of the Act, on its proper construction, conferred an administrative power on a warden or a judicial power on a warden's court.
In our view, the primary appeal judge correctly held that, on its proper construction, s 122A(6) of the Act confers an administrative power on a warden, as opposed to a warden's court, to consent to the lodgement of a successive caveat. However, in our view the primary appeal judge erred in determining the jurisdictional question as to the competence of ARM's appeal to the General Division by reference to the character of the power conferred by s 122A(6) of the Act.
The justiciable controversy as to whether SKR held a proprietary interest in the Tenement was raised by ARM's claim and SKR's counterclaim in the warden's court. The orders made on 9 January 2023 were in fact made by the warden's court in the exercise of that court's jurisdiction, which the parties had engaged, to resolve that justiciable controversy. The warden's court resolved that controversy by determining that SKR held a proprietary interest in the Tenement. The orders made on 9 January 2023, including order 3, gave effect to that determination and, as a matter of law, give rise to a res judicata or issue estoppel until they are set aside. As such, the orders made on 9 January 2023, including order 3, are properly characterised as a 'final judgment, determination or decision of a warden's court' within the meaning of s 147(1) of the Act. Irrespective of whether the warden's court was authorised to make order 3, s 147(1) of the Act gave ARM the right to appeal from the orders made by the warden's court in finally determining the justiciable controversy about whether SKR held a proprietary interest in the Tenement and to contend that different orders ought to have been made by the warden's court.
Therefore, the primary appeal judge erred in law in finding that the Supreme Court did not have jurisdiction to determine ARM's appeal to the General Division and in dismissing the appeal for want of jurisdiction without determining ARM's grounds of appeal. The appeal to this court should be allowed, the primary appeal judge's order dismissing ARM's appeal to the General Division as incompetent should be set aside, and that appeal should be remitted to the General Division to be determined according to law.

Statutory context

Wardens and wardens' courts

Section 8(1) of the Act contains the following definitions relating to wardens and wardens' courts:
the warden … means the warden … of the mineral field or district thereof in which the subject matter in relation to which the term is used arose or is;
…
warden means a warden of mines appointed in accordance with this Act;
warden's court means the warden's court constituted under this Act or deemed so to be for the mineral field or district thereof in which the subject matter in relation to which the term is used arose or is.
Under s 13(1) of the Act, the Governor may appoint a magistrate to be a warden of mines, who 'is thereby authorised and empowered to preside in a warden's court'.
Under s 127(1) of the Act, the Governor may, by Order in Council, 'establish wardens' courts at such places in the State as he thinks necessary' and 'assign to any warden's court such mineral field or district thereof, as he thinks fit'. By s 128 of the Act, each warden's court shall be a court of record.
Section 132(1) of the Act defines the jurisdiction of a warden's court in the following presently relevant terms:
A warden's court has jurisdiction to hear and determine all such actions, suits and other proceedings cognizable by any court of civil jurisdiction as arise in respect of -
…
(b)the title to, and ownership or possession of, mining tenements or mining products;
…
(f)transfers and other dispositions of, and charges upon, mining tenements;
(g)trusts relating to mining tenements or mining;
…
and generally all rights claimed in, under or in relation to any mining tenement or purported mining tenement, or relating to any matter in respect of which jurisdiction is under any provision of this Act conferred upon the warden's court.
Section 134 of the Act provides for the powers of a warden's court. Section 134(1) relevantly provides:
A warden's court has power to make orders on all matters within its jurisdiction, for -
(a)the enforcement of contracts;
…
(f)the declaration or enforcement of any trust relating to mining tenements …
and generally for the determination and settlement of all actions, claims, questions and disputes properly brought before the warden's court[.]
Further, under s 134(5) of the Act:
Subject to this Act and without affecting the jurisdiction of a warden's court, a warden's court has and may exercise in relation to all matters relating to any civil proceeding under this Act the like powers and authorities as are conferred upon the Supreme Court.
Section 137(5) of the Act provides:
Each order and decision of a warden's court, and in any contested proceeding the reasons for the order made or decision given, shall be reduced to writing, and signed by the warden presiding in the court that made the order or gave the decision.
Section 140 of the Act makes provision for the enforcement of a judgment (defined in s 140(1) to include an 'order, direction or decision') of a warden's court. In essence, this involves lodging a copy of the judgment in a court of competent jurisdiction. The judgment can then be enforced as an order of that court.
Subject to presently immaterial exceptions, s 147(1) of the Act provides that:
[A]ny party aggrieved by any final judgment, determination or decision of a warden's court may appeal therefrom to the Supreme Court.
Section 149 of the Act provides for the Supreme Court's powers on appeal, including by providing that the court:
(b)may confirm the order, determination or decision in respect of which the appeal is made and may dismiss the appeal; and
(c)may reverse, modify or vary such order, determination, or decision and may make such order in lieu thereof as it may think just; and
…
(e)may remit any case to the warden's court to be reheard[.]
Section 162 of the Act provides for the making of regulations including regulations under s 162(2) which do the following:
(a)prescribe and regulate the powers, functions and duties of wardens …
(r)regulate the practice and procedure in warden's courts …
(ra)without limiting paragraph (a), prescribe and regulate the powers, functions and duties of the warden in proceedings in respect of an application or objection under Part IV (Part IV proceedings), including powers to order costs and require security for costs;
(rb)prescribe and regulate the practice and procedure to be followed in Part IV proceedings[.]
Part IV of the Act contains provisions for the grant, surrender and forfeiture of mining tenements.
Under reg 121 of the Mining Regulations 1981 (WA) (Regulations), subject to a presently immaterial exception, all civil proceedings in the warden's court shall be commenced by plaint in the form of Form 33.
Under reg 129(1) of the Regulations:
When the decision of any plaint has been delivered by the warden's court, a judgment in the form of Form 38 may be signed by the warden or mining registrar and lodged in the court.
Part VIII of the Regulations makes provision for proceedings before a warden under pt IV of the Act.

