Commissioner of State Revenue v Abbotts Exploration Pty Ltd - [2014] WASCA 211

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: COMMISSIONER OF STATE REVENUE -v- ABBOTTS EXPLORATION PTY LTD [2014] WASCA 211

CORAM: BUSS JA
NEWNES JA
MURPHY JA

HEARD: 7 NOVEMBER 2013 & 16 APRIL 2014

DELIVERED : 14 NOVEMBER 2014

FILE NO/S: CACV 36 of 2013

BETWEEN: COMMISSIONER OF STATE REVENUE
Appellant
AND
ABBOTTS EXPLORATION PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :JUDGE T SHARP (DEPUTY PRESIDENT)
Citation  :ABBOTTS EXPLORATION PTY LTD and COMMISSIONER OF STATE REVENUE [2013] WASAT 39
File No  :DR 260 of 2012

Catchwords:

Taxes and duties - Stamp duty - Construction of the definition of 'land' in s 3 of the Duties Act 2008 (WA) - Meaning of 'an estate or interest in a mining tenement' within par (ca) of the definition of 'land' in s 3

Mining law - The concepts of an 'estate' and an 'interest', including a 'legal' or an 'equitable' estate or interest, in connection with mining tenements under the Mining Act 1978 (WA) - Construction of s 64 of the Mining Act - Construction of s 118A of the Mining Act - Interaction between s 64 and s 118A

Contract - Option to acquire an exploration licence under the Mining Act - Option exercised - Whether rights conferred by the option deed in respect of the exploration licence, during the first year of the term for which the exploration licence was granted, were 'an estate or interest in a mining tenement' within par (ca) of the definition of 'land' in s 3 of the Duties Act

Illegality - Meaning of 'otherwise dealt with' and 'dealing' in s 64 of the Mining Act - Dealing in contravention of the express prohibition in s 64(1) - Effect of contravention

Legislation:

Duties Act 2008 (WA), s 3, ch 3
Interpretation Act 1984 (WA), s 3(1), s 5, s 6, s 9, s 19
Mining Act 1978 (WA), s 8(1), s 64, s 103C, s 118A
Mining Amendment Act 1985 (WA)
Mining Amendment Act 1993 (WA)
Mining Amendment Act 1996 (WA)
Mining Amendment Act 2001 (WA)
Mining Amendment Act 2004 (WA)

Result:

Leave to amend the original grounds of appeal granted
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr S J Wright
Respondent: No appearance

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: No appearance

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

Adamson v Hayes [1973] HCA 6; (1973) 130 CLR 276
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101
Associated Alloys v ACN 001 452 106 Pty Ltd [2000] HCA 25; (2000) 202 CLR 588
Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2007] HCA 38; (2007) 232 CLR 1
Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604
Ballas v Theophilos [No 2] [1957] HCA 90; (1957) 98 CLR 193
Barron (Inspector of Taxes) v Littman [1953] AC 96
Betella v O'Leary [2001] WASCA 266
Black v Garnock [2007] HCA 31; (2007) 230 CLR 438
Booker Industries Pty Ltd v Wilson Parking (QLD) Pty Ltd [1982] HCA 53; (1982) 149 CLR 600
Booth v The Commissioner of Taxation of the Commonwealth of Australia [1987] HCA 61; (1987) 164 CLR 159
Braham v Walker [1961] HCA 7; (1961) 104 CLR 366
Brown v Brook [1971] HCA 30; (1971) 125 CLR 275
Brown v Heffer [1967] HCA 40; (1967) 116 CLR 344
Burns Philp Trustee Co Ltd v Viney [1981] 2 NSWLR 216
Butts v O'Dwyer [1952] HCA 74; (1952) 87 CLR 267
Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115
Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242
Chang v Registrar of Titles [1976] HCA 1; (1976) 137 CLR 177
Chief Commissioner of Stamp Duties (NSW) v ISPT Pty Ltd (1998) 45 NSWLR 639
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Coles Myer Ltd v Commissioner of State Revenue (Vic) [1998] 4 VR 728
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Commissioner of State Revenue v OZ Minerals Ltd [2013] WASCA 239; (2013) 46 WAR 156
Commissioner of State Taxation (WA) v Nischu Pty Ltd (1991) 4 WAR 437
Commissioner of Taxes (Qld) v Camphin [1937] HCA 30; (1937) 57 CLR 127
Cousins Securities Pty Ltd v CEC Group Ltd [2007] QCA 192; [2007] 2 Qd R 520
Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104
Dougan v Ley [1946] HCA 3; (1946) 71 CLR 142
Dressy Frocks Pty Ltd v Bock (1951) 51 SR (NSW) 390
Duperouzel v Cameron [1973] WAR 181
Eastern Management Ltd v City of Halifax (1970) 17 DLR (3d) 183
English Scottish & Australian Bank Ltd v Phillips [1937] HCA 6; (1937) 57 CLR 302
Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186
Fasken v Minister of National Revenue [1949] 1 DLR 810
Forder v Cemcorp Pty Ltd [2001] NSWSC 281; (2001) 51 NSWLR 486
Gasparin v Federal Commissioner of Taxation [1994] FCA 1057; (1994) 50 FCR 73
Gathercole v Smith (1881) 17 Ch D 1
GPT RE Ltd v Lend Lease Real Estate Investments Ltd [2005] NSWSC 964; (2005) 12 BPR 23, 217
Greenberg v Inland Revenue Commissioners [1972] AC 109
Halloran v Minister Administering National Parks and Wildlife Act 1974 [2006] HCA 3; (2006) 229 CLR 545
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216; (2012) 45 WAR 29
Haque v Haque (No 2) [1965] HCA 38; (1965) 114 CLR 98
Herdegen v Federal Commissioner of Taxation [1988] FCA 419; (1988) 84 ALR 271
Jessica Holdings Pty Ltd v Anglican Property Trust Diocese of Sydney (1992) 27 NSWLR 140
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Kennedy v Vercoe [1960] HCA 64; (1960) 105 CLR 521
Kern Corporation Ltd v Walter Reid Trading Pty Ltd [1987] HCA 20; (1987) 163 CLR 164
KLDE Pty Ltd (in voluntary liq) v Commissioner of Stamp Duties (QLD) [1984] HCA 63; (1984) 155 CLR 288
Kuper & Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419
Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573
Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) [1965] HCA 17; (1965) 113 CLR 265
Laybutt v Amoco Australia Pty Ltd [1974] HCA 49; (1974) 132 CLR 57
Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65
Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406
Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207
MacKay v Wilson (1947) 47 SR (NSW) 315
Marks v Jolly (1938) 38 SR (NSW) 351
Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101
McIntyre v Gye [1994] FCA 1009; (1994) 51 FCR 472
McWilliam v McWilliams Wines Pty Ltd [1964] HCA 6; (1964) 114 CLR 656
Montreal Trust Co v Canadian National Railway Co [1939] AC 613
Mt Newman Mining Co Pty Ltd v Commissioner of State Taxation (WA) (1994) 11 WAR 413
Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85
Nova Resources NL v French (1995) 12 WAR 50
Palette Shoes Pty Ltd (in liq) v Krohn [1937] HCA 37; (1937) 58 CLR 1
Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; (1982) 149 CLR 537
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327
R v Wheeldon [No 1] (1978) 33 FLR 402
Re Anroma Pty Ltd (1986) 2 Qd R 134
Re Ferguson; Ex parte E N Thorne & Co Pty Ltd (in liq) (1969) 14 FLR 311
Re Henderson's Caveat [1998] 1 Qd R 632
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403
Re Webster, Deceased; Brown v Heffer (1967) 85 WN (pt 1) 434
Roach v Bickle [1915] HCA 80; (1915) 20 CLR 663
Road Australia Pty Ltd v Commissioner of Stamp Duties [1999] QCA 328; [2001] 1 Qd R 327
Sanctuary Investments Pty Ltd v St Gregory's Armenian School Inc [1998] NSWSC 788
Sonenco (No 77) Pty Ltd v Silvia [1989] FCA 89; (1989) 24 FCR 105
Sorna Pty Ltd v Flint [2000] WASCA 22; (2000) 21 WAR 563
Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245
Stern v McArthur [1988] HCA 51; (1988) 165 CLR 489
Stow v Mineral Holdings (Australia) Pty Ltd [1979] HCA 30; (1979) 180 CLR 295
Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716
Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; (2003) 217 CLR 315
TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49; (2010) 241 CLR 576
Terrex Resources NL v Magnet Petroleum Pty Ltd (1988) 1 WAR 144
The Commonwealth of Australia v The State of Western Australia [1999] HCA 5; (1999) 196 CLR 392
Transport Accident Commission v Treloar [1992] 1 VR 447
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
Uniting Church in Australia Property Trust (NSW) v Immer (No 145) Pty Ltd (1991) 24 NSWLR 510
Watson v National Companies and Securities Commission [1988] WAR 332
Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1978] HCA 42; (1978) 139 CLR 410
Zhu v Treasurer of NSW [2004] HCA 56; (2004) 218 CLR 530

