BHP Minerals Pty Ltd v Aquila Steel Pty Ltd
[2023] WASCA 21
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BHP MINERALS PTY LTD -v- AQUILA STEEL PTY LTD [2023] WASCA 21
CORAM: MURPHY JA
MITCHELL JA
VAUGHAN JA
HEARD: 21 & 22 NOVEMBER 2022
DELIVERED : 14 FEBRUARY 2023
FILE NO/S: CACV 38 of 2022
BETWEEN: BHP MINERALS PTY LTD
First Appellant
ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD
Second Appellant
MITSUI IRON ORE CORPORATION PTY LTD
Third Appellant
AND
AQUILA STEEL PTY LTD
First Respondent
AMCI (IO) PTY LTD
Second Respondent
HON WILLIAM JOSEPH JOHNSTON MLA in his capacity as Minister for Mines and Petroleum of the State of Western Australia
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: ALLANSON J
Citation: AQUILA STEEL PTY LTD -v- BHP MINERALS PTY LTD [2022] WASC 121
File Number : CIV 1347 of 2021
Catchwords:
Mining law - Surveys - Mining lease - Objection to survey - Whether Minister's determination of objection to survey would determine finally the proper construction of the grant of a mining tenement
Practice and procedure - Abuse of process - Whether an abuse of process to commence declaratory proceedings relating to proper construction of grant of mining tenement where same or similar issue raised in procedure for objection to survey
Legislation:
Mining Act 1978 (WA), s 8, s 18, s 58(2a), s 66, s 67, s 71, s 74, s 76, s 79, s 80(1), s 82(1)(ba), s 83(1), s 105(1), s 105A, s 105B, s 116, s 117, s 127, s 132, s 134, s 147, s 162(1), s162(2)(ka)
Mining Regulations 1981 (WA), reg 24, reg 26, reg 59, reg 61, reg 64, reg 66, reg 71, reg 73, reg 92, reg 116, reg 117, reg 118, reg 119, reg 120, reg 120A, reg 120C, reg 120E, reg 163(1)
Licence Surveyors (General Surveying Practice) Regulations 1961 (WA), reg 4, reg 5
Result:
Leave to appeal refused
Appeal dismissed
Category: A
Representation:
Counsel:
| First Appellant | : | S Wright SC & M Pudovskis |
| Second Appellant | : | S Wright SC & M Pudovskis |
| Third Appellant | : | S Wright SC & M Pudovskis |
| First Respondent | : | B Dharmananda SC & S P Tomasich |
| Second Respondent | : | B Dharmananda SC & S P Tomasich |
| Third Respondent | : | No appearance |
Solicitors:
| First Appellant | : | Herbert Smith Freehills |
| Second Appellant | : | Herbert Smith Freehills |
| Third Appellant | : | Herbert Smith Freehills |
| First Respondent | : | DLA Piper Australia - Perth |
| Second Respondent | : | DLA Piper Australia - Perth |
| Third Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Aquila Steel Pty Ltd v BHP Billiton Minerals Pty Ltd [2020] WAMW 21
Aquila Steel Pty Ltd v BHP Minerals Pty Ltd [2022] WASC 121
Atkins v Minister for Mines (1996) 15 WAR 226
Campbell v Knightsbridge Holdings Pty Ltd [1986] WASC 321
Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208; (2020) 56 WAR 263
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
Consolidated Gold Mining Areas NL v Oresearch NL (1990) 3 WAR 208
Crocker Consolidated Pty Ltd v Wille [1988] WAR 187
Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421
Global Doctor Ltd v Hodgkinson [2003] WASCA 119; (2003) 28 WAR 286
Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234
Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374
Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] [2021] WASCA 105
Moore v Inglis (1976) 9 ALR 509
Noosa Shire Council v TM Burke Estates Pty Ltd [2000] 1 Qd R 398
Pilbara Iron Ore Pty Ltd v Ammon [2008] WASC 108
Re His Worship Calder SM; Ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525
Re Minister for Minerals & Energy; Ex parte McKenna (1989) 2 WAR 401
Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343
Regional Director of Education, Metropolitan East, Department of Education NSW v International Grammar School Sydney Ltd (1986) 7 NSWLR 302
Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 36 FCR 367
Shanahan v Scott (1957) 96 CLR 245
The Administration of the Territory of Papua and New Guinea v Guba [1973] HCA 59; (1973) 130 CLR 353
Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134
Table of Contents
Background
The judicial review proceedings
The declaratory proceedings
The declaratory relief claimed by Aquila
BHP's application for a stay
The primary decision
BHP's grounds of appeal
Ground 1
Ground 2
Ground 3
Ground 4
Summary of appellant's case
Parties' submissions
BHP's submissions
Ground 1 - functions of the Surveyor
Ground 2 - the Minister's decision
Ground 3
Ground 4
Aquila's submissions
The statutory regime - grants
Tenements
Exploration licences
Mining leases
Instrument of lease
Mining tenements protected
Statutory regime - the Warden's Court
2007 Amendments
Warden's Court
The statutory regime - surveys and boundaries
Power to make regulations
The Regulations
Mining leases
Marking out
Surveys
Surveyor's report
Evidence
Directions for the guidance of surveyors performing surveys
1961 Regulations
Disposition
A justiciable controversy
The legislative scheme
BHP's objection
Ground 1
Ground 2
Ground 3
Ground 4
Conclusion
JUDGMENT OF THE COURT:
This is an appeal from orders made by Allanson J pursuant to the learned judge's decision in Aquila Steel Pty Ltd v BHP Minerals Pty Ltd[1] (primary decision).
[1] Aquila Steel Pty Ltd v BHP Minerals Pty Ltd [2022] WASC 121.
In the primary court, the first and second respondents (collectively, Aquila) commenced proceedings CIV 1347 of 2021 (declaratory proceedings) against the appellants (collectively, BHP) and the third respondent (Minister). Aquila sought declarations in relation to the proper construction of the grant of, and the scope of, certain iron ore tenements in the Pilbara. BHP applied for a permanent stay of the declaratory proceedings and the learned judge dismissed BHP's application for a stay. BHP seeks leave to appeal and to appeal against the orders dismissing its stay application.
The background is set out in detail in [10] ‑ [47] below.[2] In broad terms, the dispute arose as follows. In 1967, predecessors in title of BHP were authorised to temporarily occupy temporary reserve 4286H (Temporary Reserve) and to prospect for iron ore on the area of the Temporary Reserve. The boundaries of the Temporary Reserve were fixed, relevantly, by reference to a datum point 10 miles distant from 'Rocklea Homestead'. This later became a cause for confusion because there were two 'Rocklea Homesteads' - an 'old' one erected prior to 1943 (Old Homestead) and a 'new' one erected in 1966 (New Homestead). The two homesteads were about 400 m apart, with the Old Homestead some 400 m further to the east of the New Homestead.
[2] In those paragraphs there is, among other things, a description of the process whereby BHP and Aquila obtained the mining tenements which bring about the parties' dispute. The court was provided with a diagrammatic representation of the mining tenements and the contested area which results from the dispute as to whether the relevant datum point is to be located by reference to the Old Homestead or the New Homestead. That diagram is reproduced at the end of these reasons. An understanding of the background recounted below is assisted by referring to the diagram.
BHP and Aquila were subsequently granted mining tenements in the area. In general terms, BHP's tenements are to the west of Aquila's tenement. BHP's tenements cover the area of the Temporary Reserve. BHP contended that the area of the Temporary Reserve, and thereby the area of its tenements, is (relevantly) measured by reference to the distance from the Old Homestead. The effect of this would be to put the boundaries of BHP's tenements some 400 m further to the east than if the boundaries were measured by reference to the New Homestead. Aquila, on the other hand, contended that the area of the Temporary Reserve, and thereby BHP's tenements, are measured by reference to the distance from the New Homestead. The effect of accepting Aquila's contention would be to enlarge the area of Aquila's tenement by putting its western boundary some 400 m further toward the west.
Prior to the commencement of the declaratory proceedings, a survey of Aquila's tenement was undertaken on the basis that the eastern boundary of BHP's tenements should be measured by the designated distance and bearing from the New Homestead (that being Aquila's case). BHP objected to the survey under reg 120A of the Mining Regulations 1981 (WA) (Regulations). The objection was heard by the Mining Warden. In Aquila Steel Pty Ltd v BHP Billiton Minerals Pty Ltd[3] (Warden's decision), the Warden recommended to the Minister that BHP's objection to the survey be upheld. The Warden recommended to the Minister that the boundaries of Aquila's tenement be delineated on the basis that it not include land forming the subject of the Temporary Reserve as delineated by reference to the designated distance and bearing from the Old Homestead.
[3] Aquila Steel Pty Ltd v BHP Billiton Minerals Pty Ltd [2020] WAMW 21.
On the same day as the commencement of the declaratory proceedings, Aquila also commenced judicial review proceedings challenging the Warden's decision (judicial review proceedings).
BHP applied to have the declaratory proceedings permanently stayed on the grounds that the action was vexatious and an abuse of process. In broad terms, BHP contended that (1) the scope of the Temporary Reserve had already been substantially dealt with by the Warden under the procedure provided for in reg 120A of the Regulations, (2) the Warden had delivered the Warden's decision and made his recommendation to the Minister, (3) Aquila had exercised its rights to judicial review in respect of the Warden's decision, and (4) on the proper construction of the Mining Act 1978 (WA) (Mining Act) and the Regulations, the procedure followed by the parties under reg 120A would lead to a final determination by the Minister of the proper construction of the documents creating the Temporary Reserve and, thereby, the scope of the grant of BHP's tenements and, correspondingly, the scope of Aquila's tenement.
Allanson J dismissed BHP's application for a stay of the declaratory proceedings. BHP appeals against that decision.
For the reasons which follow, the appeal should be dismissed. On the proper construction of the Mining Act and the Regulations, the Minister does not have the jurisdiction to determine finally the scope and legal effect of the grant of the relevant mining tenements, pursuant to the procedures under the Regulations for objections to mining surveys. The proper construction of the scope and legal effect of the grant is a matter for curial determination. The declaratory proceedings are an appropriate vehicle for determining the dispute as to the scope and legal effect of the grant of the relevant mining tenements. There was no abuse of process in Aquila bringing and prosecuting the declaratory proceedings in the circumstances.
Background[4]
[4] In this background, for convenience of exposition, no distinction is drawn between the entities collectively defined in these reasons as, respectively, 'Aquila' and 'BHP'.
Section 276 of the Mining Act 1904 (WA) (1904 Act), as it stood in 1967, provided:
The Minister … may temporarily reserve any Crown land from occupation, and the Minister may at any time cancel such reservation: Provided that if such reservation is not confirmed by the Governor within twelve months, the land shall cease to be reserved.
The Minister may, with the approval of the Governor, authorise any person to temporarily occupy any such reserve on such terms as he may think fit, but subject to the provisions of [s 277]. (emphasis added)
Section 277 of the 1904 Act did not make any provision for the survey or further definition of land the subject of a right to occupy a temporary reserve, or for the making of an application for a right to occupy a temporary reserve.