Administrative functions of a warden

The Act confers many functions on a 'warden' or 'the warden' which are administrative in character and do not involve the exercise of jurisdiction by a warden's court. Examples include the grant of a prospecting licence under s 40(1) of the Act,[2] making a recommendation to the Minister as to the grant of a mining lease under s 71 of the Act[3] and functions relating to ordering the forfeiture of certain mining tenements under s 96(1) of the Act.[4]
[2] See Re Minister for Mines; Ex parte Trythall (1991) 7 WAR 375.
[3] See Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149.
[4] See Nova Resources NL v French (1995) 12 WAR 50; Owen v Wilson [2023] WASC 178 [218].
The distinction between administrative functions of a warden and the jurisdiction of a warden's court was described in an article by D R Williams QC: Judicial Review of Wardens' Decisions [1984] AMPLA Yearbook 78. In a passage later adopted by Ipp J (Pidgeon J agreeing) in Re Calder SM; Ex parte Gardner,[5] Mr Williams QC observed:
It is not intended [by s 132(1)] to confer on the Warden's Court jurisdiction which is, under the Act, properly exercisable by the warden acting as warden of mines. The intention is to give the Warden's Court jurisdiction to hear proceedings relating to claims of right arising from matters that the warden deals with under the Act. The warden sitting as the Warden's Court could not, therefore, hear an application for grant or forfeiture of a mining tenement. That is a matter for the warden sitting as the warden of mines. A Warden's Court could, however, entertain proceedings relating to a dispute as to the rights arising out of the grant or forfeiture of a mining tenement.
[5] Re Calder SM; Ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525 [32] - [33]. The approach taken in this case was affirmed by an enlarged bench of the Full Court in a related appeal in Re Malley SM; Ex parte Gardner [2001] WASCA 29.
In Re Calder SM, Ipp J made the following observations as to the use in the Act, as it stood at that time, of the terms 'warden' and 'warden's court':[6]
The Act provides for a number of separate and different ways in which the various statutory functions of the warden may be performed. These are by the warden sitting as the Warden's Court, by the warden in open court, and by the warden, as it were, without any qualification. In some instances, the lines of demarcation between these functions are not clearly drawn and at times distinctions apparent in some parts of the Act are blurred in others.
Over the years this has given rise to uncertainty, as it is often difficult to determine whether in a given case the warden is acting judicially or administratively, or as an inferior court or as an administrative organ. There have been a number of calls for the confusion to be remedied by legislative enactment. (citation omitted)
[6] Re Calder SM [5] - [6].
As the primary appeal judge noted, amendments designed to clarify the distinction between the powers of a warden and the jurisdiction of a warden's court were enacted by the Mining Amendment Act 2004 (WA) (2004 Amendment Act), which commenced operation on 31 March 2007. At least in general, functions which are conferred administratively on a warden are in terms conferred on the warden, and powers of a warden's court are expressly conferred on the warden's court.

Caveats

Under s 103F of the Act, the Director General of Mines is relevantly required to compile and maintain a register which is to contain prescribed particulars relating to mining tenements. Section 103C provides for the registration of certain instruments which relevantly includes a 'dealing' (defined in s 8 of the Act to mean 'a transfer or mortgage of a legal interest in a mining tenement') and a surrender of a mining tenement under s 95 of the Act. Under s 103C(3), only an instrument to which s 103C applies may be registered. Under s 103C(8), a dealing does not pass any legal estate or interest in a mining tenement or in any way charge or encumber a mining tenement until it is registered in accordance with s 103C of the Act.
Section 122A of the Act provides for the lodgement of caveats against mining tenements. Under s 122A(1):
A person claiming an interest in a mining tenement may lodge -
(a)a caveat against the mining tenement forbidding the registration of a dealing or surrender affecting the mining tenement or interest; or
(b)a caveat against the mining tenement forbidding the registration of -
(i)a dealing affecting the mining tenement or interest unless the dealing expressly states that it is to be subject to the interest claimed by the caveator; or
(ii)a surrender affecting the mining tenement or interest.
Section 122A(2) of the Act provides for a party to an agreement for the sale of, or any other matter connected with, an interest in a mining tenement to lodge a caveat against the mining tenement, if the agreement so provides.
A caveat referred to in s 122A(1)(a) is defined in s 121 of the Act to be an 'absolute caveat', while a caveat referred to in s 122A(1)(b) is defined to be a 'subject to claim caveat'. A caveat referred to in s 122A(2) is defined by s 121 of the Act to be a 'consent caveat'.
Where a caveat is lodged under s 122A of the Act, s 122A(4)(a) requires a memorial or copy of the caveat to be entered in the register. Section 122A(5) provides that, subject to a presently immaterial exception, a caveat lodged under s 122A has effect from the time of lodgement.
Section 122A(6) of the Act provides:
Successive caveats shall not be lodged by, or on behalf of, the same person in respect of the same subject matter except with the consent of a warden. (emphasis added)
Section 122D of the Act provides for the effect of a caveat in the following terms:
(1)A dealing or surrender affecting the subject matter of a caveat shall not be registered under section 103C while the caveat remains in force, except with the consent of a warden.
(2)Subsection (1) does not apply to a dealing if -
(a)the caveat concerned is a subject to claim caveat; and
(b)the dealing is expressed to be subject to the interest claimed by the caveator.

Section 122E(1) of the Act relevantly provides for when a caveat ceases to have effect in the following terms:
An absolute caveat or a subject to claim caveat ceases to have effect upon -
(a)the direction of a warden for the removal of the caveat; or
(b)the withdrawal of the caveat by the caveator or an agent of the caveator; or
(c)the expiry of a period of 14 days after notification that -
(i)in the case of an absolute caveat, application has been made for the registration of a dealing or surrender affecting the subject matter of the caveat; or
(ii)in the case of a subject to claim caveat, application has been made for the registration of a dealing or surrender affecting the subject matter of the caveat that is not expressed to be subject to the interest claimed by the caveator,
has been sent by or on behalf of the Minister by certified mail to the caveator at the address for service given in the caveat, unless within that period a warden otherwise directs.