Table of Contents

BUSS JA.................................................................................................................................... 8
The facts
The Commissioner's determination as to whether Abbotts Exploration had a liability for duty
The application to the Tribunal
Some relevant provisions of the Duties Act
Some relevant provisions of the Mining Act
Some relevant provisions of the Interpretation Act 1984 (WA)
The relevant issue determined by the Tribunal for the purposes of this appeal
The Tribunal's decision
Abbotts Exploration did not take part in the appeal
The original grounds of appeal
The proposed amended grounds of appeal
The matters to be examined in the course of determining the merits of the appeal
What is the general scheme and primary object of the Mining Act?
What is the nature of an exploration licence granted under the Mining Act?
Does the Mining Act use the words 'estate' and 'interest' in connection with mining tenements granted under the Act?
What is the nature of the concepts of an 'estate' and an 'interest', including a 'legal' or an 'equitable' estate or interest, in connection with mining tenements under the Mining Act?
What is the proper construction of s 64 of the Mining Act?
What is the proper construction of s 118A of the Mining Act?
What is the proper construction of the terms 'estate' and 'interest' in the phrase 'an estate or interest in a mining tenement', in the context of mining tenements granted under the Mining Act, within par (ca) of the definition of 'land' in s 3 of the Duties Act?

What rights were relevantly granted to Anuman under the Option Deed?
At the Relevant Date were the rights relevantly granted to Anuman under the Option Deed an 'estate' or an 'interest' in the Fourth Tenement, within par (ca) of the definition of 'land' in s 3 of the Duties Act?

Conclusion

NEWNES JA...........................................................................................................................58
MURPHY JA...........................................................................................................................58

Introduction
Exploration licence
Equitable interests
Section 64 of the Mining Act

Conclusion

BUSS JA: This appeal from a decision of the State Administrative Tribunal (the Tribunal) is concerned with whether rights conferred by a contract in respect of an exploration licence, during the first year of the term for which the exploration licence was granted, were 'an estate or interest in a mining tenement', within par (ca) of the definition of 'land' in s 3 of the Duties Act 2008 (WA).

The facts

On 18 May 2011 (the Relevant Date), the respondent (Abbotts Exploration) acquired shares in Anuman Holdings Pty Ltd (Anuman).
If Anuman was a 'landholder' (as defined in s 148 of the Duties Act) then that acquisition of shares would constitute a 'relevant acquisition' (as defined in s 148 of the Duties Act) for the purposes of ch 3 of the Duties Act, being an acquisition of a 'significant interest', as defined in s 161 of the Duties Act, in Anuman.
At the Relevant Date, Sacculus Pty Ltd (Sacculus) was registered as the holder of four mining tenements (the Tenements) granted under the Mining Act 1978 (WA). Three of the tenements, namely exploration licences 51/1340, 51/1341 and 51/1342, were granted on 25 March 2010. The other tenement, namely exploration licence 51/1367 (the Fourth Tenement), was granted on 14 July 2010.
On 26 February 2010, Sacculus and Mooloogool Ltd (Mooloogool) executed a deed (the Deed of Cooperation) which provided, relevantly, that upon the grant of the Fourth Tenement, Sacculus would hold the right under that tenement to explore for and extract manganese and iron on trust for Mooloogool.
On 8 March 2010, Sacculus entered into a deed with Anuman (the Option Deed). By cl 3.1 of the Option Deed, Sacculus granted Anuman an option to purchase the 'Interest' for the 'Purchase Price'. In cl 1.1 of the Option Deed:
(a)the term 'Interest' was defined to mean 'the right and entitlement to prospect, explore, mine and develop for all minerals excluding manganese and iron on the Mining Interests and the benefit of all receipts and income from any of those activities';
(b)the term 'Mining Interests' was defined to mean certain applications for various mining tenements, including an application by Sacculus for the grant of the Fourth Tenement, 'and any other mining tenement applications or tenements relating to those applications or the area covered by those applications that are made or acquired by' Sacculus;
(c)the term 'Purchase Price' was defined to mean $50,000; and
(d)the term 'Settlement' was defined to mean settlement of the transfer of the Interest pursuant to cl 4 of the Option Deed.
On 9 March 2010, Anuman exercised the option by giving an Option Notice to Sacculus in accordance with cl 3.2 of the Option Deed.
Clause 4.1 of the Option Deed provided that if Anuman exercised the option then, amongst other things:
(a)Sacculus and Anuman 'each acknowledge and agree they have entered into a contract for the transfer of the Interest for the Purchase Price at Settlement, subject to the condition that [Anuman] enter into the agreements specified in cl 4.2';
(b)'the date of the contract is the date when the Option Notice is received by' Sacculus; and
(c)Settlement must take place 'within 6 months of [Anuman] exercising its Option, otherwise this Agreement is automatically terminated and each Party is released from its obligations under this Agreement'.
Pursuant to cl 4.2 of the Option Deed, in late 2010 Anuman executed deeds of assignment under which it assumed the rights and obligations of Sacculus under two contracts, one of which was the Deed of Cooperation.
Clause 4.3 of the Option Deed provided that, on Settlement, Sacculus would transfer the Interest to Anuman 'and provide and sign all documents necessary to ensure' that Anuman became the registered holder of the Interest. Clause 4.3 further provided that if, on Settlement, 'any part of the Interest is not a granted tenement or ministerial consent is required to transfer any part of the Interest [Sacculus] will hold that part of the Interest on trust for [Anuman] until such time as the tenement is granted and any necessary ministerial consent is obtained'.
By cl 4.4 of the Option Deed, Anuman was obliged, on Settlement, to pay the Purchase Price to Sacculus.
By cl 4.5 and cl 4.6 of the Option Deed, Sacculus and Anuman agreed that, following Settlement:
(a)Anuman would be entitled 'in all respects to be registered as the holder of any mining tenement comprising part of or issued for the Mining Interests'; and
(b)Anuman would have the sole and exclusive right in relation to, amongst other things, the Fourth Tenement to explore, prospect for, mine and commercially develop all minerals excluding manganese and iron.
Sacculus promised in cl 5.2 of the Option Deed that for the duration of the option and, if exercised, until Settlement it would 'keep the Mining Interests in good standing in accordance with the applicable laws of the State including the Mining Act, including, without limitation, the payment of all rentals, rates, taxes, payments, expenditures and work required'.
Clause 8.1 imposed on each party an obligation to 'sign and execute and do all acts, documents and things that may be reasonably required in order to implement and give full effect [to] the provisions and purposes of this Deed whether before or after its execution'.
By letter dated 11 January 2012, and in response to a request from the appellant (the Commissioner), Abbotts Exploration stated that the settlement date was to be five business days after the exercise of the option under the Option Deed, and acknowledged that 'at settlement of the purchase Anuman became entitled to the "Interest" (ie the contractual rights) in the tenement applications as they then were'.
The parties and the Tribunal therefore proceeded on the basis that Settlement occurred prior to the Relevant Date (that is, prior to 18 May 2011).
If, as the parties agreed, Settlement occurred five business days after the exercise of the option, the Fourth Tenement had not been granted at the time of Settlement. The option was exercised on 9 March 2010 and the Fourth Tenement was granted on 14 July 2010.
At the Relevant Date:
(a)Sacculus remained the registered holder of the Fourth Tenement;
(b)the first year of the term for which the Fourth Tenement was granted had not expired; and
(c)written consent under s 64(1)(b) of the Mining Act had not been obtained to any dealing or other transaction, by or pursuant to the Option Deed and the Option Notice, in or affecting a legal or equitable interest in or affecting the Fourth Tenement.