On 26 May 1967, BHP's predecessors in title wrote to the Mines Department applying for temporary reserves. The application included an area identified as 'Area 6'. Area 6 was a rectangular area of land defined by reference to a datum peg 10 miles at a bearing of 259°00' from 'Rocklea Homestead'.[5]
[5] Primary decision [37] ‑ [38]; GB 461 - 462.
On 8 August 1967, the Undersecretary for Mines advised that the Minister had approved the application made on 26 May 1967 subject to the 'usual iron ore conditions' and had given occupancy rights to BHP's predecessors in title to 'prospect for iron ore'.[6] The approval included the application in respect of Area 6, ie, the Temporary Reserve. The 'usual iron ore conditions' included that within 60 days of occupancy, the occupant should 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 advise the Minister of such point.[7]
[6] GB 464 - 465.
[7] GB 203.
On 28 September 1967, the Governor in Executive Council confirmed the temporary reservation by the Minister for Mines of the Temporary Reserve 'situated [at] Rocklea Homestead' as shown in red on plans at page 10 and 11 of Mines File 384/67. The plan at page 11 of Mines File 384/67 showed the area of the Temporary Reserve in very broad scale. The Governor in Executive Council also approved the Minister authorising BHP's predecessors in title to 'occupy the said Temporary Reserves ... for the purposes of prospecting for iron ore'.[8]
[8] GB 466 - 467.
The relevant provisions of the Mining Act came into force on 1 January 1982. At that time, cl 1(1) of the Second Schedule to the Mining Act provided:
Any land that is temporarily reserved from occupation under the [1904 Act] immediately before the commencing date shall continue to be so reserved on and after that date and until the reservation of the land or portion thereof is cancelled by the Minister by instrument in writing under his hand, and while the land is so reserved … a mining tenement shall not be granted under this Act in respect of the land without the consent in writing of the Minister (emphasis added)
The rights of occupancy were continued under cl 1(2) of the Second Schedule until the later of the expiry date and 6 months after the commencing date. Clauses 1(3) - (4) provided:
(3) At any time before an authority to occupy or right of occupancy expires as provided in subclause (2) of this clause the holder thereof may, if he has not then failed to comply with the terms and conditions upon which the authority or right was granted, mark out in accordance with this Act, and/or make application to the Minister for, a … exploration licence over the land or any portion thereof to which the authority or right relates.
(4) Notwithstanding anything in this Act, the Minister shall, on receiving an application made under subclause (3) … of this clause and on being satisfied that the applicant has complied with the terms and conditions referred to in subclause (3) of this clause, grant that application on such terms and conditions as he thinks fit. (emphasis added)
On commencement, s 58 of the Mining Act provided for the form of an application for an exploration licence. At that time, s 58(2) relevantly provided:
(a) The application shall be accompanied by a map on which are clearly delineated the boundaries of the area of the land in respect of which the licence is sought together with a written description of the area.
(b) Where a dispute arises with respect to the position of such land or the boundaries or any boundary thereof the warden or Minister may order a survey to be made of the boundaries or the boundary in order to settle the dispute.
The tenement register indicates that BHP's predecessors in title applied for Exploration Licence E47/16-I on 29 April 1982.[9] The application for the Exploration Licence was not before the court.
[9] GB 446 - 449.
On 4 October 1982, pursuant to the transitional provisions to the Mining Act, Exploration Licence E47/16‑I was granted to BHP's predecessors in title (BHP's EL).[10] The description of BHP's EL on the register indicates that the datum is identical to the Temporary Reserve.[11] A survey was not undertaken.[12]
[10] Primary decision [41].
[11] GB 446 - 449.
[12] Warden's decision [12].
After its grant, the area the subject of BHP's EL was not land which was 'open for mining' under s 18 of the Mining Act. It was not, within the meaning of s 18, 'Crown land, not being Crown land that is the subject of a mining tenement'. Accordingly, it was not land 'which may be the subject of an application for a mining tenement' as provided for in s 18(c) of the Mining Act.
On or around 24 May 2004, Aquila applied for an Exploration Licence, in general terms adjacent to the area of BHP's EL.[13] The application was not before the court. It was common ground that the land identified in Aquila's application included areas the subject of BHP's EL, as well as land to the east. The land the subject of BHP's EL was not land 'open for mining' which could be the subject of an application for a mining tenement in accordance with s 18 of the Mining Act.
[13] Primary decision [43].
On 23 March 2005, Exploration Licence E47/1413 (Aquila's EL)[14] was granted to Aquila, expressly excluding land the subject of BHP's EL. From this time, Aquila's EL shared a common boundary with BHP's EL, with the exception of an area to the east of BHP's EL that was not the subject of Aquila's EL. That common boundary is defined by reference to the area of the Temporary Reserve.
[14] Primary decision [10], [43]; Warden's decision [36].
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 pursuant to s 75(7), a mining lease in respect of any part of the land the subject of the exploration licence. Before 10 February 2006, s 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 the Act, grant to the holder one or more mining leases in respect of any parts of the land the subject of the exploration licence. From 10 February 2006, s 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 s 75(8), grant to the holder one or more mining leases in respect of any parts of the land the subject of the exploration licence.[15]
[15] See Mining Act Amendment Act 2004 (WA) s 31; Western Australia, Government Gazette, No 24 (3 February 2006) 516.
On 22 July 2005, BHP applied for 19 mining leases as partial conversion (under s 67 of the Mining Act) of BHP's EL.[16] Although copies of the grants were not before the court, it appears from the register that, on 6 June 2014, BHP was granted M47/683‑691, being 9 of the 19 mining lease applications, as partial conversion of BHP's EL. The leases included M47/685‑I, M47/686‑I, M47/688‑I and M47/689‑I (BHP's Neighbouring MLs). BHP's applications had sought the grant of a mining lease over areas described from a particular datum point. However, the applications would not have been authorised so far as the described area intruded into the area the subject of Aquila's EL, as that land was not the subject of BHP's EL and was not land that was open for mining. Therefore, the eastern boundary of BHP's Neighbouring MLs will be the western boundary of Aquila's EL.[17]
[16] Warden's decision [41].
[17] Primary decision [9], [11], [45]; Warden's decision [34], [41]; GB 364 ‑ 372, 400 ‑ 414.
No instrument of lease has been issued for BHP's tenements. That situation was not uncommon.[18] BHP's Neighbouring MLs were subject to the condition that BHP 'arrange and pay for a survey of [the land in respect of which the lease is granted] within the prescribed time and in the prescribed manner'.[19]
[18] Primary decision [89].
[19] s 82(1)(ba) of the Mining Act as it stood at all material times.
On 19 December 2013, Aquila applied for mining lease M 47/1494-I over an area relevantly defined by reference to the boundaries of Aquila's EL.[20]
[20] GB 373.
On 14 May 2018, M47/1494 (Aquila's ML) was granted to Aquila as partial conversion, under s 67 of the Mining Act, of Aquila's EL.[21] When Aquila's ML was granted, the grant was subject to a survey in accordance with s 105B of the Mining Act.
[21] Primary decision [46].
The grant of Aquila's EL and Aquila's ML could not affect the rights conferred on BHP by its previously granted Exploration Licence or Mining Leases. Section 117 of the Mining Act has at all material times provided, subject to presently immaterial exceptions, that the grant of any mining tenement does not have the effect of revoking or injuriously affecting any existing mining tenement.
At the time when Aquila's ML was granted, BHP's Neighbouring MLs had not been the subject of a mining survey.[22]
[22] Primary decision [9], [14]; WB 56.
On 21 June 2018, the Department of Mines, Industry Regulation and Safety (Department) wrote to Aquila directing that a survey of Aquila's ML be conducted, and provided instructions that the datum of the Temporary Reserve (and therefore BHP's EL) was based on the Old Homestead.[23] By this time, the datum peg from 1967 was missing.[24]
[23] Warden's decision [90].
[24] Appeal ts 17, 83.
An approved surveyor (Surveyor) was engaged by Aquila to carry out the survey of Aquila's ML (Survey). The Survey was carried out on 20 September 2018. The Department advised the Surveyor that 'the calculated position of [BHP's EL] and resultant mining leases has been accepted since July 2005' and that the Department was satisfied with the reasoning behind their spatial position.[25]
[25] Warden's decision [8] - [9], [92].
On 16 August 2018, the Department advised Aquila that, in the absence of further additional substantial information to provide proof and sound reason to change the 'pick up' of the Old Homestead, the Department considered that the calculated coordinates for BHP's EL were 'correct and absolute'. Aquila then requested a meeting with the Department in order to 'table new information regarding the true position of Rocklea Homestead when [the Temporary Reserve] was applied for'. There was a meeting on 17 August 2018 with the Department at which Aquila provided the Department with a letter taken from the Department of Lands file, which referred to the erection of the New Homestead in 1966. As a consequence of the letter, the Department directed the Surveyor to 'DGPS locate the [New Homestead] on which to base the amended boundary calculation for [the Temporary Reserve] … in order to ascertain the ground available to [Aquila's ML] prior to survey instructions being issued'. Subsequently, the Department issued the Surveyor instructions for the survey of Aquila's ML, which included the following notations on a Post‑it Note:[26]
You can do the calc from Rocklea Homestead (new) if you wish.
[26] Warden's decision [92] - [99].
Subsequent correspondence confirmed that, notwithstanding the words 'if you wish' in the Post‑it Note, the Department directed the Surveyor to use the New Homestead as the reference point for the Survey.[27]
[27] Warden's decision [114].
The Surveyor prepared a survey report dated 10 October 2018 in accordance with reg 120E of the Regulations based on the Department's instructions. The Surveyor found that there was an overlap between the land the subject of Aquila's ML and what purported to be the land the subject of BHP's Neighbouring MLs. The Survey depicted the eastern boundary of BHP's Neighbouring MLs as being further to the west than it was depicted on the Tengraph database, a tenement mapping system maintained by the Department. The Surveyor concluded that the boundaries of BHP's Neighbouring MLs were not accurate and, as a result, included land the subject of Aquila's ML.[28]
[28] Primary decision [16]; Warden's decision [13].
On 24 October 2018, BHP was notified of the Survey by the Department.[29]
[29] Graham affidavit, par 9; GB 391.
On 21 November 2018, BHP lodged an objection to the Survey pursuant to reg 120A of the Regulations (BHP's objection).[30] The Warden summarised the nature and scope of BHP's objection as follows:[31]
[106][BHP does] not contend that the Surveyor erred in any technical respect so far as the process of carrying out the survey was concerned. The objection asserts the Surveyor used the wrong reference point for the Rocklea Homestead, hence the boundaries of the area of land to which the Affected Tenements relate has not been correctly delineated and the Disputed Area ought to remain part of the Affected Tenements.