Procedural history

The Caveat and the Royalty Agreement

On 19 June 2018, SKR lodged the Caveat, in which SKR claimed an interest in the Tenement by virtue of the Royalty Agreement.
The Royalty Agreement, dated 2 December 2012, contained the following recitals:
A. ARM is acquiring [the Tenement]. ARM agrees to enter this Royalty Agreement with SKR.
B. ARM has agreed to pay SKR a royalty on the net profit made from [the Tenement].
C. The parties have agreed to enter into this Agreement to record the terms of the Royalty and the basis on which it is to be paid to SKR.
Clause 2 of the Royalty Agreement provided that the agreement would not become binding unless the Tenement was transferred to ARM on or before the 'Effective Date' or such other date as was agreed in writing. It appears to be common ground that the Tenement had already been transferred from Mineral Wealth to ARM when the Royalty Agreement was signed and that the requirement in cl 2 was therefore satisfied.
Clause 3 of the Royalty Agreement relevantly provided as follows:
3.1 Royalty Obligation
Royalty means the royalty payable by ARM to SKR under this Agreement in the total sum of A$8,000,000.00. The royalty can only be paid out from the Net Profit[7] derived from sale of the Products[8].
[7] The term 'Net Profit' was the subject of detailed definition in cl 1.1 of the Royalty Agreement.
[8] 'Products' was defined in cl 1.1 of the Royalty Agreement to mean 'a Mineral or metallic product derived from Minerals extracted and recovered from the [Tenement] which is capable of being sold'.
…
3.3 Payment of Royalty
Subject to clause 3.1, ARM must by no later than [28 October in any year] pay the applicable royalty for the immediately preceding 12 month period ending 30 June to [a bank account nominated by SKR].
3.4 Maximum Royalty
Notwithstanding anything else in this agreement, the maximum amount of royalty under this Agreement is:
(a) limited to 30% of Net Profit in any one year; and
(b) limited to the total cumulative amount of A$8,000,000.00 after which time there is no further royalty payable.
Clause 4 of the Royalty Agreement provided:
In the event of ARM transferring or selling the Tenement to a third party ARM has the option to:
(a) to make a lump sum payment of the remaining royalty instalment to SKR; or
(b) to direct the third party to make a lump sum payment of the remaining instalment to SKR[.]
Clause 6 of the Royalty Agreement provided that ARM may terminate the agreement by making a lump sum payment equivalent to the balance of royalty owing to SKR.

ARM's claim in the warden's court proceedings

By plaint in prescribed Form 33 dated 23 October 2018 lodged in the warden's court at Kalgoorlie, ARM claimed that:
1.On 2 December 2012, ARM and SKR entered into a 'purported royalty agreement'.
2.On 19 June 2018, SKR lodged the Caveat against the Tenement.
3.The 'purported royalty agreement' was non-binding and incapable of creating an interest in the Tenement in favour of SKR capable of supporting the Caveat.
4.The Caveat was invalid and liable to be removed from the Tenement.
5.Despite demand, SKR had failed to withdraw the Caveat.
The relief claimed by ARM was:
1.a direction that the Caveat be removed from the Tenement pursuant to s 122E(1)(a) of the Act;
2.a permanent injunction preventing SKR from lodging any further caveat against the Tenement pursuant to the 'purported royalty agreement'; and
3.costs.
On 11 February 2019, SKR lodged a defence and counterclaim.

Application to strike out SKR's defence

On 21 November 2019, the warden's court, constituted by Warden O'Sullivan, dealt with an application by ARM to strike out SKR's defence. In his written reasons for decision,[9] Warden O'Sullivan found that it was arguable that the Royalty Agreement created a binding contractual obligation to make a payment pursuant to that agreement. However, Warden O'Sullivan concluded that the Royalty Agreement did not arguably confer on SKR any proprietary interest in the Tenement that was capable of supporting a caveat. Warden O'Sullivan therefore concluded that SKR's defence should be struck out with no ability to replead as it was not arguable that SKR had a caveatable interest in the Tenement. Warden O'Sullivan's reasons concluded with the following observations:[10]
Having come to the view that the Defence is clearly untenable all that remains is for formal orders to be made granting the strike out application and for the removal of the caveat.
As I explained in the introduction to these reasons, SKR's Counterclaim is to be re-pleaded and its application for an injunction was adjourned pending the outcome of this application.
Sensibly, [counsel for ARM] agreed that if ARM is successful, no formal orders would be made removing SKR's caveat until the injunction application is determined.
I will hear from the parties as to the programming of that application.
[9] ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2019] WAWC 2 (strikeout decision).
[10] Strikeout decision [130] - [133].
No formal orders either for striking out SKR's defence or for removal of the Caveat were made at this time or subsequently.