The Commissioner's determination as to whether Abbotts Exploration had a liability for duty

By letter dated 18 July 2011, Abbotts Exploration sought a determination from the Commissioner under s 180 of the Duties Act as to whether a liability for duty existed in respect of the acquisition of shares in Anuman on the Relevant Date.
By letter dated 22 September 2011, the Commissioner informed Abbotts Exploration that 'it is considered that Anuman is beneficially entitled to the [Tenements] and is therefore a landholder assuming that the value of WA land is $2,000,000 or more'.
On 21 October 2011, Abbotts Exploration's solicitors lodged a notice of objection. The grounds for objection were these:
The Option Deed did not grant Anuman the option to acquire from Sacculus any mining tenements. The Option Deed granted Anuman the option to acquire certain contractual rights in relation to certain minerals only regarding mining tenements owned by Sacculus.
It is clear from the statutory definitions set out above that contractual rights in relation to mining tenements are not 'land', as opposed to the mining tenements themselves which are specifically included in the statutory definition of 'land'.
Anuman is not beneficially entitled to the Sacculus mining tenements and therefore is not beneficially entitled to land in Western Australia for the purposes of the Duties Act. As such Anuman is not a landholder for the purposes of the Duties Act.
On the basis that Anuman is not a landholder, the 18 May 2011 acquisition is not a relevant acquisition for the purposes of the Duties Act and accordingly, the acquisition does not attract landholder duty.
On 23 May 2012, the Commissioner disallowed the objection on the following basis:
The language of the arrangements described above, is not merely that of authorising or granting contractual rights to Anuman to conduct certain exploration activities on the Mining Tenements. Instead, the material at hand evidences that what has taken place is the acquisition by Anuman of Sacculus’ interest in what are now the Mining Tenements, which acquisition was effected pursuant to the Option Deed and the Deed of Assignment, along with Anuman's acceptance of the assignment of Sacculus’ rights and obligations arising from the Deed of Cooperation.
In consequence, I have formed the view that the entitlement of Anuman in the Mining Tenements constitutes an equitable interest and falls within the scope of an estate or interest in land for the purposes of the Duties Act.

The application to the Tribunal

On 20 July 2012, Abbotts Exploration applied to the Tribunal under s 40(1) of the Taxation Administration Act 2003 (WA) for a review of the Commissioner's decision to disallow the objection.

Some relevant provisions of the Duties Act

Chapter 3 of the Duties Act is headed 'Landholder duty' and comprises s 148 ‑ s 204.
Section 151 provides that duty is imposed in respect of any 'relevant acquisition' under pt 5 of 'an interest in an entity that under Part 4 is a landholder' for the purposes of ch 3.
By s 163 read with the definition of 'significant interest' in s 161, an acquisition by a person of an 'interest' (as defined in s 148) is a 'relevant acquisition', in the case of a 'landholder' that is not a 'listed landholder' (as defined in s 148), if the conditions specified in s 163 are satisfied.
By s 155(2), a corporation is a 'landholder' if, immediately before the acquisition, it or an entity 'linked' to the corporation is 'entitled' to 'land' in Western Australia and the total value of all such the entitlements is $2,000,000 or more. The term 'entitled' is defined in s 3 to mean, relevantly, 'beneficially entitled'.
The term 'land' is defined in s 3, relevantly, as follows:
land includes ‑
(a)any estate or interest in land other than a carbon right or a carbon covenant registered under the Carbon Rights Act 2003; and
(b)a mining tenement; and
(ca)an estate or interest in a mining tenement; and
(cb)anything that ‑
(i)under the authority (whether direct or indirect) of a mining tenement, is fixed to land that is the subject of that mining tenement; and
(ii)would be part of that land as a fixture if the mining tenement were a freehold estate in the land.
The term 'mining tenement' is defined in s 3 to include 'a mining tenement held under the Mining Act 1978 being a mining tenement within the meaning of that Act'.
Section 148 provides that in ch 3, unless the contrary intention appears, 'land' does not include 'a security interest in land'. The term 'security interest' is defined in s 3 to mean 'the estate or interest of a mortgagee, chargee or other secured creditor'.
The phrase 'estate or interest in a mining tenement', and the words 'estate' and 'interest' in the context of land or a mining tenement, are not defined in the Duties Act.

Some relevant provisions of the Mining Act

A 'mining tenement' is defined in s 8 of the Mining Act to mean 'a prospecting licence, exploration licence, retention licence, mining lease, general purpose lease or a miscellaneous licence granted or acquired under this Act … and includes the specified piece of land in respect of which the mining tenement is so granted or acquired'.
Section 64 is concerned with certain dealings in an exploration licence during the first year of the term for which the exploration licence is granted. It provides:
(1)During the first year of the term for which an exploration licence is granted, a legal or equitable interest in or affecting the exploration licence shall not be transferred or otherwise dealt with, whether directly or indirectly, unless ‑
(a)the dealing or other transaction in or affecting the interest arises in the due administration of the estate or affairs of a holder ‑
(i)who is dead; or
(ii)who is a person who is an insolvent under administration within the meaning of the Corporations Act; or
(iii)who is otherwise incapacitated at law; or
(iv)which is in the course of being wound up (not being a voluntary winding up);
or
(b)prior written consent to the dealing or other transaction in or affecting the interest is given by the Minister or an officer of the Department acting with the authority of the Minister.
(2)Nothing in subsection (1) prevents, or affects the validity of, any agreement made in contemplation of a dealing or other transaction to which that subsection applies where the agreement expressly provides that the consent required by that subsection is to be obtained as a condition of the dealing or other transaction.
Section 118A permits the holder of, relevantly, an exploration licence, by instrument in writing, to authorise another person to carry out mining of a kind authorised by the exploration licence on the land the subject of the tenement. It provides:
(1)In this section ‑
authorisation means an authorisation under subsection (2).
(2)The holder of a prospecting licence, exploration licence or mining lease (the relevant tenement) may, by instrument in writing, authorise another person to carry out mining of a kind authorised by the relevant tenement on the land the subject of the relevant tenement.
(3)An authorisation may be given subject to conditions specified in the authorisation.
(4)Mining carried out under an authorisation is to be regarded for the purposes of this Act as mining carried out by the holder of the relevant tenement.
(5)Expenditure on or in connection with mining carried out under an authorisation is to be regarded for the purposes of the prescribed expenditure conditions referred to in section 50, 62 or 82(1)(c) as expenditure by the holder of the relevant tenement.
(6)The giving of an authorisation does not affect the duties or obligations of the holder of the relevant tenement under this Act.

Some relevant provisions of the Interpretation Act 1984 (WA)

Section 3(1) of the Interpretation Act 1984 (WA) provides that the provisions of the Act apply to every written law, whether the law was enacted, passed, made, or issued before or after the commencement of the Act, unless, relevantly, in relation to a particular written law:
(a)express provision is made to the contrary; or
(b)in the case of an Act, the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application …
By s 5, in the Act and every other written law:
estate, in relation to land, includes any legal or equitable estate or interest, easement, right, title, claim, demand, charge, lien, or encumbrance in, over, to, or in respect of the land;
…
land includes buildings and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land.

The relevant issue determined by the Tribunal for the purposes of this appeal

The relevant issue determined by the Tribunal for the purposes of this appeal was whether, at the Relevant Date, the rights held by Anuman in respect of the Fourth Tenement were 'an estate or interest in a mining tenement', within par (ca) of the definition of 'land' in s 3 of the Duties Act.