[107]In my view, there is no question that the Surveyor brings specialist knowledge to bear as to the process of conducting a survey including locating the true position of landmarks on the ground. However, this case does not involve locating the true position of a landmark, the actual positions of the [New Homestead] and [Old Homestead] not being in dispute.
[108]The essential question concerns which of the [New Homestead] or [Old Homestead] is the correct reference point.
[30] Dragovic affidavit, par 11; GB 127.
[31] Warden's decision [106] - [108].
The Warden also said, correctly with respect, that this question may be characterised as involving the proper construction of the documents creating the Temporary Reserve.[32]
[32] Warden's decision [108].
In addition to its objection under reg 120A, on 31 July 2019 BHP also commenced civil proceedings in the Warden's Court by filing a plaint pursuant to reg 121 of the Regulations (BHP'splaint). The Warden's Court has jurisdiction under s 132(1) of the Mining Act to hear and determine actions 'in respect of … the area, dimensions, or boundaries of mining tenements', with the corresponding power in s 134(1) to make orders for 'the determination of the area, extent, dimensions or boundaries of any mining tenement'.
In relation to BHP's plaint, on 31 July 2019 BHP's solicitors contended to Aquila's solicitors:[33]
[O]ur clients seek a positive declaration from the Warden's Court of the boundaries of their tenure. Our clients' proceedings will give them, and [Aquila], the certainty of a judicial declaration of the boundaries of our respective clients' tenure in this area, whereas the Objection Proceedings will only result in a recommendation by the Warden and an administrative decision by the Minister concerning the survey of your client's mining lease … [A]ny judicial decision handed down by the Warden in the Warden's Court proceedings would be a factor the Warden would take into account (as a matter of law) when making a recommendation in the Objection Proceedings. For that reason, we think our clients' plaint and the Objection Proceedings should be heard consecutively with our clients' Plaint (which is in the Warden's Court) being heard first and the Objection Proceedings (which are before the Warden in his administrative capacity) being heard immediately afterwards.
[33] GB 134.
BHP filed on 5 September 2019 a Minute of Proposed Orders seeking, by pars 5 and 6, that BHP's objection be heard immediately after the hearing of its plaint, alternatively that the dates for the hearing of BHP's objection be vacated, and that evidence in the plaint proceedings be evidence in the objection proceedings.[34]
[34] GB 143.
Aquila resisted BHP's application and the orders sought in pars 5 and 6 of BHP's Minute of Proposed Orders. It submitted, inter alia, that it was 'appropriate that the dispute as to the boundary [etc] be determined by the prescribed administrative process and not the Warden's Court'. In this connection, Aquila also submitted:[35]
[35] GB 145, 147, 151.
5.…
5.4A decision by the Warden's Court will be no more 'binding as between the parties' than a decision by the Minister [following] the hearing of the objection by the Mining Warden …
…
5.6The real implication of the Plaint proceedings is that, instead of the Magistrate (sitting as a Warden) making a recommendation to the Minister which is not binding on the Minister, the Magistrate (sitting as the Warden's Court) will make a decision which is binding on the Minister. [BHP is] seeking to deprive the Minister of the ultimate decision making power which was conferred by Parliament …
5.7Perversely, [BHP is] asking a Magistrate to determine whether [it] should have a determinative rather than merely recommendatory role in this dispute. This is clearly not appropriate. The proceedings for a declaration should have been brought, if at all, in the Supreme Court. It is not appropriate for a Magistrate [to] sit in relation to a dispute both as the Warden's Court (part of the judiciary) and the Mining Warden (part of the executive).
…
8.Maintenance of Plaint after determination of Objection would be an abuse of process - It does not need to be determined at this stage, but if [BHP seeks] to prosecute the Plaint after the determination of the Objection, the Objectors [sic - Aquila] will argue that [BHP is] precluded from doing so on the basis of principles of:
8.1Res judicata/issue estoppel - the issue has already been finally determined in proceedings between the parties at which the parties had an opportunity to present evidence and argument; and
8.2Abuse of process - the re‑litigation of the matter should not be permitted irrespective of whether the technical rules of res judicata and issue estoppel are satisfied because it would be oppressive to the parties and prejudicial to the public interest in the finality of decision making. (citations omitted)
It may be interpolated here that the parties' respective positions before the Warden referred to in [39] ‑ [41] above were effectively the reverse of their positions before the learned primary judge and on this appeal.
On 18 September 2019, BHP was advised that the Warden had determined that the hearing of BHP's objection was to proceed. The Warden invited the parties to confer with respect to an adjournment of BHP's plaint.[36]
[36] Primary decision [19].
The Warden heard BHP's objection between 24 and 25 September 2019, with closing submissions filed in October 2019.[37]
[37] Primary decision [20].
On 4 November 2020, the Warden delivered the Warden's decision and provided the parties with a copy of his recommendation to the Minister.[38] The Warden concluded the Warden's decision in the following terms:[39]
For the reasons set out above I recommend that the Minister:
(1)Uphold [BHP's] Objection;
(2)Set aside the survey of [Aquila's ML] dated 10 October 2018; and
(3)Direct that the boundaries of [Aquila's ML] be delineated on the basis that it not include land that was formerly the subject of [the Temporary Reserve] as delineated by reference to the designated distance and bearing from the [Old Homestead].
[38] Primary decision [21].
[39] Warden's decision [596].
On 30 April 2021, Aquila commenced the declaratory proceedings as well as the judicial review proceedings.[40]
[40] Primary decision [1].
On 14 May 2021, by consent, the proceedings commenced by BHP's plaint in the Warden's Court were withdrawn.[41]
[41] Primary decision [22].
The judicial review proceedings
The judge observed that:[42]
[42] Primary decision [51] - [52].
[51]By application pursuant to O 56 of the Rules of the Supreme Court, [Aquila] seek[s] review of:
The [Warden's] recommendation to the [Minister] in [the Warden's decision] that the Minister:
1.uphold the objection of [BHP];
2.set aside the survey of [Aquila's ML] dated 10 October 2018; and
3.direct that the boundaries of [Aquila's ML] be delineated on the basis that it not include land that was formerly the subject of [the Temporary Reserve] as delineated by reference to the designated distance and bearing from the [Old Homestead].
[52]The application is for a writ of certiorari and a declaration on four grounds:
The [Warden] fell into jurisdictional error in that:
1.In construing the Minister's constitution of [the Temporary Reserve] and making his consequential recommendation as to the survey of [Aquila's ML], the [Warden] had regard to irrelevant matters that the [Mining Act] required him not to consider, specifically:
1.1matters that were:
1.1.1not incorporated into [the Temporary Reserve] by necessary implication;
1.1.2extrinsic to [the Temporary Reserve];
1.1.3not reasonably available to a reasonable reader of the instrument of reservation on 4 August 1967 (the date of reservation); and
1.2the Governor's confirmation of the Minister's reservation.
2.In construing [the Temporary Reserve] and making his consequential recommendation as to the survey of [Aquila's ML], the [Warden] failed to consider relevant matters that the [Mining Act] required him to consider, specifically:
2.1the building that a reasonable reader visually examining the physical characteristics of the landmark in the period between about 26 May 1967 - 4 August 1967 would identify as the Rocklea Homestead; and
2.2the expertise, experience, and statutory role of the surveyor who surveyed the boundaries of [Aquila's ML].
3.The [Warden] misapprehended or disregarded the nature or limits of his power in regulation 120A(5) of the [Regulations] by applying a presumption based on long-term use and occupation to the survey of boundaries.
4.The [Warden] misapprehended or disregarded the nature or limits of his power in regulation 120A(5) of the [Regulations] by recommending that the Minister direct the delineation of the boundaries of [Aquila's ML].
The judge also observed that the judicial review proceedings concerned only the lawfulness of the proceeding before the Warden and whether his recommendation was within power. Also, unless the court set aside the Warden's recommendation to the Minister as having been made outside jurisdiction, the Minister must, pursuant to reg 120A(5), determine the dispute.[43]
[43] Primary decision [53] - [54].
The declaratory proceedings
The declaratory relief claimed by Aquila
In the declaratory proceedings, Aquila claimed the following relief:
ADeclarations that:
(a)on its proper construction, the reference to 'Rocklea Homestead' in the Temporary Reserve is:
(i)a reference to the location of the New Homestead;
(ii)not a reference to the location of the Old Homestead, nor any other location;
(b)part of the western boundary of [Aquila's ML] (being the Upper Shared Boundary) is identified by reference to the location of the New Homestead;
(c)no part of the boundary of [Aquila's ML] is identified by reference to the location of the Old Homestead;
(d)part of the boundary of [Aquila's EL] (being the Lower Shared Boundary) is identified by reference to the location of the New Homestead; and
(e)no part of the boundary of [Aquila's EL] is identified by reference to the location of the Old Homestead.
BHP's application for a stay
BHP applied by chamber summons for orders that Aquila's statement of claim be struck out and the action permanently stayed or dismissed on the basis that it is vexatious or an abuse or process of the court. BHP also applied for an extension of time in making that application.[44]
[44] Primary decision [2].
The judge said BHP initially relied on the following grounds:[45]
(a)The action has been brought for an illegitimate purpose, namely: to circumvent administrative proceedings underway but not yet completed under reg 120A(5) of the [Regulations]; further or alternatively, to provide [Aquila] with a remedy in respect of those administrative proceedings contrary to the statutory scheme in the [Mining Act] and the [Regulations].
(b)Further or alternatively, the action is unjustifiably oppressive, and vexatious, to [BHP] because it requires them to relitigate issues that are essentially identical to the issues already litigated before the Warden.
(c)Further or alternatively, the action is unjustifiably oppressive, and vexatious, to [BHP] because [Aquila has], concurrently with this action, exercised [its] right to apply for judicial review of the Warden's recommendation.
(d)Further or alternatively, for the same reasons as set out in grounds (a) to (c) above, the prosecution of the action would bring the administration of justice into dispute.
[45] Primary decision [3].
The judge noted that BHP did not press the contention that the action was brought for an illegitimate purpose. However, BHP maintained that Aquila's remedy lay in the statutory scheme under the Mining Act and the Regulations and that the ongoing administrative processes were relevant factors in the claim that the action was an abuse of process.[46]
[46] Primary decision [4].
The primary decision
Having considered the statutory context, the judge said that the application ultimately turned 'on a limited point of statutory construction'.[47] His Honour said that the critical question was whether Parliament intended that, on an objection under reg 120A, the warden would make findings on issues of fact or law that would be treated as final and binding.[48]
[47] Primary decision [106].
[48] Primary decision [107].
The judge concluded:[49]
[111]In conducting a mining survey, the surveyor is required to carry out the survey so as to conform with the land indicated by the applicant in marking out the tenement or, in the case of an exploration licence, the substance of the description of the land. The surveyor produces a report that states that the boundaries have been surveyed in accordance with the regulations, and the boundaries are in accordance with the markings.