SKR's counterclaim

On 20 July 2021 SKR lodged its Further Amended Substituted Statement of Counterclaim in the warden's court (Counterclaim), which set out its claim against ARM. In essence, the claim involved the following critical elements:
1.On 14 October 2011, Mineral Wealth became the registered holder of the Tenement.[11] This was admitted by ARM.[12]
[11] Counterclaim par 5 (Green AB 360).
[12] ARM's Further Amended Defence to the Counterclaim (Defence to Counterclaim) par 12.1 (Green AB 377).
2.In about early May 2012, ARM, Mineral Wealth and SKR made an oral agreement for the sale of the Tenement by Mineral Wealth and SKR and the purchase of the Tenement by ARM for $11 million, to be paid as follows:[13]
[13] Counterclaim par 10 (Green AB 361).
(a)$3 million prior to transfer of the Tenement to ARM; and
(b)$8 million 'by way of royalties to be paid by ARM to SKR from the sale of any minerals extracted and recovered from [the Tenement], the terms for payment of which were to be more precisely agreed'.
This was denied by ARM.[14]
3.A transfer of the Tenement signed by ARM and Mineral Wealth was lodged with the Department of Mines and Petroleum and registered on 27 August 2012.[15] ARM admitted that the transfer was lodged and took effect at that time.[16]
4.On 2 December 2012, ARM and SKR entered into the Royalty Agreement which provided for the payment of an $8 million royalty by ARM to SKR and which 'further agreed, supplemented and more fully' set out the terms of the Sale Agreement.[17] ARM admitted that a document with the pleaded clauses was signed but denied that it had force because it was not a deed and there was an absence of consideration. ARM denied SKR's pleaded characterisation of the payment provided for in the Royalty Agreement.[18]
5.A dispute had arisen as to whether the Royalty Agreement was of legal force and effect.[19] ARM did not admit this allegation.[20]
6.The Tenement was subject to an equitable lien, equitable charge or constructive trust in favour of SKR for discharge of ARM's obligations under the Sale Agreement and Royalty Agreement.[21] ARM denied these allegations.[22]
7.SKR therefore had an interest in the Tenement entitling it to lodge an absolute caveat in relation to the Tenement.[23] ARM denied this allegation.[24]
[14] Defence to Counterclaim par 13D (Green AB 380 - 381).
[15] Counterclaim pars 14 - 23 (Green AB 363 - 365).
[16] Defence and Counterclaim pars 19 - 20 (Green AB 385).
[17] Counterclaim pars 25 - 26 (Green AB 365 - 366).
[18] Defence to Counterclaim pars 22 - 23 (Green AB 385 - 386).
[19] Counterclaim pars 28 - 28A (Green AB 367).
[20] Defence to Counterclaim pars 25 - 26A (Green AB 387).
[21] Counterclaim pars 29 - 33 (Green AB 367 - 368).
[22] Defence to Counterclaim pars 26 - 27 (Green AB 387 - 388).
[23] Counterclaim par 34 (Green AB 369).
[24] Defence to Counterclaim par 28 (Green AB 388).
The relief after trial sought by SKR in the Counterclaim was:[25]
[25] Counterclaim (Green AB 369 - 370).
C. A declaration that the [Royalty Agreement] is a valid and binding agreement and of full force and effect.
CA. Pursuant to [s 122A(6) of the Act], SKR has the Warden's consent to lodge a successive absolute caveat as against [the Tenement] for:
'An equitable lien, charge or constructive trust, held by SKR to secure payment by ARM of an actual or potential indebtedness of $8,000,0000 of ARM to SKR, under the [Sale Agreement], and more particularly set out in the [Royalty Agreement].'
D. A declaration that [the Tenement] is subject to an equitable lien or charge, or alternatively a constructive trust, held by SKR to secure payment by ARM of an actual or potential indebtedness of $8,000,0000 ARM to SKR, under the [Sale Agreement], and more particularly set out in the [Royalty Agreement], until such time as:
a. ARM discharges in full its obligations to SKR under the Sale Agreement and Royalty Agreement; or
b. SKR otherwise formally releases ARM from its obligations under the Sale Agreement and Royalty Agreement.
E. Alternatively to paragraph CA. above, an injunction permanently restraining ARM from transferring or dealing with [the Tenement] until such time as:
a. ARM discharges in full its obligations to SKR under the Sale Agreement and Royalty Agreement; or
b.SKR otherwise formally releases ARM from its obligations under the Sale Agreement and Royalty Agreement.
F. Costs.
G. Such other orders as this Honourable Court sees fit.

Primary decision

The matter was tried in the warden's court constituted by Warden Maughan in October and November 2021. There was no order which confined the scope of the matters raised by the pleadings in ARM's plaint and SKR's counterclaim. However, SKR points to:[26]
1.statements made in the warden's court by counsel for ARM that the claim for a permanent injunction to restrain the lodging of a further caveat was not being pursued; and
2.the absence of any prosecution of the claim for an injunction in proceedings before Warden Maughan.
[26] SKR's submissions pars 10 - 14 (White AB 36 - 37).
Warden Maughan delivered judgment on 9 January 2023. Consistently with the requirements of s 137(5) of the Act, Warden Maughan published the primary decision which comprised written reasons and orders signed by the warden.
Warden Maughan's reasons contain the following critical findings:
1.In May and/or June 2012, representatives of ARM and SKR agreed to a part payment for the Tenement by way of an $8 million royalty on terms of payment to be agreed.[27]
[27] Primary decision [70], [73].
2.On 27 August 2012, the transfer of the Tenement from Mineral Wealth to ARM occurred for the consideration stated on the transfer of $15,000 (not $3 million).[28]
[28] Primary decision [30].
3.ARM and SKR entered into the Royalty Agreement on 2 December 2012.[29]
[29] Primary decision [1], [42].
4.SKR needed to establish the following matters to establish the existence of an equitable lien:[30]
[30] Primary decision [72].
(i) that there be an actual potential indebtedness on the part of the party who is the owner of the property to the other party arising from a payment or promise of payment either of consideration in relation to the acquisition of the property or an expense incurred in relation to it;
(ii) that property be specifically identified and appropriate to the performance of the contract; and
(iii) a relationship between the actual and potential indebtedness and the identified and appropriate property be such that the owner would be acting unconscientiously or unfairly if he would dispose of the property to a stranger without the consent of the other party or without the actual or potential liability having been discharged.
5.As to the matters referred to in the passage just quoted, Warden Maughan found:[31]
[31] Primary decision [73].
(i) The royalty obligation existed when the [Sale Agreement] was made and was agreed to be consideration for the acquisition of [the Tenement]. The Royalty Agreement creates the actual and potential indebtedness;
(ii) As to the second limb the royalty only arises as a consequence of minerals being extracted and sold from [the Tenement];
(iii) There is an indisputable and integral link between the actual and potential indebtedness, being the royalty payment as being payable from a royalty from mining and sale of minerals from [the Tenement].
6.In these circumstances, SKR was 'entitled to the equitable lien so as to protect its rights'.[32]
7.Warden O'Sullivan's decision of 21 November 2019 did not give rise to an 'interlocutory estoppel' as it involved 'interlocutory and provisional findings and did not finally determine any rights between the parties'.[33]
8.'For the same reasons', an equitable charge ought to be recognised as having been imposed on the Tenement by the Royalty Agreement.[34]
9.'[F]or the same reasons', if an equitable charge or equitable lien does not arise and 'falls short', equity can impose a constructive trust.[35] Warden Maughan stated that it 'would be unconscionable to ignore the prima facie evidence of the existence of a Royalty Agreement'.[36]
[32] Primary decision [74].
[33] Primary decision [78].
[34] Primary decision [79].
[35] Primary decision [80].
[36] Primary decision [82].
Having made these findings, the primary decision concluded:[37]
[37] Primary decision [83].
I accordingly make the following orders:
1) [ARM's] claim is dismissed.
2) A declaration that the [Royalty Agreement] is a valid and binding agreement and of full force and effect.
3) Pursuant to section [s 122A(6) of the Act], SKR has the Warden's consent to lodge a successive absolute caveat as against [the Tenement] for:
'An equitable lien, charge or constructive trust, held by SKR to secure payment by ARM of an actual or potential indebtedness of $8,000,000 of ARM to SKR, under the [Sale Agreement], and more particularly set out in the [Royalty Agreement].'
4) I direct that the parties confer as to appropriate cost orders to flow from these reasons with liberty to apply to the court on 72 hours' notice in the absence of agreement.
(original emphasis)