The Tribunal's decision

The Tribunal noted that, at all material times, Sacculus was prohibited by s 64(1) of the Mining Act 'from transferring or otherwise dealing with the Fourth Tenement' [70]. It was not suggested that any of the exceptions in par (a) or par (b) of s 64(1) applied. The Tribunal concluded that, by virtue of the prohibition in s 64(1), Anuman did not, at the Relevant Date, have 'a legal or equitable interest in the Fourth Tenement' [71]. However, the Tribunal found that, at the Relevant Date, Anuman had 'a right in respect of the Fourth Tenement' [75].
Before the Tribunal, the Commissioner relied on the definition of 'estate' in s 5 of the Interpretation Act. It was submitted that Anuman's right, at the Relevant Date, in respect of the Fourth Tenement was an 'estate' (as defined in s 5) in the Fourth Tenement, and therefore 'an estate or interest in a mining tenement', within par (ca) of the definition of 'land' in s 3 of the Duties Act.
The Tribunal rejected the Commissioner's submission [72] ‑ [74]. The Tribunal referred, in particular, to three matters.
First, s 64(1) of the Mining Act was 'a clear prohibition on dealing in any way with an exploration licence within the first year of its term' [74].
Secondly, applying the definition of 'estate' in s 5 of the Interpretation Act 'would produce a result which is contrary to the intention of the Mining Act' [74].
Thirdly, by reason of s 64 of the Mining Act, Anuman's right, at the Relevant Date, in respect of the Fourth Tenement 'could not have been proprietary, but was only a personal right', and a personal right in relation to the Fourth Tenement could not be said to constitute an 'estate or interest' in that tenement [75] ‑ [77].
The Tribunal therefore concluded that, at the Relevant Date, Anuman did not have 'an estate or interest' in the Fourth Tenement, within par (ca) of the definition of 'land' in s 3 of the Duties Act [78].

Abbotts Exploration did not take part in the appeal

Abbotts Exploration did not take part in the appeal.
It did not appear on 7 November 2013, when the appeal was part heard, or on 16 April 2014, when the hearing was completed.

The original grounds of appeal

The Commissioner's original grounds of appeal were these:
1.The Tribunal erred in law in finding that Anuman Holdings Pty Ltd (Anuman) did not at the relevant date have an 'estate' in exploration licence EL51/1367 (Fourth Tenement), within the meaning of the word 'estate' in paragraph (ca) of the definition of 'land' in section 3 of the Duties Act 2008 (WA) ([78]), and therefore that the right and entitlement of Anuman in respect of the Fourth Tenement did not constitute 'land' for the purposes of the Duties Act, in that:
(a)The Tribunal erroneously considered section 64(1) of the Mining Act 1978 (WA) prohibited dealing in any way with the Fourth Tenement ([74]).
(b)The Tribunal erroneously took into account that the application of the definition of 'estate' in section 5 of the Interpretation Act 1984 (WA) would be contrary to the intention of the Mining Act 1978 ([74]).
(c)The Tribunal erroneously considered that Anuman did not have a proprietary right under the Option Deed made between Sacculus Pty Ltd (Sacculus) and Anuman dated 8 March 2010 (Option Deed), as it applied to the Fourth Tenement ([75] ‑ [77]).
2.The Tribunal erred in law in failing to find that the right and entitlement of Anuman under the Option Deed constituted an 'estate' in the Fourth Tenement and thereby constituted 'land' as defined in section 3 of the Duties Act 2008 (WA).
The hearing on 7 November 2013 was adjourned because counsel for the Commissioner informed the court that he wanted to move for leave to amend the original grounds.
On 7 November 2013, the court made orders, relevantly, as follows:
By 4 pm on 29 November 2013:
(a)[The Commissioner] is to file and serve a minute of proposed amended grounds of appeal and is to serve a copy of these orders.
(b)[The Commissioner] is to file and serve written submissions on its application for leave to amend the grounds of appeal and the proposed amended ground of appeal.
(c)[The Commissioner] is to inform [Abbotts Exploration] in writing that:
(i)the appeal has been part heard on the existing grounds of appeal and the court will hear submissions on a date to be fixed on [the Commissioner's] application for leave to amend the grounds of appeal and on the amended ground of appeal, if leave is granted;
(ii)if [Abbotts Exploration] wishes to be heard on the application for leave to amend the grounds of appeal or the proposed amended ground of appeal on the date to be fixed, [Abbotts Exploration] must file and serve notice of its intention to take part in the appeal by 4 pm on 6 December 2013.
The Commissioner filed an affidavit which verified compliance with this order. Abbotts Exploration did not file or serve notice of its intention to take part in the appeal.

The proposed amended grounds of appeal

The Commissioner's proposed amendments to the original grounds of appeal comprise adding a new ground 1A and reformulating ground 2. No amendments are proposed to ground 1. The new ground 1A and the reformulated ground 2 read:
1A.The Tribunal erred in law in finding that, by reason of section 64(1) of the Mining Act 1978 (WA), as at 18 May 2011 Anuman did not have an interest in the Fourth Tenement within the meaning of the word 'interest' in paragraph (ca) of the definition of 'land' in section 3 of the Duties Act 2008 (WA) and therefore that the right and entitlement of Anuman in respect of the Fourth Tenement did not constitute 'land' for the purposes of the Duties Act 2008 (WA) ([70], [71], [78]).
2.The Tribunal erred in law in failing to find that the right and entitlement of Anuman under the Option Deed constituted an 'estate' in the Fourth Tenement, further or alternatively that Anuman had an interest in the Fourth Tenement or was otherwise beneficially entitled to the Fourth Tenement, and ~~thereby~~ ~~constituted~~ therefore that the Fourth Tenement was 'land' as defined in section 3 of the Duties Act 2008 (WA) to which Anuman was beneficially entitled as at 18 May 2011.
At the hearing on 16 April 2014 the court heard submissions on the new ground 1A and the reformulated ground 2, but reserved its decision on whether leave to amend should be granted.

The matters to be examined in the course of determining the merits of the appeal

The matters to be examined in the course of determining the merits of the appeal are these:
(a)What is the general scheme and primary object of the Mining Act?
(b)What is the nature of an exploration licence granted under the Mining Act?
(c)Does the Mining Act use the words 'estate' and 'interest' in connection with mining tenements granted under the Act?
(d)What is the nature of the concepts of an 'estate' and an 'interest', including a 'legal' or an 'equitable' estate or interest, in connection with mining tenements under the Mining Act?
(e)What is the proper construction of s 64 of the Mining Act?
(f)What is the proper construction of s 118A of the Mining Act?
(g)What is the proper construction of the terms 'estate' and 'interest' in the phrase 'an estate or interest in a mining tenement', in the context of mining tenements granted under the Mining Act, within par (ca) of the definition of 'land' in s 3 of the Duties Act?
(h)What rights were relevantly granted to Anuman under the Option Deed?
(i)At the Relevant Date were the rights relevantly granted to Anuman under the Option Deed an 'estate' or an 'interest' in the Fourth Tenement, within par (ca) of the definition of 'land' in s 3 of the Duties Act?
I will consider each of these matters in turn.

What is the general scheme and primary object of the Mining Act?