[112]The dispute in this case turns on whether the surveyor should have located the datum peg referred to in the 1967 reservation by reference to [the Old Homestead] or [the New Homestead]. That question was logically and practically antecedent to the survey of the boundaries of [Aquila's] tenement. The surveyor was not authorised under the legislation to decide it. It appears from the reasons of the warden that someone in the Department made that decision (it is not clear by what authority) and instructed the surveyor he may use [the New Homestead] as the reference. It is not a matter that the legislation intends should be finally determined by the Minister's decision on an objection to the survey. Where such a question arises, it should be determined judicially under pt VIII of the Act, or in this court.
[113]The action in this court cannot be held to be vexatious or an abuse of the process of the court in seeking to have the question decided judicially. It is not a relitigation of issues, in the sense required, because the issues raised in the action cannot be finally determined by the administrative process under reg 120A. The fact that [Aquila] participated in the process before the warden does not affect that conclusion.
[114]The action does not become unjustifiably oppressive because the [Aquila] have concurrently exercised their right to apply for judicial review. If [Aquila] had not brought that action, or some other proceeding to restrain the Minister, the Minister would have been required by reg 120A(5) to determine the dispute or objection to the survey.
[115]Further, the issues to be decided in the judicial review application are different from those raised in the action.
[116]I am satisfied that the action is not an abuse of process. [BHP's] application will be dismissed.
[49] Primary decision [111] - [116].
BHP's grounds of appeal
BHP's grounds of appeal are to the following effect.
Ground 1
Ground 1 concerns the authority of the Surveyor to decide whether the datum peg for the Temporary Reserve was located by reference to the Old Homestead or the New Homestead. Ground 1 alleges that the judge erred in law in finding (at primary decision [111] ‑ [112]) that, in carrying out a survey of Aquila's ML, the surveyor was not authorised by the Mining Act and the Regulations to decide whether the datum peg for the Temporary Reserve was located by reference to the Old Homestead or the New Homestead, in that:
(a)the judge misconstrued the Mining Act and the Regulations by finding, in effect, that a surveyor is only required to report on whether the boundaries of the tenement being surveyed conform with the land indicated by the applicant for the tenement in marking out the tenement;
whereas
(b)the Mining Act and the Regulations, on their proper construction, required the surveyor to form an opinion as to the boundaries of any adjoining tenements that encroach upon the tenement being surveyed;
and
(c)in the circumstances of this matter, in order to form an opinion as to the boundaries of BHP's Neighbouring MLs, the Surveyor was required to form an opinion as to the location of the datum peg for the Temporary Reserve.
Ground 2
Ground 2 concerns the authority of the Minister finally to determine BHP's objection to the Survey under reg 120A. Ground 2 alleges that the judge erred in law in finding (at primary decision [112]) that, whether the datum peg for the Temporary Reserve was located by reference to the Old Homestead or the New Homestead, was not a matter the Mining Act and Regulations intend should be finally determined by the Minister's decision on BHP's objection to the survey under reg 120A. In that regard:
(a)the Mining Act and the Regulations, on their proper construction, provide that in determining an objection the Minister can decide whether the boundaries of the surveyed tenement have been correctly reported by the surveyor, which in this case requires the Minister to decide whether the datum peg for the Temporary Reserve was located by reference to the Old Homestead or the New Homestead; and
(b)the determination of the Minister will be final and binding between the parties including as to whether the datum peg for the Temporary Reserve was located by reference to the Old Homestead or the New Homestead.
Ground 3
Ground 3 alleges that the judge erred in law in finding (at primary decision [113]) that the declaratory proceedings could not be vexatious and an abuse of the process of the court by seeking to have the question of whether the datum peg for the Temporary Reserve was located by reference to the Old Homestead or the New Homestead judicially determined under pt VIII of the Mining Act or by the Supreme Court, in that:
(a)for the reasons the subject of grounds 1 and 2, the declaratory proceedings could be vexatious and an abuse of the process of the court; and
(b)in the circumstances, the declaratory proceedings were vexatious and an abuse of the process of the court.
Ground 4
Ground 4 alleges that, further or alternatively to ground 3, the judge erred in law in finding (at primary decision [114] ‑ [115]) that the declaratory proceedings are not unjustifiably oppressive to BHP by reason that Aquila has commenced the judicial review proceedings, in that:
(a)for the reasons the subject of grounds 1 and 2, the Minister is required by reg 120A to determine the objection to the survey including the issue of whether the datum peg for the Temporary Reserve was located by reference to the Old Homestead or the New Homestead; and
(b)in the circumstances where Aquila has sought judicial review of the Warden's recommendation which the Minister must take into account in making the Minister's determination, the declaratory proceedings are unjustifiably oppressive to BHP and an abuse of the process of the court.
Summary of appellant's case
The details of BHP's submissions are set out in [64] ‑ [89] below. It is convenient, before turning to the detail, to provide an overview of BHP's case.
As explained in oral submissions, BHP's case was essentially along the following lines:
1.The dispute between the parties concerned the scope of the grant of BHP's Neighbouring MLs. That was dependent upon the scope of BHP's EL.[50] It was common ground that the scope of BHP's EL was co‑extensive with the scope of the Temporary Reserve.[51] Thus, the dispute between the parties ultimately turned upon the proper construction of the documents creating the Temporary Reserve.[52]
[50] Appeal ts 7 - 8, 38 - 39, 42.
[51] Appeal ts 7, 50.
[52] Appeal ts 5 - 6, 18 - 21.
2.The Survey brought about the 'crystallisation' of this dispute.[53]
[53] Appeal ts 9 - 10, 28, 62.
3.A dispute as to the scope of BHP's Neighbouring MLs, turning as it did ultimately on the proper construction of the documents creating the Temporary Reserve,[54] was a justiciable issue which could be determined by (1) the Supreme Court or (2) the Wardens Court.
[54] Appeal ts 21, 53.
4.However, a judicial determination by the Supreme Court or the Wardens Court were not the only avenues available for the resolution of the dispute. That is because, on the proper construction of the Mining Act and Regulations, there is a concurrent jurisdiction, judicial in nature, given to the Minister finally to determine the proper construction of the Temporary Reserve.[55]
[55] Appeal ts 5 - 6, 8, 18 - 21, 53.
5.The concurrent jurisdiction of the Minister to determine the proper construction of the documents creating the Temporary Reserve arises on a proper construction of the Mining Act and Regulations in its application to the circumstances of this case, in that:
(a)A survey, although not determinative of the scope of the grant of a mining lease, will be prima facie evidence of the scope of the grant as a lease instrument will be issued referring to the survey diagram.[56]
[56] Appeal ts 6, 8, 33 - 34, 57 - 58, 60 - 61.
(b)The Surveyor's functions include determining boundaries and thereby include determining areas which are excluded from the tenement being surveyed - which required the Surveyor, in the circumstances of this case, to determine, or form an opinion as to, the scope of the Temporary Reserve on its proper construction.[57]
[57] Appeal ts 10 - 12, 40 - 41, 45, 56.
(c)The Survey is amenable to a procedure for objections under Regulation 120A.[58]
[58] Appeal ts 9, 50 -51, 59.
(d)The objection process involves the Warden (albeit administratively) using the Warden's expertise to make findings of fact and law and making a recommendation to the Minister.[59]
[59] Appeal ts 26 - 27, 28, 59.
(e)The Minister, with the benefit of the Warden's findings and recommendation, is the person appointed to 'determine the … objection' arising from the carrying out of the Survey under Regulation 120A(5), which, in this case, ultimately involved the proper construction of the documents creating the Temporary Reserve.[60]
[60] Appeal ts 9, 11 - 12, 18 - 19, 54 - 55, 59.
(f)The Minister is not conducting a 'review' of the Warden's decision and recommendation. Rather, the Minister determines the objector's objection afresh or de novo. Thus, the Minister's powers would include the power to receive evidence from the parties, including evidence from witnesses called by the parties.[61]
(g)The Minister, in his or her determination, makes a final determination as to the proper construction of the documents creating the Temporary Reserve. The Minister acts judicially and in an adjudicative role. The Minister does not bring to bear any discretionary or policy considerations upon the determination of the objection. The Minister is solely concerned with the legal meaning and effect of the documents creating the Temporary Reserve. The Minister's final determination creates issue or cause of action estoppels.[62]
6.The commencement of the declaratory proceedings in parallel with the survey objection process - a process which would itself lead to a final determination by the Minister - is an abuse of process by Aquila.
7.Alternatively, even if the Minister's decision is not, by its nature, final so as to create res judicata estoppels, the declaratory proceedings are still an abuse of process. That is because:[63]
(a)there is a commonality, or at least significant overlap, between the issues in the declaratory proceedings and the issues in the survey objection process;
(b)the survey objection process has been on foot for some time and is well advanced;
(c)the parties have outlaid considerable expenditure in following the survey objection process; and
(d)in the process before the Warden, Aquila resisted BHP's attempt to have the issues determined in judicial proceedings in the Warden's Court, and Aquila has thereby in effect been guilty of reprobating and approbating.
[61] Appeal ts 65 - 66.
[62] Appeal ts 3 - 4, 6, 21 - 23, 27, 59 - 60.
[63] Appeal ts 72 - 77.
Parties' submissions
BHP's submissions
BHP's submissions were to the following effect.
Ground 1 - functions of the Surveyor
In the case of a mining lease such as Aquila's ML, s 74(1)(a) of the Mining Act requires the application to be in the prescribed form, and s 105(1) requires the application to be marked out in the prescribed manner and shape. Those matters are prescribed in Regulations including reg 24 and in pt V. Within pt V, reg 59 requires land in respect of which a person is seeking a mining tenement to be marked out in the manner set out in regs 59 ‑ 61. That includes, pursuant to reg 59(1)(c), attaching Form 20 to the datum post. Regulation 64 requires an application to be made in the form of Form 21. Regulation 66 requires the application to include a description of the boundaries (identical to that in Form 20) by reference to an existing survey mark, a prominent ground feature shown on public plans or coordinates. Failure to mark out properly is an irregularity which can lead to the tenement application being refused.[64] A mining lease may be granted without express delineation of the boundaries: s 71 and s 79 of the Mining Act.
[64] Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234.
Whilst, BHP submitted, there has been some controversy over whether the grant of a mining lease is by reference to the written description in the application or the 'pegs in the ground',[65] the better view, BHP submitted, is that the grant conforms to the written description.[66] Marking out serves the purposes of establishing priority (s 105A) and putting others on notice of an application for a mining tenement so that, eg, they can object (eg, under s 75). After grant, marking out continues to serve the purpose of identifying the tenement boundaries 'on the ground' pending a survey: s 73(2) of the Mining Act, and regs 71 ‑ 73 of the Regulations. Marking out cannot be definitive as to the boundaries because (1) the physical marks may only be temporary, (2) it may not be precise (reg 59(1)(a)(i) and reg 59(1)(b)), and (3) it may depart from the written description in the application in respect of which the Minister made the grant, and the (unknown to the Minister) actions of the tenement applicant in placing the pegs on the ground cannot define the intention of the Minister at the time of grant. However, 'pegs in the ground' may be considered by the surveyor insofar as the written description may be ambiguous.