Appeal to the General Division of the Supreme Court

On 15 February 2023, ARM filed an appeal notice in the form prescribed for an appeal under s 147 of the Act, in which the decision the subject of the appeal was identified as:
[T]he final judgment/determination/decision of the Warden's Court at Perth on the 9th day of January 2023 in respect to:
the decision of Warden Maughan in [the primary decision].
The grounds of appeal to the General Division initially challenged the warden's conclusions that:
1.SKR held an equitable lien, equitable charge, or constructive trust (ground 1).
2.There was an agreement as between SKR and ARM made in May or June 2012 in relation to the sale and transfer of the Tenement, which included the payment of $8 million in royalties from ARM to SKR (ground 2).
3.On its proper construction, the Royalty Agreement was made for good consideration by SKR (ground 3).
By an amended appeal notice filed on 9 August 2023, ARM relevantly abandoned ground 3, which challenged the conclusion that the Royalty Agreement had contractual force.

Primary appeal decision

The appeal to the General Division was heard over three days in February 2024. On 28 March 2024, the primary appeal judge delivered her written reasons for decision in the appeal.
The primary appeal judge found that the decision to consent to the lodgement of a successive caveat was a decision made by the warden in the performance of an administrative function and could not be the subject of an appeal to the Supreme Court. The primary appeal judge determined this question as a matter of construction of s 122A(6) of the Act. Her Honour held that:
1.The 2004 Amendment Act distinguished between matters undertaken in the warden's court (where that expression was inserted into the Act) and functions performed by a warden. The reference to 'a warden' rather than a 'warden's court' in s 122A(6) therefore tends to indicate an intention by Parliament that a decision about whether to consent to the lodgement of a successive caveat would be an administrative decision of the warden, and not a judicial decision made in the warden's court.[38]
2.The approval of the lodging of the successive caveat could not be said to be the exercise of a power conferred upon the warden's court by s 134(1) or s 134(2)(g) of the Act. Consent to the lodgement of a successive caveat does not resolve any relevant dispute, but merely protects an interest determined to exist.[39]
3.The decision to consent to the lodgement of a successive caveat under s 122A(6) is properly to be regarded as the determination of future rights (an indicia of the non-judicial character of the power) rather than the determination of existing rights of parties who are in dispute as to those rights (which is an ordinary indicia of judicial power).[40]
[38] ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2024] WASC 103 (primary appeal decision) [63] - [64].
[39] Primary appeal decision [68] - [69].
[40] Primary appeal decision [74], [77], [95].
The primary appeal judge then stated her conclusion in the following terms:[41]
[41] Primary appeal decision [96] - [97].
In my view, the combined force of the fact that:
1.the expression 'warden', rather than 'warden's court' is used in s 122A(6) of the [Act];
2.the decision to consent to the lodgement of a successive caveat is not the determination of a dispute as to existing rights;
3.the decision to consent to the lodgement of a successive caveat is not a matter which is referred to as being within the warden's court's jurisdiction under s 132 of the [Act]; and
4.the power to consent to the lodgement of a successive caveat is not a power referred to in s 134 of the [Act] as a power conferred on the warden's court,
leads to the conclusion that the preferable view is that that the consent to lodging a successive caveat is a decision of the warden acting administratively.
Accordingly, it follows that I find that the Warden's decision to consent to the lodgement of the successive caveat by [SKR] is not amenable to appeal and can only be challenged through judicial review proceedings.

The primary appeal judge then observed:[42]
I have found that the decision to permit the lodgement of a successive caveat was an administrative decision of the Warden and not, therefore, a decision amenable to appeal. I have also found that it is not appropriate to simply treat the appeal as an application for judicial review.
I have explained that, as to the other matters about which [ARM] seeks to appeal, no orders exist which could be the subject of an appeal and I have come to the preliminary view therefore that the appeal is incompetent at this stage.
[42] Primary appeal decision [98] - [99].
The primary appeal judge's reasons directed the parties to confer about the orders consequent from her Honour's decision 'that the consent to lodge a successive caveat was an administrative decision', and to provide an agreed minute or competing minutes of proposed orders.[43]
[43] Primary appeal decision [102].
The parties filed competing minutes of proposed orders. SKR contended, in effect, that the appeal should be dismissed because it had been found to be incompetent. ARM contended that the appeal proceedings should be adjourned sine die pending determination of an application for judicial review. After hearing submissions on 10 May 2024, on 14 May 2024 the primary appeal judge determined to make an order dismissing the appeal. Her Honour gave ex tempore reasons for making that order. In essence, the primary appeal judge concluded:[44]
In my view [ARM's] desire to have the substantive dispute determined on its merits and its desire to reduce the costs of doing so does not override the fact that [SKR] has succeeded in the appeal albeit only on a question of jurisdiction. There are no orders for which the appeal was brought which have not been disposed of by my finding that the court lacked jurisdiction to determine the matter on appeal. Given those circumstances, it is my view that the proper course is to dismiss the appeal.
[44] Primary appeal ts 273.
The orders made by the primary appeal judge on 14 May 2024 were that the 'appeal is dismissed' and that ARM pay SKR's costs of the jurisdictional issue which was raised and determined in the appeal.