In Commissioner of State Revenue v OZ Minerals Ltd [2013] WASCA 239; (2013) 46 WAR 156, I noted the general features of the six different types of mining tenement available under the Mining Act in the context of the primary object of the Act [159] ‑ [167]. It is useful to reproduce, for the purposes of this appeal, what I wrote on that topic in OZ Minerals.
By s 9(1) of the Mining Act, subject to the Act:
(a)all gold, silver, and any other precious metal existing in its natural condition on or below the surface of any land, whether alienated or not alienated from the Crown and, if alienated, whenever alienated, is the property of the Crown; and
(b)all other minerals existing in their natural condition on or below the surface of any land that was not alienated in fee simple from the Crown before 1 January 1899 are the property of the Crown.
The primary object of the Mining Act is to encourage and promote the prospecting and exploration for, and mining of, mineral deposits in the State. See The Commonwealth of Australia v The State of Western Australia [1999] HCA 5; (1999) 196 CLR 392 [172] (Kirby J). Part III of the Mining Act specifies land which is 'open for mining'; that is, relevantly, land which may be made the subject of an application for a mining tenement, subject to and in accordance with the Act. Part III distinguishes between and makes particular provision for Crown land, public reserves and private land.
The primary object of the Mining Act is sought to be carried into effect by making available specific tenements, subject to reasonably stringent conditions. See Nova Resources NL v French (1995) 12 WAR 50, 57 ‑ 58, (Rowland J, Kennedy & Pidgeon JJ agreeing); Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 [70] (Buss JA, Wheeler JA agreeing).
The Mining Act makes provision, and at the Relevant Date made provision, for six different types of mining tenement. They are the prospecting licence, the exploration licence, the mining lease, the general purpose lease, the miscellaneous licence and the retention licence. See Hunt MW, Mining Law in Western Australia (4th ed, 2009) chs 4, 5, 6, 7, 8 and 9.
A prospecting licence is designed for the prospecting of minerals on a relatively small scale. An exploration licence permits exploration over a significantly larger area and for a significantly longer period than a prospecting licence. Both prospecting and exploration licences are investigatory tenements. Each licence authorises the holder to enter upon land for the purpose of prospecting or exploring (as the case may be) for minerals with employees and contractors and such vehicles, machinery and equipment as may be necessary or expedient. It permits prospecting or exploring (as the case may be) for minerals and the undertaking of operations and works necessary for that purpose including digging pits, trenches and holes, sinking bores and tunnelling. The holder may excavate, extract or remove earth, soil, rock, stone, fluid or mineral bearing substances not exceeding a prescribed amount, but the Minister may approve the taking of a greater amount. See div 1 and div 2 of pt IV of the Mining Act; Hunt MW, chs 4 and 5.
A mining lease authorises the development of, and production from, an ore body discovered by prospecting or exploration. The holder is entitled to mine for and dispose of minerals on the land in respect of which the lease was granted. A mining lease confers rights to water. The holder is entitled to do all acts and things necessary effectively to carry out mining operations and may use, occupy and enjoy the land for mining purposes. The holder owns all minerals lawfully mined. The rights conferred on the holder are exclusive rights for mining purposes in relation to the land in respect of which the lease was granted. See div 3 of pt IV of the Mining Act; Hunt MW, ch 7.
A retention licence may be granted to certain holders of a prospecting licence, an exploration licence or a mining lease. It enables the holder in effect to convert that tenement to a retention licence and authorises the holder to enter on the relevant land for further exploration. The holder may take such plant on to the land and carry out such works as are necessary, including digging pits, trenches and holes, excavating, extracting and removing mineral bearing substances not exceeding 1,000 tonnes and taking water. A retention licence is applied for where a mineral resource has been located but it is currently impracticable to mine it. See div 2A of pt IV of the Mining Act; Hunt MW, ch 6.
A general purpose lease is an ancillary tenement which may be used with respect to mining operations on such terms and conditions as the Minister considers reasonable. The holder is entitled to exclusive possession of the relevant land for one or more of the permitted purposes. These purposes comprise the erecting, placing and operating of machinery in connection with mining operations, the depositing or treating of minerals or tailings, and use of the land for any other specified purpose directly connected with mining operations. See div 4 of pt IV of the Mining Act; Hunt MW, ch 8.
A miscellaneous licence is an ancillary tenement which may be granted over any land, including land the subject of an existing mining tenement, whether held by the applicant or another person. Another mining tenement may be granted over land that is the subject of an existing miscellaneous licence. A miscellaneous licence may be granted for one or more of the purposes specified in reg 42B of the Mining Regulations 1981 (WA). These purposes include, for example, a road, a pipeline, a power line, a bridge, a water management facility and a power generation and transmission facility. See div 5 of pt IV of the Mining Act; Hunt MW, ch 9.

What is the nature of an exploration licence granted under the Mining Act?

An exploration licence is a creature of statute. It is part of the statutory scheme which governs mining operations in this State. The nature of an exploration licence and its incidents depend upon, and must be characterised in the context of, the relevant provisions of the Mining Act and any general law concepts that are embodied in those provisions. See, generally, English Scottish & Australian Bank Ltd v Phillips [1937] HCA 6; (1937) 57 CLR 302, 321 ‑ 324 (Dixon, Evatt & McTiernan JJ); R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327, 344 (Mason J).
By s 57(1) of the Mining Act, the Minister is empowered, subject to the Act, to grant exploration licences on such terms and conditions as the Minister may determine. In addition to any conditions imposed by the Minister, s 63 deems every exploration licence to have been granted subject to the condition that the holder will explore for minerals and, amongst other things, 'will promptly report in writing to the Minister all minerals of economic interest discovered in, on or under the land the subject of the exploration licence'.
Subject to the Act, an exploration licence remains in force for a period of five years from the date of grant: s 61(1). The Minister is empowered to extend the term by one period of five years, and by a further period or periods of two years, as to the whole or any part of the land the subject of the licence, on such terms and conditions as the Minister thinks fit: s 61(2).
By s 66, an exploration licence authorises the holder, subject to the Act, and in accordance with any conditions to which the licence may be subject:
(a)to enter and re‑enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;
(b)to explore, subject to any conditions imposed under s 24, s 24A or s 25 of the Act, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;
(c)to excavate, extract or remove, subject to any conditions imposed under s 24, s 24A or s 25 of the Act, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing;
(d)to take and divert, subject to the Rights in Water and Irrigation Act 1914 (WA), or any Act amending or replacing the relevant provisions of that Act, water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals on the land.
The holder of an exploration licence must comply with the prescribed expenditure conditions relating to the licence unless exemption has been obtained: s 62(1).
If the holder fails to comply with the prescribed expenditure conditions or any other condition on which the exploration licence is held, the licence is liable to forfeiture: s 63A.
An exploration licence or an 'interest' in an exploration licence may be transferred. However, during the first year of the term for which an exploration licence is granted, a legal or equitable interest in or affecting the licence shall not be transferred or otherwise dealt with, whether directly or indirectly, except as provided in s 64(1).
Mining tenements under the Mining Act are in the nature of personalty, not realty. See TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49; (2010) 241 CLR 576 [27] ‑ [47] (French CJ, Gummow, Heydon, Crennan & Kiefel JJ).
In TEC Desert, French CJ, Gummow, Heydon, Crennan and Kiefel JJ referred to the observations of Barwick CJ and Stephen J in Adamson v Hayes [1973] HCA 6; (1973) 130 CLR 276 about the Mining Act 1904 (WA) and, more generally, the scheme of mining legislation in Australia:
Barwick CJ explained that it was by the mechanism provided by the statute 'rather than by the creation of any actual estate or interest in the land' (Adamson at CLR 289; ALR 1231) that the holder of a mining tenement was provided with the security adequate for the furtherance of the mining activity. Stephen J added that 'no interest in land is involved in any ordinary sense of that term' (Adamson at 312) [28].
In Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101, Ipp J (Pidgeon J agreeing) held that an exploration licence has 'a proprietorial character' [103].
In Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216; (2012) 45 WAR 29, McLure P (Newnes JA & Le Miere J agreeing) said, consistent with the reasoning of the High Court in TEC Desert in relation to mining leases, that an exploration licence granted under the Mining Act does not give rise to 'an estate or interest in land' [72]. Her Honour added that exploration licences are 'property', but are not 'land or an interest in land' and are not 'choses in possession' [73]. Her Honour was of the view that exploration licences are 'legal choses in action' [73].

Does the Mining Act use the words 'estate' and 'interest' in connection with mining tenements granted under the Act?