[65] BHP referred, on the one hand, to Campbell v Knightsbridge Holdings Pty Ltd [1986] WASC 321, 24, 26, 32 ‑ 33; Atkins v Minister for Mines (1996) 15 WAR 226, 232 ‑ 235, and on the other hand to Re Minister for Minerals & Energy; Ex parte McKenna (1989) 2 WAR 401, 413 ‑ 414; Consolidated Gold Mining Areas NL v Oresearch NL (1990) 3 WAR 208, 214.
[66] Westdeen Holdings Pty Ltd v Haggarty (unreported, Warden's Court, 7 August 1998), 22 ‑ 27.
What is uncontroversial is that some parts of a mining lease application may not have been granted as a matter of law, but precisely where that applies may not be known at the time of grant: s 105B and s 117 of the Mining Act.[67] Delineation of boundaries, including areas which were not available to be included in the grant, may come from a survey after grant: s 80, s 82(1)(ba) and s 116(1) of the Mining Act, and pt VI, reg 26 and the second schedule to Form 8 of the Regulations.[68] It is also possible to do or rely on a survey before grant which supplants the usual marking out requirements: reg 51(1)(a)(ii), reg 51(3), reg 61, reg 188(1)(b), reg 118A(1)(a), reg 119(1) and reg 120(2) of the Regulations.
[67] See also Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134 [13], [42] ‑ [50]; McKenna (414); Atkins (236 ‑ 238).
[68] Atkins (236, 237, 238).
Hence, a surveyor both marks the proper boundaries by inserting pegs in the ground, and provides the Department with a report (Form 44) which includes a survey diagram. The survey diagram is then referred to in the lease instrument (Form 8).
In order to delineate the precise boundaries, a surveyor must have regard to the written description (which, in this case, in relation to Aquila's EL from which Aquila's ML derives, expressly excluded the land the subject of BHP's EL). The surveyor may need to (1) have regard to physical marking out if there was some ambiguity in a written description, eg, if it is by reference to a ground feature, (2) adjust boundaries to conform to the prescribed shape (reg 120(1)(a)(ii)), and (3) excise an area that was not open for application or grant. In relation to the third of those matters, if the excision arises from an adjoining, unsurveyed, existing tenement, the surveyor cannot perform the task without forming an opinion as to that tenement's boundary to the extent necessary. Indeed, Direction 6(b)(ii) requires a surveyor to inform the Department of the location of the boundaries of any holdings protected by the conditions to which the tenement surveyed is subject, or by s 117 of the Mining Act.
Regulation 120(1)(a), in context, directs the surveyor to adjust the boundaries indicated by the tenement applicant's pegs and trenches, so as to conform with the true boundaries, having regard to the whole marking out process, including the written description and the requirements of the Mining Act.
Form 44 requires the surveyor to cite a 'field book number' and state whether the surveyor had 'surveyed the tenement boundaries in accordance with the [R]egulations'. That should be taken to include the Directions which require the Department to compile survey instructions, and which refer to field books: Direction 4 and Direction 25. In this case, the Department directed the Survey be conducted and issued instructions (summarised in [32] above).
The statutory scheme does not contemplate a surveyor simply locating the pegs and trenches erected by the applicant for the tenement as part of the application. The primary judge, at [111] ‑ [112], misconstrued the function of a surveyor under the statutory scheme by (1) construing the role of the surveyor as ascertaining physical marking out, rather than following the tenement description, and (2) failing to recognise the role of the surveyor included determining areas excluded from the tenement being surveyed.
In this case, the Surveyor was required to form an opinion as to the location of the datum peg for the Temporary Reserve in order to comply with the statutory scheme. The Surveyor was also required to do so by reason of regs 120(3) and (4) and his instructions from the Department. Whilst the judge correctly said that the Surveyor could not decide, in the sense of making a final and binding determination, whether the datum peg for the Temporary Reserve was by reference to the Old Homestead or the New Homestead, the judge was wrong to find that the Surveyor should not have formed an opinion on that issue, and surveyed Aquila's ML accordingly. BHP, as adjoining tenement holders, then had the opportunity to object under reg 120A, and have the issue determined by the Minister following a hearing and recommendation by the Warden - see ground 2.
Ground 2 - the Minister's decision
Regulation 116 defines a mining survey as a survey in respect of the boundaries of the area of land to which a tenement relates. Regulation 118A requires notice to the holder of the tenement to be surveyed, as well as to the holder of any adjoining tenement. Both must be given the result of the survey, and either may then lodge an objection to the survey (regs 120A(3) and (3a)). Form 16 requires particulars of the matter objected to and the grounds for objection. The objection is then heard by the Warden, whose recommendation is provided to the Minister who must 'determine' the objection (regs 120A(4) and (5)).
If there are substantive questions of fact and law as to the boundaries of the tenement being surveyed and/or of an adjoining tenement, the hearing before the Warden 'is an appropriate forum to have them aired and considered'. This may be compared with a dispute during a survey, which is reported by the surveyor to the Director. In such a case, the dispute is then dealt with by the Director, the Warden and the Minister, with no necessary involvement of the tenement holders (regs 120A(1)(a), (2), (4) and (5)).
As Westdeen indicates, in hearing an objection under reg 120A, the Warden could consider, amongst other things, the location of the boundaries of the adjoining tenements. If it was part of the Surveyor's function to determine the true boundaries of Aquila's ML, then it is part of the Warden's function, and consequently the Minister's function, to determine an objection made by BHP as adjoining tenement holders on the grounds that the Surveyor had wrongly surveyed the boundary of Aquila's ML because, in turn, the Surveyor had wrongly identified the datum peg of the Temporary Reserve. Further, even if the Surveyor's function was limited to ascertaining boundaries as marked out, the function of the Warden and Minister under reg 120A remains to determine an objection to whatever the survey has surveyed as the boundary.
Further, whatever the Surveyor's function, the judge's finding as to the role of the Warden and the Minister is productive of uncertainty - something not intended for by Parliament.[69] BHP gave the example of a surveyor who overlooked the fact that there was an adjoining tenement with priority. BHP submitted that if that were not something that could be the subject of an objection under reg 120A, the survey would stand, a mining lease instrument might be issued, and unless the until the adjoining tenement holder obtained clarity or other relief from the Warden's Court or the Supreme Court, the adjoining tenement holder would be unable to exercise its right to mine, at least not without being at risk of civil or criminal liability for illegal mining. Whilst the same may be said if an objection is lodged under reg 120A, it is to be expected that the Minister would not issue an instrument of lease reflecting the results of a survey in circumstances where the survey was objected to under reg 120A.
[69] Regional Director of Education, Metropolitan East, Department of Education NSW v International Grammar School Sydney Ltd (1986) 7 NSWLR 302, 314.
Similar issues would arise if, for example, the surveyor misunderstood the shape of the adjoining tenement, or overlooked a partial surrender of an adjoining tenement. Seemingly, on the judge's construction, the above examples could not constitute a valid objection, with the result that the process under reg 120A would have very limited utility.
The fact that the Warden's Court is expressly conferred with jurisdiction to determine disputes about boundaries is not a reason to read down reg 120A in the way that the primary judge did. A plaint in the Warden's Court can be brought whether or not there has been a survey. Hence, there is a partial overlap between, on the one hand, the jurisdiction of the Warden and the Minister under reg 120A, and, on the other, the jurisdiction of the Warden's Court (and indeed the Supreme Court). Even on the judge's view, there could be an objection under reg 120A on the grounds that the survey does not follow the marking out of the tenement, and that, too, could form the basis of a plaint in the Warden's Court regarding the boundaries of a tenement.
In this case, the Warden recommended that the Minister direct that the boundaries of Aquila's ML be delineated on the basis that it is not to include land that was formerly the subject of the Temporary Reserve as delineated by reference to the Old Homestead. In accepting or rejecting the Survey, having regard to the Warden's recommendation, the Minister will make a final and binding determination of the proper boundary of Aquila's ML, including as to the datum peg of the Temporary Reserve. Final and binding in this sense has the meaning given to that concept in the operation of the doctrines of res judicata or issue estoppel and abuse of process. BHP submits that, for the purposes of ground 2, the Minister's determination under reg 120A may give rise to res judicata or issue estoppel as between Aquila and BHP concerning the proper boundary of Aquila's ML, including the datum peg of the Temporary Reserve.
In that regard, the fact that the process under reg 120A does not result in a decision of a court does not preclude the application of the doctrine of abuse of process. Proceedings in a tribunal that is not a court can give rise to res judicata or issue estoppel.[70]
[70] Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208; (2020) 56 WAR 263 [202], [345]; The Administration of the Territory of Papua and New Guinea v Guba [1973] HCA 59; (1973) 130 CLR 353, 453.
Under reg 120A, there is a process by which a tenement holder whose tenement is to be surveyed, and an adjoining tenement holder, are notified of the result of the survey, and either may lodge an objection. The objection 'shall be heard by the Warden' and the Warden's recommendation must be forwarded to the Minister 'who must determine the objection'. That language is consistent with the Minister making a 'judicial decision' in accordance with Chang and Guba. While the Mining Act and Regulations do not apply the rules of evidence or provide for discovery or subpoena in a hearing before the Warden, there is nothing which displaces the rules of procedural fairness. The hearing before the Warden 'affords the parties a fulsome opportunity to present their cases, similarly to a hearing in a court or tribunal'.
Further, the scheme under the Mining Act is that the Minister grants a mining lease notwithstanding that the precise boundaries of the lease may not be known. Once a survey has been undertaken and the survey result is either not the subject of an objection, or is the subject of an objection which is determined by the Minister, then the Minister may issue an instrument of lease which describes the boundaries by reference to the survey diagram. That instrument of lease is then evidence not just of the tenement holder's title, but also as to the boundaries of the tenement. The determination of the boundary is not a matter of administrative discretion, as is the grant itself, but, rather, is a matter of law: Atkins.
There is an overlap between the jurisdiction of the Minister under reg 120A and the jurisdiction of the Warden's Court regarding boundaries of tenements. It is unlikely that Parliament would have intended that, notwithstanding an objection was determined by the Minister under reg 120A, the parties could then commence a plaint in the Warden's Court regarding exactly the same issue. That is particularly so as the process under reg 120A already involved a hearing before the Warden, albeit sitting administratively.
Ground 3
BHP contended that if the Minister's decision will be final and binding, then it is an abuse of process (1) for Aquila to require BHP to relitigate issues in the declaratory proceedings which have already been litigated before the Warden, and (2) because it is contrary to the administration of justice to treat the process under reg 120A as a 'dry run'.[71]
[71] Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334, 347 ‑ 349.