Appeal to this court

On 4 June 2024, ARM appealed to this court from the primary appeal judge's orders dismissing the appeal to the General Division from the orders of the warden's court. The appeal notice indicated that the appeal was made pursuant to s 58 of the Supreme Court Act 1935 (WA), and that leave to appeal was not required.
Shorn of particulars, the sole ground of appeal was that:[45]
1.The primary [appeal] judge erred in law in finding that the order of a warden's court made 9 January 2023 to the effect that [SKR] 'has the Warden's consent' for the purposes of s 122A(6) of the [Act] to lodge a successive absolute caveat' was a decision of the warden acting administratively … and should instead have found that the order was a final judgment, determination or decision of a warden's court, and as such was [amenable] to appeal pursuant to s 147(1) of the Act.
[45] White AB 6.
In its respondent's answer filed on 1 August 2024, SKR contended that the primary appeal judge's order was interlocutory in character so that leave to appeal is required. SKR further contended that, as an application for leave to appeal had not been made, the appeal was incompetent.
By application in an appeal filed on 21 November 2024, ARM applied for leave to appeal and an extension of time in which to appeal. On 25 November 2024, Mitchell JA referred those applications to the hearing of the appeal. He also granted ARM leave to file an amended appeal notice seeking leave to appeal and an extension of time in which to appeal. On 17 December 2024, ARM filed an amended appeal notice in which it sought leave to appeal and an extension of time in which to appeal.
In written submissions, SKR did not oppose the grant of an extension of time in which to appeal, if required, but did oppose the grant of leave to appeal. However, at the hearing of the appeal senior counsel for SKR properly conceded that the grant of leave to appeal would be appropriate if the grounds of appeal were established.[46]
[46] Appeal ts 71.
As a result of interchanges with the court at the hearing of the appeal, senior counsel for ARM applied for leave to amend the grounds of appeal to add the following two additional grounds:[47]
1A.The primary [appeal] judge erred in law in finding that the Supreme Court did not have jurisdiction to determine grounds 1 and 2 in the amended appeal notice filed 9 August 2023.
1B.The primary [appeal] judge erred in law in failing to determine grounds 1 and 2 in the amended notice of appeal filed 9 August 2023 and by dismissing the appeal for want of jurisdiction.
ARM also sought leave to amend its orders wanted to seek a remittal to the General Division, rather than a declaration as to the jurisdiction of the General Division.
[47] ARM's application in an appeal filed 6 February 2025.
We are satisfied that it is in the interests of justice to allow these amendments, which will enable the court to address the real issues in dispute between the parties. SKR will not suffer any prejudice because of the amendment that cannot be cured by giving it an opportunity to provide supplementary written submissions. SKR was given that opportunity at the conclusion of the hearing of the appeal.

Disposition

For the following reasons, grounds 1A and 1B are established and require the appeal to this court to be allowed.

Nature of the power to consent to lodgement of successive caveats

In our view, the power to consent to the lodgement of a successive caveat in s 122A(6) of the Act is an administrative function conferred on a warden rather than a judicial power conferred on a warden's court. We essentially agree with the primary appeal judge's reasons for reaching that conclusion as a matter of statutory construction.
The 2004 Amendment Act sought to resolve the prior confused state of the law as to the character of functions conferred on wardens and wardens' courts under the Act. It did so by amending the Act to refer to 'the warden', or 'a warden', in relation to administrative powers exercisable by wardens as designated officers, and 'a warden's court' or 'the warden's court' in relation to jurisdiction conferred on wardens' courts.
While special provision exists for regulations relating to functions conferred on wardens under pt IV of the Act, the distinction between powers conferred on a warden and powers conferred on a warden's court is consistently maintained in other parts of the Act. For example, in pt III, s 30(3) confers an administrative power on a warden to grant a permit to enter on private land to search for minerals or mark out mining tenements. Section 30(4) and s 30(5) allow a warden to fix a sum of money, which in the warden's opinion will provide a reasonable compensation for likely damage, to be paid to the Director General of Mines. However, s 30(6) - s 30(6d) provide for the owner to apply to the warden's court for an order requiring the Director General to pay the sum to them.
Various functions relating to caveats are conferred on wardens, rather than wardens' courts, by pt VI of the Act. In addition to consenting to the lodgement of a successive caveat under s 122A(6), s 122D(1) provides for a warden to consent to the registration of a dealing or surrender while a caveat remains in force and s 122E(1)(a) provides for a caveat to cease to have effect on the direction of a warden for its removal. These provisions were amended by s 104 of the 2004 Amendment Act. References to 'a warden' in these provisions were retained, but:
1.The former reference in s 122A(6) to a successive caveat being lodged 'by leave' of a warden was replaced with a reference to a successive caveat being lodged 'with the consent' of a warden.
2.The former reference in s 122D(1) to registration 'upon the order' of a warden was replaced with a reference to registration 'with the consent' of a warden.
3.The former references in s 122E to a caveat ceasing to have effect on the 'order' of a warden for its removal were replaced by references to a caveat ceasing to have effect on the 'direction' of a warden for its removal.
In this way, the 2004 Amendment Act replaced language which is more apposite to describe action by a court - the grant of 'leave' and the making of an 'order' - with language more suited to describe action by an administrative officer - giving 'consent' and making a 'direction'. This reinforces the objective legislative intention to clarify that the functions conferred by s 122A, s 122D and s 122E on 'a warden' were administrative functions conferred on a designated officer rather than judicial functions conferred on a warden's court.
It is also relevant that the grant of consent to the lodgement of a successive caveat under s 122A(6) does not require any determination of the existence of an interest held by the caveator in the relevant mining tenement. A caveat may be lodged by any person claiming an interest in a mining tenement and, while a caveat may protect an existing interest, the lodgement of either a first or a successive caveat does not depend on any finding that the interest exists. The grant of consent under s 122A(6) does not require a warden to determine that an interest exists, and s 122A itself does not provide for the determination of that question.
Construing s 122A(6) and associated provisions as conferring an administrative power does not give rise to any practical inconvenience or injustice in the operation of the Act. Where a warden's court resolves a justiciable controversy about the existence of a proprietary interest in a mining tenement by finding the interest exists, it may protect that interest by granting an injunction restraining the tenement holder from dealing with the tenement in a manner inconsistent with the interest. Under s 143 of the Act, particulars of the injunction are to be notified to the Director General of Mines, who is to enter the particulars in the register against the mining tenement and so provide public notice of the existence of the interest and the injunction. Where a warden's court determines that a caveator does not actually hold the interest, it can order the caveator to withdraw the caveat. Further, once a warden's court has determined a controversy as to the existence of a claimed interest in a mining tenement, the administrative powers of a warden under s 122A(6), s 122D and s 122E of the Act remain available to be exercised in a way that takes account of the court's determination.
The powers conferred on a warden's court in pt VIII by s 134 of the Act do not expressly include the exercise of powers conferred on a warden by pt VI of the Act. While the language of s 134 is broad, exercise of the powers conferred on a warden by pt VI of the Act do not naturally fall within its ordinary meaning. For the reasons just explained, the effective exercise of the jurisdiction of a warden's court does not depend on the court having the powers conferred in pt VI of the Act.
Therefore, we agree with the primary appeal judge that the power in s 122A(6) of the Act to consent to lodging a successive caveat is a power conferred on a warden acting administratively, and is not exercisable by a warden's court acting under s 132 and s 134 of the Act.