The Mining Act uses the terms 'estate', 'interest', 'estate and interest' and 'estate or interest' in connection with mining tenements granted under the Act.
The relevant provisions are as follows:
(a)The term 'dealing' is defined in s 8(1) to mean, unless the contrary intention appears, 'a transfer or mortgage of a legal interest in a mining tenement' (emphasis added).
(b)Section 45 is concerned with prospecting licences. Section 45(2)(b) states that when a prospecting licence is surrendered, forfeited or expires, the land the subject of the prospecting licence or any part of it shall not be marked out or applied for as a prospecting licence or an exploration licence by or on behalf of 'any person who had an interest in the prospecting licence' immediately prior to that date, within a period of three months from and including that date (emphasis added). By s 45(2a), for the purposes of s 45(2)(b), the holding of shares in a listed public company which held the prospecting licence in question 'does not of itself constitute an interest in the prospecting licence' (emphasis added).
(c)Section 49 confers on the holder of a prospecting licence priority for the grant of a mining lease or general purpose lease over the land the subject of the prospecting licence. By s 49(1), the holder of a prospecting licence has, subject to the Act and to any conditions to which the prospecting licence is subject, and while the prospecting 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 or one or more general purpose leases or both in respect of any part or parts of the land the subject of the prospecting licence. Section 49(3) and s 49(4) provide:
(3)If, after an application is made under subsection (1) in respect of land the subject of a prospecting licence ‑
(a)the holder of the licence transfers the licence; or
(b)where there are 2 or more holders of the licence, a holder transfers the holder’s interest in the licence,
the application continues in the name of the transferee of the licence or interest as if the transferee were the applicant or one of the applicants, as the case requires.
(4)For the purposes of subsection (3), where there are 2 or more transferees of the prospecting licence, each of the transferees is to be regarded as an applicant for an interest in the relevant mining lease or general purpose lease that corresponds to the interest held by that transferee in the licence. (emphasis added)
(d)Section 56A relates to special prospecting licences on land the subject of prospecting licences. By s 56A(7):
No legal or equitable interest in or affecting ‑
(a)a special prospecting licence; or
(b)a mining lease in respect of the land or any part thereof the subject of a special prospecting licence,
is capable of being created, affected or dealt with, whether directly or indirectly, except with the prior written consent of the holder of the primary tenement, and no person shall hold or have any beneficial, legal or equitable interest in ‑
(c)more than 10 such special prospecting licences; or
(d)more than one such mining lease. (emphasis added)
(e)I have already set out s 64. See [33] above. Section 64(1) provides, relevantly, that during the first year of the term for which an exploration licence is granted, 'a legal or equitable interest in or affecting the exploration licence shall not be transferred or otherwise dealt with, whether directly or indirectly', unless one of the exceptions in par (a) and par (b) applies (emphasis added). Each of par (a) and par (b) refers to 'the dealing or other transaction in or affecting the interest' (emphasis added).
(f)Section 67 confers on the holder of an exploration licence priority for the grant of a mining lease or general purpose lease over the land the subject of the exploration licence. Section 67(3) and s 67(4) contain provisions similar to s 49(3) and s 49(4).
(g)Section 69 is concerned with exploration licences. Section 69(1) contains provisions similar to s 45(2). In particular, s 69(1)(b) refers to an application by or on behalf of 'any person who had an interest in the exploration licence' in question (emphasis added). Section 69(2) is similar to s 45(2a).
(h)Section 70 relates to special prospecting licences on land the subject of exploration licences. Section 70(7) is identical to s 56A(7).
(i)Section 70C is concerned with applications for a retention licence. Section 70C(7) and s 70C(8) contain provisions similar to s 49(3) and s 49(4).
(j)Section 70H(1)(e) states that every retention licence is deemed to be granted subject to the condition that the holder of the licence shall not 'transfer or mortgage a legal interest in [the land in respect of which the licence is granted] or any part thereof without the prior written consent of the Minister' (emphasis added).
(k)Section 70L confers on the holder of a retention licence priority for the grant of a mining lease or general purpose lease over the land the subject of the retention licence. Section 70L(3) and s 70L(4) contain provisions similar to s 49(3) and s 49(4).
(l)Section 70N relates to retention licences. It contains provisions similar to s 45(2)(b) and s 45(2a).
(m)Section 78 specifies the term of a mining lease and makes provision for an application for the renewal of a mining lease. By s 78(4):
If, after an application for renewal is made under this section ‑
(a)the holder of the mining lease transfers the lease; or
(b)where there are 2 or more holders of the mining lease, a holder transfers the holder’s interest in the lease,
the application continues in the name of the transferee of the lease or interest as if the transferee were an applicant or one of the applicants, as the case requires. (emphasis added)
(n)Section 82(1)(d) states that every mining lease is deemed to be granted subject to the condition that the lessee shall not 'transfer or mortgage a legal interest in [the land in respect of which the lease is granted] or any part thereof without the prior written consent of the Minister … ' (emphasis added).
(o)Section 85A is concerned with mining leases. Section 85A(1) and s 85A(2) contain provisions similar to s 45(2)(b) and s 45(2a).
(p)Section 85B relates to special prospecting licences on land the subject of mining leases. Section 85B(5) is similar to s 56A(7).
(q)Section 88 specifies the term of a general purpose lease and makes provision for an application for the renewal of a general purpose lease. Section 88(4) is similar to s 78(4).
(r)Section 95 is concerned with the surrender of a mining tenement. By s 95(6), relevantly:
Notwithstanding anything to the contrary in this Act other than section 26A(3) and (4), where a mining tenement is surrendered, whether under this section or under section 26A or 65, in whole or in part, every right, title and interest held under the mining tenement in respect of ‑
(a)the whole of the land the subject of that tenement; or
(b)that part of that land which is being surrendered,
as the case requires, absolutely ceases and determines. (emphasis added)
(s)Section 97 is concerned with the forfeiture of a mining lease or a general purpose lease. Section 97(2) states that the production of a copy of the Government Gazette containing a forfeiture notice published pursuant to s 97(1) is evidence that a breach of a covenant has been committed by the lessee and that 'the estate and interest of the lessee in such lease has been lawfully determined' (emphasis added). Section 97(3) provides that, subject to s 97A, the Minister has a discretion to cancel the forfeiture of a mining lease or a general purpose lease and 'restore the lessee as of his former estate in respect of the forfeited lease' (emphasis added).
(t)Section 103C relates to the registration of a limited class of instruments including a 'dealing' (as defined in s 8(1)) and 'a discharge of a mortgage of a legal interest in a mining tenement' (emphasis added). See s 103C(1)(a) and (b). Section 103C(8) provides:
A dealing does not pass any legal estate or interest in a mining tenement or in any way charge or encumber a mining tenement until it is registered in accordance with this section. (emphasis added)
(u)Section 103G(1) refers to the amendment of particulars in the register (kept under s 103F) relating to a mining tenement, or an application for a mining tenement, 'in which [a] person has an interest' (emphasis added).
(v)Section 113 provides that when a mining tenement expires or is surrendered or forfeited, the owner of the land to which the mining tenement related may take possession of the land forthwith, 'subject to any estate or interest held by any other person other than under that mining tenement' (emphasis added).
(w)Section 116 is concerned with the circumstances in which a mining tenement granted or renewed under the Act will be indefeasible. Section 116(2) provides, relevantly:
[N]o person dealing with a registered holder of a mining tenement shall be required or in any way concerned to inquire into or ascertain the circumstances under which the registered holder or any previous holder was registered, or to see to the application of any purchase or consideration money, or be affected by notice, actual or constructive, of any unregistered trust or interest any rule of law or equity to the contrary notwithstanding, and the knowledge that any such unregistered trust or interest is in existence shall not of itself be imputed as fraud. (emphasis added)
(x)Section 119(2) provides:
A legal or equitable interest in or affecting a mining tenement is not capable of being created, assigned, affected or dealt with, whether directly or indirectly, except by an instrument in writing signed by the person creating, assigning or otherwise dealing with the interest. (emphasis added)
(y)By s 119A(2), if there are two or more mortgages 'affecting the same legal interest in a mining tenement', the mortgages take priority according to the time and date of their registration (emphasis added).
(z)Part VI relates to the lodgment of caveats against mining tenements. Various provisions of pt VI refer to the lodgment of a caveat by a person claiming 'an interest in a mining tenement' (emphasis added).
(aa)Section 132 specifies the jurisdiction of a warden's court. By s 132(1)(i), a warden's court has jurisdiction to hear and determine proceedings in respect of 'contribution by or between persons holding joint or several interests in mining tenements towards rent or other expenses in relation thereto' (emphasis added). Section 132(1)(l) refers to 'the partition, sale, disposal, or division of any mining property, or the proceeds thereof, held by 2 or more persons having conflicting interests therein' (emphasis added).
(bb)Section 134(1) sets out the powers of a warden's court. Section 134(1)(i) is identical to s 132(1)(l).
(cc)Section 134(3)(j) provides that 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 the taking of accounts by any specified person in relation to any mining partnership or to 'the respective shares or interests' of 'any person interested in any mining property, mining tenement or mineral' (emphasis added).
My review of the relevant provisions of the Mining Act reveals that the word 'interest', rather than the word 'estate', is invariably used in relation to specific mining tenements. Indeed, the only specific tenements in relation to which the word 'estate' is used are the mining lease and the general purpose lease. Section 97(2) refers to 'the estate and interest of the lessee' in the mining lease or the general purpose lease, as the case may be, and s 97(3) refers to the lessee's 'former estate' in respect of 'the forfeited lease'. Section 103C(8) refers to 'any legal estate or interest in a mining tenement', and s 113 refers to 'any estate or interest held by any other person' in the land the subject of a mining tenement that has expired or is surrendered or forfeited.