BHP also contended that even if (contrary to ground 2) a determination of the Minister will not be final in the sense of giving rise to an issue estoppel, then the declaratory proceedings are still an abuse of process. That is because BHP had sought to have the issue of the boundary between the parties' tenements determined by the Warden's Court acting judicially, and Aquila had opposed that course. It was only once the Warden, acting under reg 120A, made a recommendation that was contrary to the case presented by Aquila that Aquila then sought to commence the declaratory proceedings in order to obtain contrary declarations.
If the declaratory proceedings are permitted to continue, the time and resources of the Warden will have been wasted. The authorities recognise that as a general rule and in the absence of some special reason for intervention by the Supreme Court, special procedures laid down by a statute should be allowed to take their course and should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute.[72]
[72] Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, 427 ‑ 428, 436, 439; Noosa Shire Council v TM Burke Estates Pty Ltd [2000] 1 Qd R 398 [11], [17], [20].
Whilst the Minister is yet to make a determination under reg 120A, it is clear from the authorities that an abuse of process can arise in circumstances where earlier proceedings have been commenced but have not yet been finalised, and in circumstances where proceedings can be brought in more than one forum.[73]
[73] Pilbara Iron Ore Pty Ltd v Ammon [2008] WASC 108; Moore v Inglis (1976) 9 ALR 509.
The declaratory proceedings are not saved from being an abuse of process by reason that the recommendation of the Warden concerns, and any subsequent decision of the Minister will concern, the boundaries of Aquila's ML, whereas Aquila is seeking a declaration as at to the boundaries of various tenements, including the Temporary Reserve and Aquila's EL. The boundaries of Aquila's ML cannot be determined without determining the boundaries of the Temporary Reserve. In any event, the doctrine of abuse of process turns on matters of substance and not form.
Ground 4
BHP submitted that the judicial review proceedings of themselves result in the declaratory proceedings being an abuse of process because:
1.The judicial review application relates to the reg 120A process. If successful, the Warden's existing recommendation will be set aside and the Warden will be required to conduct a further hearing and make a new recommendation, which the Minister will then need to consider before making a determination of the objection.
2.At the same time, Aquila is asking the court to make a declaration as to the boundaries of various tenements, including the Temporary Reserve. For the reasons indicated earlier, that is the same issue which is the subject of the processes under reg 120A.
3.It is an abuse of process to pursue two proceedings at the same time in relation to essentially the same issue.[74]
4.The abuse is not avoided by adjourning one proceeding pending the outcome of the other. If the declaratory proceedings are heard first and a declaration is made, that does not relieve the Minister of the statutory duty to consider the Warden's recommendation (either the existing recommendation or any new recommendation if the existing one is set aside as a result of the judicial review proceedings) and make a determination of the objection. If the judicial review application is heard first and the Warden's recommendation is set aside, Aquila will retain the ability to seek a declaration which may be contrary to any new recommendation of the Warden and any decision of the Minister.
Aquila's submissions
[74] Ammon; Inglis; Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130 [97(9) ‑ (12)].
In general terms, Aquila submitted that the judge was correct for the reasons given by his Honour.
The statutory regime - grants
The principal provisions relevantly for present purposes in relation to grants are as follows.
Tenements
Under s 8 of the Mining Act, 'mining tenement' is defined to include, amongst other things, an exploration licence and mining lease granted or acquired under the Mining Act or by virtue of the repealed Act, and includes the specified piece of land in respect of which the mining tenement is so granted or acquired.
Section 18 provides:
All Crown land, not being Crown land that is the subject of a mining tenement, is open for mining and as such is land -
(a)where any person may set up pegs or otherwise mark out the land pursuant to section 104 in connection with an application for a mining tenement; and
(b)where the holder of a miner’s right may do the things authorised by section 40D; and
(c)which may be made the subject of an application for a mining tenement,
subject to and in accordance with this Act. (emphasis added)
Exploration licences
By s 58(2a), on an application for an exploration licence or on an exploration licence being granted, the land affected is not thereby required to be surveyed, but where a dispute arises with respect to the position of the land or the boundaries or any boundary thereof the warden or Minister may require a survey to be made of the boundaries in order to settle the dispute.
By s 66, an exploration licence, whilst it remains in force, authorises the holder to enter and re‑enter the land the subject of the licence to carry out exploration work.
By s 67(1), the holder of an exploration licence has, subject to the Mining Act and to any conditions to which the exploration licence is subject and whilst the exploration licence continues in force, the right to apply for, and subject to s 75(9) to have granted pursuant to s 75(7), one or more mining leases in respect of any part or parts of the land the subject of the exploration licence.
Mining leases
Section 71 provides:
Subject to this Act, the Minister may, on the application of any person, after receiving a recommendation of the mining registrar or the warden in accordance with section 75, grant to the person a lease to be known as a mining lease on such terms and conditions as the Minister considers reasonable.
Section 74(4) provides that an application for a mining lease 'shall be made by reference to a written description of the area of the land in respect of which the lease is sought, and be accompanied by a map on which are clearly delineated the boundaries of that area'.
Section 76 provides, relevantly, that where an application for a mining lease includes any portion of land included in a current mining tenement held by a person other than the applicant, any mining lease granted on the application shall not include any such portion of land.
By s 79 of the Mining Act:
(1)Where a person has applied for a mining lease and has been notified in writing by or on behalf of the Minister that the Minister has granted the mining lease to which the application relates, the applicant shall be deemed to be the holder of the lease comprising the land in respect of which the lease is granted as from the date of the written notification.
(2)Where a written notification is given under subsection (1) the term of the lease shall commence from the date of the written notification. (emphasis added)
By s 80(1), land the subject of a mining lease shall be surveyed, but it shall not be necessary for the survey to be carried out prior to the granting of the lease.
By s 82(1)(ba), every mining lease is granted subject to the condition that the lessee will arrange and pay for a 'survey' within the prescribed time and in the prescribed manner.
The word 'survey' is not defined in the Mining Act. It bears the ordinary meaning of 'survey',[75] which is:
to determine the form, boundaries, position, extent, etc, of, as a part of the earth's surface, by linear and angular measurements and the application of the principles of geometry and trigonometry.
[75] Macquarie Dictionary (Online Version).
Section 83(1) provides that every mining lease shall be dated as of the day of the notification by the Minister under s 79, and shall be executed by the Minister.
By s 105(1), before an application for, relevantly, a mining lease is made, the land in relation to which the mining lease is sought 'shall be marked out in the prescribed manner and in the prescribed shape'.
By s 105A(1), subject to s 111A, where more than one application is received for a mining tenement (other than a miscellaneous licence) in respect of the same land or any part of the same land, the applicant who first complies with the initial requirement in relation to his application has, subject to the Mining Act, the right in priority over other applicants to obtain the grant of the tenement.
By s 105B, the grant of a mining tenement 'shall be deemed to have been made subject to a condition that the land applied for is found to have been available for the purposes of that grant after a survey has been made of the tenement'.
Instrument of lease
By s 116(1), the holder of a mining lease granted pursuant to the Mining Act is entitled, on the payment of the prescribed fee, to obtain a copy of the lease in the form prescribed.[76]
Mining tenements protected
[76] As to the form prescribed, see reg 26 and prescribed Form 8.
By s 117(1), subject to certain exceptions not material for present purposes, no grant of any mining tenement has the effect of revoking or injuriously affecting any existing mining tenement acquired and held under the Mining Act.
Statutory regime - the Warden's Court
2007 Amendments
Part VIII of the Mining Act is headed 'Administration of justice', and includes s 127 ‑ s 151.
Part VIII of the Mining Act was extensively amended in a suite of amendments effected by the Mining Amendment Act 2004 (WA). There were related amendments to the Regulations pursuant to the Mining Amendment Regulations 2007 (WA). These amendments (collectively, 2007 Amendments) became law on 31 March 2007.
In the second reading speech for the Bill for the Mining Amendment Act 2004 (WA), the then Minister said:[77]
Another important issue that this Bill addresses is the separation of the different roles and powers of the Mining Warden as distinct from the Warden's Court. To date, the current inconsistent terminology in the Mining Act has not provided the clarity that these amendments will achieve.
…
Passage of the Bill will … bring about overdue changes to clarify the separate roles of the wardens and the Warden's Court.
[77] Hansard Legislative Assembly 26 August 2004, pages 5728 - 5730.
Since the 2007 Amendments, the provisions of pt VIII read as follows.
Warden's Court
By s 127(1), the Governor may, by Order in Council, establish Wardens' Courts at such places in the State as he thinks necessary. By s 128, each Warden's Court shall be a court of record.
Section 132 includes:
(1)A warden's court has jurisdiction to hear and determine all such actions, suits and other proceedings cognisable by any court of civil jurisdiction as arise in respect of -
(a)the area, dimensions, or boundaries of mining tenements;
(b)the title to, and ownership or possession of, mining tenements or mining products;
…
(d)trespass or encroachment upon, or injuries to, mining tenements;
…
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 includes:
(1)A warden's court has power to make orders on all matters within its jurisdiction, for -
…
(e)the determination of the area, extent, dimensions or boundaries of any mining tenement or as to the respective rights of the owner of the primary tenement and the special prospecting licence or mining lease for gold granted in relation to that tenement pursuant to section 56A, 70 or 85B[.]
…
(3)A warden's court at any stage of any proceedings pending therein may, of its own motion, or on the application of any party to those proceedings, order -
…
(h)the measurement or survey of any land or mining tenement or part thereof, and the making of plans and drawings thereof by any person duly qualified for the particular purpose[.]
By s 147(1), subject to limited and presently immaterial exceptions, any party aggrieved by a decision of the Warden's Court may appeal to the Supreme Court. By s 147(6), a notice of appeal does not operate as a stay, but the Warden's Court may grant a stay or an injunction as it thinks necessary in the circumstances.
The statutory regime - surveys and boundaries
As noted earlier, a number of provisions of the Mining Act refer to surveys, including s 58(2a), s 80(1), s 82(1)(ba) and s 105B. The Mining Act also includes the power to make regulations in relation to the surveying of mining tenements.
Power to make regulations
By s 162(1), the Governor may make such regulations as are contemplated by the Mining Act or as he deems necessary or expedient for the purposes of the Mining Act, and such regulations may confer upon a prescribed person or body specified in the regulations a discretionary authority.