The competence of the appeal to the General Division

The point at which we have taken a different view from that of the primary appeal judge concerns the impact of the above conclusion on the competence of ARM's appeal to the General Division. In that regard, we accept ARM's submission that the primary appeal judge erroneously focused on the character of the power to consent to the lodgement of a successive caveat in determining whether the Supreme Court has jurisdiction to determine ARM's appeal to the General Division.
A justiciable controversy arose between ARM and SKR as to the existence of the Sale Agreement, whether the Royalty Agreement had contractual force and whether those agreements gave SKR a proprietary interest in the Tenement by way of equitable lien, equitable charge or constructive trust. That controversy was within the jurisdiction of a warden's court to resolve under s 132(1)(b), s 132(1)(f) and s 132(1)(g) of the Act. Both parties engaged that jurisdiction through ARM commencing proceedings by plaint in the warden's court and SKR making its counterclaim in those proceedings in the warden's court. The orders made by Warden Maughan on 9 January 2023 involved the warden's court resolving that controversy and determining that SKR had a proprietary interest in the Tenement.
We do not accept SKR's submission that order 3 of the orders made on 9 January 2023 was not an order made by the warden's court as a matter of fact. While some aspects of the cover sheet of the primary decision are ambiguous, the reasons taken as a whole constitute a judicial determination of a controversy in the warden's court proceedings as to whether SKR held a proprietary interest in the Tenement. Order 3 is expressed to be an order and is not in a form which distinguishes it from the other orders which clearly involve the exercise of judicial power by the warden's court. Order 3 grants relief sought by SKR by its Counterclaim in the warden's court proceedings.
Further, order 3 of the orders made on 9 January 2023 is not confined to giving administrative consent to the lodgement of a successive caveat in relation to SKR's claimed interest in the Tenement. When order 3 is read and understood in the context of the issues raised for the determination of the court and the way the warden resolved those issues, the legal effect of the order is to recognise the existence of SKR's proprietary interest in the Tenement. Order 3 refers to the lodgement of a successive absolute caveat for an interest identified in the order rather than merely an interest claimed by SKR. Construed in context, order 3 at least implicitly recognises the existence of the identified proprietary interest held by SKR in the Tenement. That construction of order 3 can explain why the warden may have considered it unnecessary to make the declaration sought by SKR in its Counterclaim that SKR held the interest which the warden had found to exist.
Even if (contrary to the view expressed above) order 3 were put aside, the effect of order 1 of the orders made on 9 January 2023 still needs to be considered. Order 1 dismissed ARM's claim in the warden's court for an order for the removal of the Caveat and injunctive relief. The notice of appeal to the General Division appealed from all the orders made on 9 January 2023.
We do not accept SKR's submission that the appeal from order 1 was subsequently abandoned. Consent orders made in the General Division appeal on 28 July 2023 required ARM to file an outline of submissions and a minute of orders wanted. The minute of orders filed by ARM on 9 August 2023 pursuant to those consent orders sought to set aside orders 1 and 3 of the orders made on 9 January 2023 and an order that the Caveat be removed from the Tenement. Paragraph 2 of the outline of submissions filed by ARM on the same date indicated that the appeal was from both order 1 and order 3. Paragraph 19 of ARM's reply submissions filed in the appeal to the General Division on 9 January 2024 maintained that ARM appealed against orders 1 and 3 of the orders made on 9 January 2023, and asked that the court set aside order 1 of those orders.[48]
[48] Blue AB 47.
ARM ultimately did not pursue its claim for injunctive relief made in the warden's court. However, it did not abandon its claim for a direction that the Caveat be removed from the Tenement. SKR has not pointed to anything said by counsel for ARM in oral submissions which expressly and unambiguously[49] abandoned the appeal from order 1 of the orders made on 9 January 2023.
[49] See by analogy Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79; (2012) 42 WAR 287 [115], [324], [336].
It is common ground in this appeal that the orders made on 9 January 2023 give rise to a res judicata or issue estoppel as to the existence of SKR's proprietary interest in the Tenement. It is unnecessary to determine whether the completion of a judgment of the warden's court in the Form provided by reg 129(1) of the Regulations would be required before the parties' rights merge in the judgment. As the finding that SKR held a proprietary interest in the Tenement was an essential step in the warden's reasons in the primary decision for making the orders of the warden's court, the orders give rise to an issue estoppel in relation to SKR's claimed interest in the Tenement.[50]
[50] For a statement of general principles as to issue estoppel, see Blair v Curran (1939) 62 CLR 464, 531 - 533.
Therefore, the orders made on 9 January 2023, including order 3, were in fact made by a warden's court. The legal effect of those orders, including order 3, was to finally determine the dispute as to the existence of SKR's proprietary interest in the Tenement. An order in fact made by a warden's court which has the legal effect of finally establishing SKR's proprietary interest in the Tenement necessarily bears the character of a 'final judgment, determination or decision of a warden's court' within the meaning of s 147(1) of the Act.
That is so even though the warden's court did not have power to give consent to the lodgement of a second caveat under s 122A(6) of the Act. Error as to the existence of the power of the warden's court to make the orders may be corrected on appeal but does not operate to deny ARM the right to appeal from the orders made by the court. Even if an order is made beyond power, it will remain a 'judgment, determination or decision' within the meaning of s 147(1) of the Act.[51] An appeal from orders made to give effect to the warden's determination of the substantive dispute (which would contend that different orders ought to have been made) remains an appeal from a 'final judgment, determination or decision of a warden's court' within the meaning of s 147(1) of the Act.
[51] See Ah Yick v Lehmert (1905) 2 CLR 593, 601 (Griffiths CJ, Barton J agreeing), cited by Gageler J in The State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 [55]; Calvin v Carr (1979) 53 ALJR 471, 474 - 475; Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd [2019] NSWCA 11; (2019) 99 NSWLR 317 [29]. See also, by analogy, Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338, 342 - 344 (Bowen CJ), 372 - 373 (Smithers J).
Contrary to SKR's submissions, the fact that a judgment had not been extracted as provided for in reg 129(1) of the Regulations does not deprive the orders made on 9 January 2023 of the character of a 'final judgment, determination or decision of a warden's court' for the purposes of s 147(1) of the Act. The orders were made in a signed document which complied with the requirements of s 137(5) of the Act. The right of appeal conferred by s 147(1) of the Act arises when an order is made rather than when formal judgment is extracted.