What is the nature of the concepts of an 'estate' and an 'interest', including a 'legal' or an 'equitable' estate or interest, in connection with mining tenements under the Mining Act?

Section 103F(1) of the Mining Act provides that the Director General of Mines is to cause a register (the Register) to be compiled and maintained. By s 103F(2), the Register is to contain such particulars, relating to mining tenements and applications for mining tenements, as are prescribed.
However, by s 103C(3), only an instrument to which s 103C applies may be registered. The limited class of instruments which are registrable is set out in s 103C(1). They comprise:
(a)a 'dealing', which, as I have mentioned, is defined in s 8(1) as 'a transfer or mortgage of a legal interest in a mining tenement';
(b)a discharge of a mortgage of 'a legal interest in a mining tenement';
(c)a withdrawal of an application for a mining tenement;
(d)a surrender under s 26A, s 65 or s 95;
(e)a tax memorial; and
(f)a withdrawal of a memorial.
Other instruments in writing relating to mining tenements are not able to be registered. However, a person claiming an 'interest' in a mining tenement may lodge a caveat against the tenement. See s 122A and the other provisions of pt VI.
As I have mentioned, the Mining Act contains numerous references to an 'estate', an 'interest', an 'estate and interest' and an 'estate or interest' in connection with mining tenements. However, none of those terms is defined in the Act. The definition of 'estate' in s 5 of the Interpretation Act is inapplicable because that definition relates to land, and mining tenements under the Mining Act are in the nature of personalty, not realty.

'Estate' and 'interest' have in law a variety of significations. Their meaning depends upon the connection in which they are used. In a statute, the meaning of 'estate' and 'interest', if undefined, depends to a substantial degree upon their association with other words.
The terms 'estate', 'interest', 'estate and interest' and 'estate or interest', in the context of land, have, in their ordinary and natural meaning, a proprietary connotation. See Stow v Mineral Holdings (Australia) Pty Ltd [1979] HCA 30; (1979) 180 CLR 295, 311 (Aickin J); Ex parte Meneling Station (342) (Mason J).
In my opinion, the concepts of an 'estate', an 'interest', an 'estate and interest' and an 'estate or interest' in connection with mining tenements, as used in the Mining Act, denote a proprietary interest in the tenement in question. The proprietary interest comprises, relevantly for the purposes of this appeal, those proprietary rights over, affecting or in connection with the tenement that are referable to the particular 'estate' or 'interest' in question, and are conferred by the Mining Act and, subject to the Act, any relevant instrument or instruments in writing.
It is unnecessary, in this appeal, to consider other circumstances (apart from a grant under the Mining Act and an instrument or instruments in writing) in which proprietary rights over, affecting or in connection with a mining tenement may arise or be created; for example, by operation of law. See, in this regard, Sorna Pty Ltd v Flint [2000] WASCA 22; (2000) 21 WAR 563; Skead N, 'The Registration and Caveat Systems under the Mining Act 1978 (WA): A Torrens Clone?', (2007) 26 Australian Resources and Energy Law Journal 185.
As I have mentioned, the only specific tenements in relation to which the word 'estate' is used in the Mining Act are the mining lease and the general purpose lease. The drafter may have used the word 'estate' in relation to those tenements because they are called 'leases' and a leasehold estate is a familiar concept in the law of real property. This nomenclature was adopted without the benefit of the High Court's statement in TEC Desert that mining tenements under the Mining Act are in the nature of personalty, not realty. In my opinion, the word 'estate' in the Mining Act, in particular in s 97(2) and s 97(3) and in the compound expressions 'estate and interest' and 'estate or interest' in s 103C(8) and s 113, refers solely to 'estates' in mining leases or general purpose leases.
Section 82(1)(d) provides, relevantly, that every mining lease is deemed to be granted subject to the condition that the lessee shall not 'transfer or mortgage a legal interest' in the land the subject of the lease without the prior written consent of the Minister (emphasis added). Section 103C relates to the registration of a limited class of instruments, including a 'dealing' and 'a discharge of a mortgage of a legal interest in a mining tenement' (emphasis added). See s 103C(1)(a) and (b). The term 'dealing' means 'a transfer or mortgage of a legal interest in a mining tenement' (emphasis added). See s 8(1). Section 103C(8) provides that a 'dealing' does not pass any 'legal estate or interest' in a mining tenement until it is registered in accordance with s 103C (emphasis added). By s 119(2), a 'legal or equitable interest in or affecting a mining tenement' is not capable of being created, assigned, affected or dealt with, whether directly or indirectly, except by an instrument in writing signed by the person creating, assigning or otherwise dealing with the interest (emphasis added). Section 119A(2) provides that if there are two or more mortgages affecting 'the same legal interest' in a mining tenement, the mortgages take priority according to the time and date of their registration (emphasis added).
In my opinion, the word 'legal', in the definition of 'dealing' in s 8(1) and in s 82(1)(d), s 103C(1)(b), s 103C(8), s 119(2) and s 119A(2), refers to the proprietary interest of:
(a)the holder of the tenement in question or a share in it (either as grantee or transferee); or
(b)the holder of a mortgage of the tenement in question or a share in the mortgage (either as original mortgagee or transferee),
which has been created or evidenced in writing (see s 119(2)) and particulars of which have been entered on the Register.
In my opinion, the numerous references in the Mining Act to an 'equitable interest' or a 'beneficial interest' in connection with a mining tenement are to a proprietary interest in the tenement in question which is not a 'legal estate or interest' in the sense I have just explained.

What is the proper construction of s 64 of the Mining Act?