Section 162(2)(ka) provides:
(2)Without limiting the generality of the powers conferred by subsection (1) those regulations may -
…
(ka)provide for any matter relating to the surveying of mining tenements,[78] including -
(i)requiring that surveying to be carried out by a surveyor (in this paragraph referred to as the approved surveyor) approved by the Minister or an officer of the Department in accordance with any specified written law, any instructions given by an officer of the Department, a warden or the Minister or any direction published by the Department, or any 2 or all 3 of the foregoing;
(ii)the course to be adopted by the approved surveyor if he finds that a mining tenement or application therefor is not marked out in the prescribed shape referred to in section 105;
(iii)the hearing by the warden of disputes arising during the course of that surveying concerning the positions of pegs or otherwise, or of objections to the survey of a mining tenement or of land the subject of an application for a mining tenement, prescribing fees for the lodgment of notices relating to those disputes or objections, and the determination by the Minister of those disputes or objections;
(iv)the correction of errors or omissions in that surveying and the completion of surveying that is uncompleted;
(v)the lodging of reports relating to surveys;
(vi)the entry on land by officers of the Department for the purpose of inspecting surveys[.] (emphasis added)
[78] Section 162(2)(ka) was inserted by Mining Amendment Act 1985 (100 of 1985, s 109). Although the paragraph has since been amended, the 1985 amendment appears to be the occasion when the Mining Act specifically authorised regulations giving the Minister the power to determine disputes or objections relating to surveying of mining tenements.
Section 162(2)(ka) was also amended as part of the 2007 Amendments. Prior to the 2007 Amendments, s 162(2)(ka) was in identical terms to the above, save that in the first line of s 162(2)(ka)(iii) the reference to the 'warden' in s 162(2)(ka)(iii) was a reference to the 'warden's court'.
The Regulations
Mining leases
By reg 24, an applicant for a mining lease shall comply with the regulations in pt V as to marking out and applying for the lease.
By reg 26, the instrument of lease for a mining lease shall be in the form of Form 8. The prescribed instrument of lease for a mining lease, Form 8, in sch 2, provides for a 'Description of Land' which includes reference to 'Being the land delineated on Survey Diagram No … and recorded in the Department'.
Marking out
Part V div 1 of the Regulations provides generally for the marking out of mining tenements. Regulation 59 prescribes the manner of marking out tenements, including, in effect, fixing a post in each corner, digging two trenches or placing two rows of stones from each post in the general direction of the boundary lines, and 'fixing firmly to one of the posts as the datum post, notice of marking out in the form of Form 20' (reg 59(1)(c)). Form 20 is headed 'Notice of Marking Out', and confirms that the notice is to be fixed to the datum post to complete marking out. Form 20 requires, amongst other things, a description of the tenement and a 'description of the ground being applied for', the description of which is to be identical to that included in the Form 21 application.
Regulation 61 provides specifically for how land, the boundaries of which are identical with surveyed land, must be marked out. It requires the fixing of a datum post to which the notice of marking out in Form 20 is affixed.
Section 105B, read in that context, and in the context of s 76 and s 117(1), contemplates that the boundaries delineated administratively by the survey may reveal whether and to what extent any of the land applied for in the application for grant was unavailable for grant. The effect of s 105B is that there is deemed to be a condition in the grant that any land not available for grant under the Mining Act is itself excluded from the grant.[89] The reference to 'survey' in s 105B is to an administrative process within a scheme designed to enable the formal instrument of lease between the Minister and the leaseholder[90] to reflect the true scope of the grant. There is nothing in s 105B by its terms or in its context which signifies that a survey controls or determines the true scope and legal effect of a grant of a mining lease under s 71 of the Mining Act. Section 105B does not contemplate the surveyor resolving any dispute as to the true meaning and effect of the grant. The word 'after' in s 105B reflects the temporal aspect of s 80(1). The Mining Act does not determine the rights of holders of tenements by reference to a surveyed plan.
[89] Atkins (238).
[90] Section 116(1); reg 26; Form 8.
Section 162(2)(ka) operates within this context. It empowers the Governor to make regulations 'to provide for any matter relating to the surveying of mining tenements', with the word 'survey' having the meaning referred to earlier. The words 'relating to' are of wide and general import, although their intended width is ultimately dependent upon the context in which the words are used.[91]
[91] Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 36 FCR 367, 371, 374, 383.
When 'survey' is given its ordinary meaning, s 162(2)(ka) empowers the Governor to make regulations providing for any matter 'relating to' the administrative process concerning determination of the form, boundaries, position, extent, etc, of the mining tenement, as part of the earth's surface, by linear and angular measurements and the application of the principles of geometry and trigonometry. The word 'surveying' in the opening line of subpar (ka) of s 162(2), and elsewhere in the provisions of s 162(2)(ka) including s 162(2)(ka)(iii), has a cognate meaning.
When s 162(2)(ka)(iii) is read as a whole, within s 162(2)(ka) read as a whole, and within the broader context of the provisions referred to in [148] ‑ [152] above, it is apparent that a 'matter relating to' the administrative task of 'surveying' (as that term is understood in its ordinary meaning) does not include the conferral of jurisdiction on a member of the executive branch of government finally to determine a justiciable controversy as to the true meaning and effect, and scope, of the grant of a mining tenement. That is confirmed by the following further observations.
Section 162(2)(ka) is to be read in the broader context of the Mining Act as a whole, including pt VIII. The Warden's Court, under pt VIII of the Mining Act, exercises a judicial function.[92] By s 132(1) of the Mining Act, the Warden's Court has 'jurisdiction' to 'hear and determine' disputes as to the scope and legal effect of mining tenements, including, in the present case, where that scope or legal effect turns on the meaning and effect of the documents creating the Temporary Reserve. The statutory jurisdiction of the Warden's Court is concurrent with the Supreme Court's jurisdiction,[93] although it may be an abuse of process for a person to commence proceedings in the Supreme Court for the determination of a dispute which is already being litigated in judicial proceedings in the Warden's Court.[94]
[92] Re Calder [8]; Global Doctor Ltd v Hodgkinson [2003] WASCA 119; (2003) 28 WAR 286 [40].
[93] Re Calder [32] - [33].
[94] Pilbara Iron Ore Pty Ltd v Ammon [2008] WASC 108.
As noted earlier ([111] above), pt VIII of the Mining Act was extensively amended as part of the 2007 Amendments designed to address the separation of the different roles and powers of the mining Warden from those of the Warden's Court. Section 162(2)(ka)(iii) was also amended as part of those amendments (see [121] above). The effect of this amendment was to enable regulations to be made relating to (1) the 'hearing' by the Warden, acting in his administrative role, of objections to the exercise of the administrative function of surveying, and (conformably with that process) (2) the 'determination' by the Minister of such objections. Prior to the amendment, s 162(2)(ka)(iii) on its face contemplated that the Minister would 'determine' a dispute or objection, the 'hearing' of which was committed to the Warden's Court in curial proceedings.
The 2007 Amendment to s 162(2)(ka)(iii), the specific and elaborate conferral of jurisdiction on the Warden's Court in pt VIII of the Mining Act, the nature of the subject matter posited for determination (a justiciable controversy) and the importance of the proper determination of the scope of mining tenements for the efficient operation of the Mining Act as a whole, point strongly against BHP's construction.
In our view, and with proper regard to the width of the words 'relating to', in its statutory setting, the power to make regulations under s 162(2)(ka)(iii) does not extend to the power to confer alternative jurisdiction on the Minister to determine finally a justiciable controversy as to the true meaning and effect of a grant of a mining tenement under the Mining Act. Rather, it is concerned with the hearing (by the Warden) and determination (by the Minister) of objections of an administrative character to the performance of an administrative function.
BHP did not rely on the regulation making power in s 162(1). But what has been said about the extent of the regulation making power under s 162(2)(ka)(iii) applies with more force to the general words of s 162(1). It does not extend to allow conferral on the Minister of a jurisdiction to determine finally a justiciable controversy as to the true meaning and effect of a grant of a mining tenement under the Mining Act.
Part VI of the Regulations is headed 'Surveys' and contains regulations for surveys pursuant to the express power in s 162(2)(ka) of the Mining Act. It is to be understood and applied in the context of the proper construction of s 162(2)(ka). The Regulations cannot operate to enlarge upon the authorisation provided for in s 162(1) and s 162(2)(ka) properly construed.[95]
[95] Shanahan v Scott (1957) 96 CLR 245, 250.
Nor, in any event, is there anything in the language of reg 120 or reg 120A, read in the context of the Regulations and the Mining Act as a whole, which purports to confer such an unusual jurisdiction on the Minister. Regulation 120(1)(a), in its application to a mining lease, operates against the background of s 74(4) and s 105(1), and reg 59, reg 64, reg 66, reg 71, reg 73 and reg 92. It is unnecessary, for present purposes, to enter into the 'controversy' referred to by BHP in [65] above as to whether the grant of a mining lease is by reference to the written description in the application or merely to 'pegs in the ground'.[96] Even assuming it to be the former (as BHP contended), under reg 120A, the carrying out of a survey calls for the surveyor's expertise, skills and professional judgment in an environment in which (as with any profession) it is recognised that 'doubts, discrepancies and difficulties' may be encountered.[97]
[96] The cases are helpfully discussed in Hunt on Mining Law of Western Australia (5th ed) [11.3.3].
[97] 1961 Regulations, reg 4(1).
Regulation 120(2) assumes the known existence of an adjoining interest. It also assumes that a survey of a tenement may involve matters of judgment and degree (where, eg, topography may have changed or an adjoining tenement makes it 'necessary' or 'desirable' to vary the shape[98]) which may affect the extent of adjustment contemplated by the survey process under reg 120(1). It enjoins the surveyor to carry out the survey required under reg 120(1) 'as strictly … as the circumstances permit' in order to avoid any conflict with an adjoining tenement. The 'greatest practical accuracy' is required[99] - the task is not theoretical or even purely arithmetical in nature.
[98] Regulation 92.
[99] 1961 Regulation 5(1).
Regulation 120(3) builds on reg 120(1) and (2). It applies where, even making due allowance for any adjustment in accordance with reg 120(2), there is nevertheless an 'encroachment' on another tenement having priority in application. Where the surveyor 'finds' that the tenement being surveyed encroaches on another tenement having priority in application, the surveyor is to 'excise' from the area being surveyed the area of the 'encroachment' (reg 120(3)). The word 'find' in this context prima facie means 'learns of'[100] in the task, or in connection with the task, of carrying out the survey. Regulation 120(3) does not authorise the surveyor to 'decide' in the sense of adjudicate upon, whether or not another tenement has priority to the one being surveyed. Any excision done by the surveyor who 'finds' such an encroachment is done administratively as part of the overall administrative task of performing the survey.
[100] Macquarie Dictionary (Online Version) definition of 'find'.
Also, there is nothing in reg 120 or elsewhere in the Regulations to indicate that the surveyor is required or expected to take legal advice as to the scope of the grant of the tenement being surveyed or as to the scope of the grant of an adjoining tenement. For the purpose of complying with reg 120(3) the surveyor may seek, and obtain, information from the Director: reg 120(4). More generally, the surveyor is expected to obtain relevant surveying information from the Department[101] and to seek and comply with directions from the Director.[102]
[101] Directions 4, 25.
[102] Section 162(2)(ka)(i) of the Mining Act; reg 120(4); Direction 6(a).