SKR's submissions

SKR contends that the primary appeal judge did not find that the court had no jurisdiction to determine grounds 1 and 2 in the amended appeal notice to the General Division. SKR contends that ARM's appeal to the General Division attempted to invoke a right of appeal which was not compliant with a condition of the right to appeal conferred by s 147(1) of the Act. SKR submits that the primary appeal judge dismissed the appeal as incompetent on the basis of this non-compliance, not because the court had no jurisdiction over the matter. SKR therefore submits that grounds 1A and 1B are not established. We do not accept SKR's submission, which adopts a very narrow and pedantic construction of the proposed grounds.

The primary appeal judge found that the appeal to the General Division was incompetent. It was found to be incompetent because there was no right of appeal against the primary decision, which in her Honour's view was not a 'final judgment, determination or decision of a warden's court' for the purposes of s 147(1) of the Act. In the passage quoted at [63] above, the primary appeal judge said that the order dismissing the appeal to the General Division was based on the 'finding that the court lacked jurisdiction to determine the matter on appeal'.[52]
[52] See also primary appeal decision [101], where the primary appeal judge characterised the issue as involving the 'question of the lack of jurisdiction'.
Contrary to SKR's submissions, the primary appeal judge did not find that the appeal was incompetent because 'it was not compliant with a condition of the statutory right as conferred'. That may occur, for example, where a party purports to exercise an available right of appeal without seeking the grant of leave to appeal which is a condition of the exercise of the right.[53] In the present case, the primary appeal judge found that there was no right of appeal from the primary decision at all.
[53] See Lee v Lawfirst Pty Ltd [2023] WASCA 59 [4].
The effect of the primary appeal judge's ruling was that the court had no jurisdiction to determine the appeal (and therefore the grounds of appeal). That jurisdictional finding was the reason why her Honour did not deal with the grounds of appeal to the General Division. As the court did have jurisdiction to determine the appeal, the primary judge erred in failing to determine the grounds of appeal and dismissing the appeal to the General Division.
For these reasons, grounds 1A and 1B of the appeal to this court are established. It is unnecessary to determine ground 1.

Orders

We agree with SKR's submission that the primary appeal order dismissing the appeal to the General Division as incompetent was interlocutory in character, as it did not determine the existence of any substantive right, duty or liability.
The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties. The test requires the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause pending between them.[54]
[54] Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 [25].
The only issue determined by the primary appeal decision was whether the Supreme Court has jurisdiction to hear the appeal. The primary appeal decision did not make any determination of the rights of the parties in relation to the Tenement. Therefore, the order dismissing the appeal to the General Division as incompetent was interlocutory,[55] and leave to appeal is required.
[55] See, by analogy, SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75; (2008) 168 FCR 410 [23].
However, as senior counsel for SKR ultimately accepted in oral submissions, leave to appeal should be granted in all the circumstances of the present case. The decision below was wrong, and if left uncorrected has the capacity to impede ARM from challenging the determination of the warden's court as to SKR's interest in the Tenement. The potential impact of the orders made by the primary appeal judge on ARM's substantive rights is such as to make it in the interests of justice to grant leave to appeal.[56]
[56] As to the general principles, governing the grant or refusal of leave to appeal, see the recent discussion in Mineralogy Pty Ltd v CITIC Ltd [2024] WASCA 168 [56] - [63].
ARM's amended orders wanted seek to set aside the orders made in the General Division and for the matter to be remitted to the General Division. ARM does not seek an order which specifies whether the matter should be dealt with by the primary appeal judge on remittal. It does not contend that there is any legal reason why the primary appeal judge, who has not expressed any view as to the substantive issues, could not continue to deal with the matter. We agree that a remittal order in the terms proposed by ARM is appropriate, and it is unnecessary for this court to make any direction as to the judge who is to deal with the matter on remittal.
For the above reasons, the following orders should be made in the appeal:
1.The requirement for the appellant to file an affidavit in support of its application in an appeal filed 6 February 2025 is dispensed with.
2.The appellant has leave to amend its grounds of appeal by adding the following additional grounds:
1A.The primary judge erred in law in finding that the Supreme Court did not have jurisdiction to determine grounds 1 and 2 in the amended appeal notice filed 9 August 2023.
1B.The primary judge erred in law in failing to determine grounds 1 and 2 in the amended notice of appeal filed 9 August 2023 and by dismissing the appeal for want of jurisdiction.
3.The appellant has leave to amend its orders wanted in terms of the amended orders wanted attached to its application in an appeal filed 6 February 2025.
4.The appellant's application for an extension of time in which to appeal is granted.
5.Leave to appeal is granted.
6.The appeal is allowed.
7.Orders 1 and 2 of the orders made by the Supreme Court of Western Australia in GDA/2/2023 are set aside.
8.The appeal in GDA/2/2023 is remitted to the General Division of the Supreme Court of Western Australia to be determined according to law.
We would hear from the parties as to the costs of the appeal to the General Division and the appeal to this court.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
19 MARCH 2025