By reg 120E and Form 44, the surveyor must (inter alia) report on whether (1) the holder/applicant has attended site and is satisfied with the position of the survey boundaries, (2) an adjoining tenement holder/applicant has attended site and is satisfied with the survey boundaries and (3) adjoining land tenures have been located as instructed. The surveyor must lodge the report at a mining registrar's office (reg 120E).
Regulation 120A(3a) provides, in effect, that a person served with a survey report under subreg (3) may 'lodge an objection as to the mining survey'. The persons served are the tenement holder/applicant and the adjoining tenement holder/applicant.[103] The 'objection' is to be 'lodged' at a mining registrar's office[104] in the form of Form 16, which requires grounds of objection to be set out. By subreg (4), the objection is 'heard' by the Warden. The service of the report on interested persons, the requirement for grounds, and the process of a hearing are all evidently designed to ensure procedural fairness in the administrative process.
[103] Regulation 118A(1), reg 120A(3).
[104] Definition of 'lodge' in reg 2.
By subreg (5) of reg 120A, the Warden must forward the notes of evidence and his 'recommendation' relating to the objection to the Minister. The Minister, who is responsible for the administration of the Mining Act,[105] is to 'determine' the objection. The word 'recommendation', implying as it does a value judgment, is inapt in its application to a dispute as to the proper construction of a grant - for which there can only be one correct answer at law. The notion of 'recommending' is, however, apt to give effect to the investigatory task of a Warden in connection with an administrative function such as a survey.[106]
[105] Section 10 of the Mining Act.
[106] Compare the Warden's 'filtering' role when reviewing objections to the grant of a mining lease and providing a recommendation to the Minister: Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343, 354.
Oversights and errors of the kind referred to by BHP in [76] ‑ [77] above are administrative in character and would fall within the scope of the objection procedure under reg 120A. Further, reg 120A also operates in a context where, even if there is no objection to a mining survey, errors or omissions in the survey may require correction at the request of the Director (reg 120C).
It follows from the matters referred to in [148] ‑ [169] above, that in our opinion, on the proper construction of the Mining Act and the Regulations, the procedure provided for under reg 120A is an administrative procedure for the determination of where boundaries are to be shown on a plan of survey in the event that there is an objection to a survey by an interested person under reg 118(1). The Mining Act and the Regulations do not operate to confer on the Minister, pursuant to reg 120A, an alternative, concurrent, jurisdiction (concurrent with the Supreme Court and the Warden's Court) to determine finally a justiciable controversy as to the proper construction or legal effect of the grant of a mining tenement under the Mining Act.
The conclusion that reg 120A provides for an administrative procedure is confirmed by BHP's acceptance that any determination by the Minister of an objection under reg 120A(5) which involved a misconstruction of the grant or documents creating the Temporary Reserve would be amenable to judicial review for jurisdictional error.[107] A determination infected by jurisdictional error does not, at least ordinarily, have the character of finality capable of generating res judicata estoppels.[108] The role of the Warden in the process, with the expertise to which BHP referred, is consistent with the Warden exercising an investigative function, but it does not support the conclusion that the Minister's fresh determination of the 'objection' has any requisite finality about it. The Minister's 'determination' remains a 'mere administrative decision'[109] - a circumstance consistent with the accepted characterisation of the surveying of mining tenements (see [150] above).
[107] Appeal ts 24 - 25, 55, 63 - 64.
[108] Chang [202].
[109] Guba (453).
The case is unlike Guba in which the statutory board was given the power expressly to 'decide' 'all cases of disputed ownership of land' involving specified claimants. Thus, there was an express conferral of power to 'decide' property rights. Also in Guba, the statutory board was required to give a 'decision' and there was a right of appeal to a court. Nor does the statutory scheme in this case have the features in Chang.[110]
BHP's objection
[110] Chang [163] - [173], [175] - [178], [196] - [198], [205] - [208], [347] - [352].
In this case, as the Warden in effect observed (see [36] ‑ [37] above), BHP had no objection to the Surveyor's angular and linear measurements and his application of principles of geometry and trigonometry. There was no complaint about the exercise of professional judgment by the Surveyor in carrying out the Survey. BHP's objection was, in substance, to the Surveyor having proceeded on an incorrect understanding of the true meaning and effect of the documents creating the Temporary Reserve. BHP's objection raised a justiciable controversy as to the proper construction and legal effect of the grant of Aquila's ML, which turned on the proper construction of the documents creating the Temporary Reserve.
Assuming, without deciding, that BHP's objection was an objection within the meaning of reg 120A(3), for the reasons given above the procedure provided for by reg 120A could not lead to the Minister making a final determination of the justiciable controversy between the parties. The Minister's 'determination' in these circumstances would, in point of law, be no more than an administrative determination as to where the boundary lines should be drawn on a plan of survey.
Ground 1
In substance, although not in terms, ground 1 alleges that the judge erred in failing to find that the Surveyor was bound to form an opinion as to the proper construction of the documents creating the Temporary Reserve for the purposes of the Survey. So understood, ground 1 is not established. The Surveyor was entitled to act upon the direction of the Department (see [33] above) as to the use of the New Homestead as the reference point for the boundaries of the Temporary Reserve. In any event, under the statutory scheme, any opinion formed by the Surveyor in that regard would only be for the purposes of an administrative determination as to where the boundary lines should be drawn on a plan of survey.
Ground 2
For the reasons given in [146] ‑ [174] above, any determination of BHP's objection by the Minister would not finally determine the true scope of the Temporary Reserve and, thereby (effectively), the true scope of BHP's Neighbouring MLs and Aquila's ML. Ground 2 is not established.
Ground 3
The following passage from Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2][111] sufficiently summarises, for present purposes, the relevant principles in relation to abuse of process:[112]
[111] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] [2021] WASCA 105.
[112] Mineralogy v Sino [No 2] [159] - [166].
[159]In Dow Jones & Co Inc v Gutnick, Gaudron J observed:
'The purpose of judicial power is the final determination of justiciable controversies and such controversies are not finally determined unless all issues involved in a controversy are submitted for determination or, if they are not, are treated as no longer in issue.'
[160]A plaintiff who has regularly invoked the jurisdiction of the court has a prima facie right to insist upon its exercise. Nevertheless, the common law 'favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings', and the preclusionary principles (including res judicata, issue estoppel and Anshun estoppel) all find their roots in that policy.
[161]The power of a superior court to stay its own proceedings as an abuse of process is a power to protect the integrity of its own processes. The power is, in that limited respect and to that limited extent, a power to safeguard the administration of justice. The courts must be astute to protect both litigants and the system of justice itself against abuse of process. However, the power to order a stay of proceedings on the ground that they are an abuse of process is to be exercised with caution, and only in the most exceptional or extreme cases.
[162]The doctrine of abuse of process is informed by considerations which bear upon public confidence in the administration of justice, including considerations of finality and fairness. The varied circumstances in which the use of the court's processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: (1) where the use of the court's procedures occasions unjustifiable oppression to a party, or (2) where the use serves to bring the administration of justice into disrepute.
[163]Whether conduct is properly characterised as an abuse of process of the court requires consideration of all the circumstances. In UBS, the plurality cited with approval Lord Bingham of Cornhill's explanation that the court is required to make:
'a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.'
[164]What is decisive in determining the question of abuse of process is the objective effect of the litigious conduct or continuation of the action said to constitute the abuse, and there is no requirement that this involve any moral delinquency on the part of the party undertaking the impugned conduct or continuing the action. The remedy of a stay of proceedings which are an abuse of process is not 'concerned … with the punishment of the miscreant'. Rather, the remedy of a permanent stay is 'a measure of last resort' which will only be ordered where there is no other way to protect the integrity of the system of justice administered by the court.
[165]One situation in which the potential for an abuse of process has been recognised is where the processes of a court are invoked to litigate claims that could and should have been litigated in earlier proceedings. In Tomlinson, French CJ, Bell, Gageler and Keane JJ said:
'Abuse of process … is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. …'
[166]In UBS, the plurality pointed out that it is not enough, in order to establish an abuse of process, that a claim could have been raised in the earlier proceedings; it must also be shown that the claim should have been so raised. In some circumstances where the bringing of a claim should have been litigated in the earlier proceeding, the bringing of that claim will be an abuse. (footnotes omitted) (original emphasis omitted)
Insofar as the success of ground 3 depends on the success of grounds 1 and 2, it should be dismissed for the reasons given earlier. Insofar as ground 3 rests on the matters referred to in [62.7] and [85] ‑ [86] above, the following observations may be made.
First, as indicated earlier, the Minister cannot finally determine the true construction of the documents creating the Temporary Reserve and thereby the true scope of the grant of BHP's Neighbouring ML and (correspondingly) Aquila's ML.
Secondly, even on BHP's construction, the dispute will inevitably involve a form of curial determination via judicial review of the Minister's decision.
Thirdly, whilst any proceedings for judicial review of the Minister's determination will canvass the proper construction of the documents creating the Temporary Reserve, the declaratory proceedings provide a more complete vehicle for the resolution of the parties' real dispute, in that (1) the end‑point of the dispute is more completely captured in the declaratory orders sought by Aquila (see [50] above), and (2) discovery[113] and non‑party discovery[114] are potentially available in the declaratory proceedings.
[113] Order 26 of the Rules of the Supreme Court 1971 (WA) (RSC).
[114] Order 26A(5) of the RSC.
Fourthly, whilst, for the reasons earlier, Aquila's initial contentions in response to BHP's plaint in the Warden's Court (as referred to in [41] above) proceeded on a misconstruction of the Mining Act and Regulations, in oral argument senior counsel for BHP accepted that BHP, for its part, 'took a different view before the Warden', and that there had been 'changes of position on both sides' (see [42] above).[115]
[115] Appeal ts 76.
In all the circumstances, it would not, in our view, be in the interests of justice to stay permanently the declaratory proceedings. They are proceedings for the determination of a live justiciable controversy where the parties have pursued an administrative procedure which is incapable of quelling, finally, their legal dispute and which, even on BHP's construction, will inevitably end up in a form of curial litigation. The declaratory proceedings do not, in this context, occasion unjustifiable oppression to BHP or bring the administration of justice into disrepute. The declaratory proceedings do not involve an abuse of process.
Ground 3 is not established.
Ground 4
Insofar as the judicial review proceedings already commenced by Aquila will canvass the proper construction of the documents creating the Temporary Reserve, they will cover the same or similar ground to that which is the subject of the declaratory proceedings. That may be a reason for determining Aquila's judicial review proceedings at the same time as the declaratory proceedings. However, it is not a reason for staying the declaratory proceedings, particularly in light of the third matter referred to in [181] above.
Ground 4 is not established.
Conclusion
It was common ground that BHP requires leave to appeal. The judge's decision has not been shown to be plainly wrong or attended by sufficient doubt to justify the grant of leave.[116]
[116] On the question of leave see, for example, Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374 [80].
Leave to appeal should be refused and the appeal should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JL
Associate to the Honourable Justice Murphy
14 FEBRUARY 2023
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