At common law (that is, independently of s 19 of the Interpretation Act), this court is permitted, in construing a statutory provision, to have regard to the words used by Parliament in their legal and historical context and, if appropriate, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context. The context includes reference to the legislative history of the provision and any relevant reports of law reform bodies which describe the matters requiring legislative reform. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ); Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 112 ‑ 113 (McHugh J).
Section 64 of the Mining Act, as originally enacted, provided:
(1) The holder of an exploration licence shall not transfer the exploration licence at any time during the first year of the term for which it was granted.
(2) The Minister may consent or refuse to consent to any application for the transfer of an exploration licence made at any time after the first year of the term of the exploration licence.
On 11 July 1983, the Government of Western Australia established a committee under the chairmanship of Mr MW Hunt to inquire into aspects of the Mining Act.
In his report Mr Hunt made the following observations about s 64 as originally enacted:
In my view the policy of the Act relating to exploration licences is such that it envisages some form of Ministerial control over their grant and disposal. The Act's intention is that whereas prospecting licences are granted by the warden and may be freely traded, an exploration licence … is granted by the Minister. Consistent with this policy it seems to me that some form of Ministerial control over dealings in exploration licences … is necessary. In the case of exploration licences I think the control is necessary because of the large area of land involved and the requirement that the holder of an exploration licence submit a programme of work …
However, I am concerned that this is not really a function which should take the time of the Minister and I think that it should be specifically contemplated that consent to a transfer of an exploration licence may be given by an officer of the Department acting with the authority of the Minister ‑ as appears to be contemplated by Section 82(l)(d) in relation to a mining lease.
Mr Hunt expressed the view that s 64 as originally enacted was defective in several respects:
First, it applies only to a transfer, not to a dealing. It seems to me illogical to prevent transfers without preventing dealings. The same effect can be achieved by an equitable dealing as by a transfer (save only for the process of moving legal title in the Mines Department register). I consider that the provision requiring Ministerial consent should be made effective and expanded to encompass all dealings (legal or equitable). To avoid difficult issues which can arise from contracts made conditional upon consent, I suggest that the Act contemplate the possibility of entering validly into an agreement with a condition subsequent relating to Ministerial approval.
Secondly, I consider that the blanket prohibition against any dealing in the first twelve months is undesirable. I accept the policy decision that as a general rule exploration licences should not be transferred in the first year because the licence has been granted on the basis of an approved programme. The licence holder should be expected to conform with that approved programme at least during the first year of the term. However, to impose a blanket provision without any discretion at all to permit a transfer is to ignore events such as death or bankruptcy of the tenement holder or liquidation or receivership of the tenement holder (if a company).
Thirdly I consider it is most undesirable and not in the interests of industry or government for a requirement for Ministerial consent to be included in the Act without any indication in the Act or Regulations as to the factors which will influence the granting or withholding of consent. (emphasis added)
The Mining Amendment Act 1985 (WA) repealed s 64 as originally enacted and replaced it with a provision which was intended to give effect to Mr Hunt's recommendations. See the second reading speech of the Minister for Minerals and Energy, Mr Parker, in relation to the Mining Amendment Bill 1985: Western Australia, Parliamentary Debates, Legislative Assembly, 13 March 1985, pp 884 ‑ 889. The new s 64 read:
(1) During the first year of the term for which an exploration licence is granted, a legal or equitable interest in or affecting an exploration licence shall not be transferred or otherwise dealt with, whether directly or indirectly, unless ‑
(a)the dealing arises in the due administration of the estate or affairs of a holder ‑
(i)who is dead;
(ii)who is a person who is an insolvent under administration within the meaning of the Companies (Western Australia) Code;
(iii)who is otherwise incapacitated at law; or
(iv)which is in the course of being wound up (not being a voluntary winding up); or
(b)prior written consent to the dealing is given by the Minister or an officer of the Department acting with the authority of the Minister.
(2) Nothing in subsection (1) of this section prevents, or affects the validity of, any agreement made in contemplation of a dealing to which that subsection applies where the agreement expressly provides that the consent required by that subsection is to be obtained as a condition of the dealing.
Amendments to the new s 64 were made by the Mining Amendment Act 1993 (WA), the Mining Amendment Act 1996 (WA) and the Corporations (Consequential Amendment) Act 2001 (WA).
The critical part of s 64(1) as currently enacted, for present purposes, states that 'a legal or equitable interest in or affecting [an] exploration licence shall not be transferred or otherwise dealt with, whether directly or indirectly' during the first year of the term for which the exploration licence is granted.
In Anaconda Nickel, Ipp J (Pidgeon J agreeing) examined the consequences where the holder of an exploration licence enters into an agreement which involves a purported transfer or other dealing with an equitable interest in or affecting the exploration licence, in breach of s 64(1) of the Mining Act. The majority held that no legal or equitable interest in or affecting the exploration licence in question was purportedly transferred or otherwise dealt with in that case by the agreement between the parties [104] ‑ [105]. However, Ipp J went on to consider the position if, contrary to his opinion, the agreement in question did purport to transfer or otherwise deal with an equitable interest in or affecting the exploration licence. His Honour held that, in those circumstances, the agreement was 'not thereby rendered either illegal or ineffective' [106].
Ipp J said:
(a)the purpose of s 64(1) is to prevent, during the first year of the term for which an exploration licence is granted, the transfer of or dealing with a legal or equitable interest in or affecting the exploration licence; and
(b)s 64(1) does not provide that an agreement which purports to transfer or deal with an exploration licence during the first year of the term, in contravention of the prohibition, is otherwise invalid or of no force [107].
See also Hancock Prospecting [146].
Ipp J rejected the proposition that it is implicit in s 64(2) that agreements transferring or otherwise dealing with exploration licences within the first year of their terms are invalid unless s 64(2) applies to the agreements [107]. Section 64(1), in its terms, is concerned with dealings and not contracts [107].
His Honour added:
(a)the making of an agreement may itself constitute a dealing;
(b)it is readily arguable that s 64(2) renders valid any such dealing and it does not have any other effect whatever;
(c)it was unnecessary, however, to express a final opinion on the point, it being sufficient to note that s 64(2) is concerned only to make it clear that an agreement to which the subsection applies is not affected by s 64(1) [107].
In Terrex Resources NL v Magnet Petroleum Pty Ltd (1988) 1 WAR 144, the Full Court of the Supreme Court of Western Australia held that, by virtue of s 80 of the Petroleum (Submerged Lands) Act 1967 (Cth), an oral agreement was ineffective to create or assign any interest in a petroleum permit, but the oral agreement could create personal rights in contract. Section 80 was similar to, but not identical with, s 64(1) of the Mining Act. By s 80, relevantly:
A legal or equitable interest in or affecting an existing … permit … is not capable of being created, assigned, affected or dealt with, whether directly or indirectly, except by an instrument in writing.
Kennedy J observed:
The appellant's contention was that, in the absence of an instrument in writing, the agreements were ineffective. But that contention appears to me to gloss the statute. The purpose of s 80 is to prevent legal or equitable interests in permits from being created, assigned, affected or dealt with, whether directly or indirectly, except by an instrument in writing. It does not provide that oral agreements shall be of no force: cf s 81(2). Accordingly, although an oral agreement may not, for example, assign an interest in a permit, this is not to say that it does not create a personal right in contract. I consider that it does ‑ cf Adamson v Hayes (1973) 130 CLR 276 at 297, 304, 306, 319-320, the note by RP Austin, 'The Conveyancer: Moot Point' (1974) 48 ALJ 322 at 324 and NC Seddon, 'Contracts for the Sale of Land: Is a Note or Memorandum Sufficient?' (1987) 61 ALJ 406 (162).
Section 64(1) of the Mining Act is to be compared to and contrasted with s 82(1)(d) of the Act, which provides, relevantly, that every mining lease is deemed to be granted subject to the condition that the lessee shall not 'transfer or mortgage a legal interest in [the land in respect of which the lease is granted] or any part thereof without the prior written consent of the Minister … '. Section 82(1)(d), unlike s 64(1), does not contain a prohibition by Parliament against dealings of the kind referred to in the provision. Rather, by s 82(1)(d), every mining lease is deemed to contain a condition in terms of s 82(1)(d). The effect of s 82(1)(d) is that a breach of the provision will constitute a breach of the mining lease. It has no other consequence. See Anaconda Nickel [108].
I will now address three issues concerning the proper construction of s 64 of the Mining Act. First, what is the meaning of the expressions 'transferred' and 'otherwise dealt with' in s 64(1)? Secondly, is an agreement to transfer or otherwise deal with a legal or equitable interest in or affecting an exploration licence, which is entered into during the first year of the term for which the exploration licence is granted and which expressly provides (in accordance with s 64(2)) that the consent required by s 64(1) is to be obtained as a condition of the dealing or other transaction, capable of creating, transferring or disposing of a legal or equitable interest in or affecting the exploration licence before the consent is obtained? Thirdly, is a purported actual 'transfer of' or 'other dealing with' a legal or equitable interest in or affecting an exploration licence, made in breach of the express prohibition in s 64(1), illegal and void? I will consider each of these issues in turn.
The word 'transfer', in its ordinary and natural meaning and in the context of property, has a broad connotation. See Gathercole v Smith (1881) 17 Ch D 1, 7 (James LJ), 9 (Lush LJ); Fasken v Minister of National Revenue [1949] 1 DLR 810, 821 ‑ 822 (Thorson P); Eastern Management Ltd v City of Halifax (1970) 17 DLR (3d) 183, 188 (McKinnon CJNS, Coffin & Cooper JJA). It is not a term of art and it does not have a technical meaning. The word 'transfer', in its ordinary and natural meaning and in the context of property, does not contemplate or require that a transfer of property should be made in a particular form or that it should be made directly to the transferee. All that is necessary is that the transferor should so deal with the property in question, or an estate or interest in it, so as to divest the transferor of the relevant property, estate or interest and vest it in the transferee. The means by which this passing of property is accomplished, whether direct or indirect, may properly be described as a transfer. See Fasken (822).
In Coles Myer Ltd v Commissioner of State Revenue (Vic) [1998] 4 VR 728, Ormiston JA (Winneke P agreeing) observed:
Although the word 'transfer' is not a term of art and is a word of wide connotation, to my way of thinking it is the passing of rights to another, so as to vest them in that other person, which is essential to a transfer, properly understood. It is not a mere disposition, a ridding oneself of the right or interest, it is the vesting in the transferee of that right or interest, precisely or substantially, which is necessary to effect a transfer, as ordinarily understood in the law (740).
Ormiston JA made those observations in the course of deciding that the 'extinguishment' or 'extinction' of an interest in property did not involve the 'transfer' of the interest. His Honour said, 'however broadly the word "transfer" be defined, it requires at the least that the transferee should, at the end of the transaction, have substantially the same right or interest in the subject matter as did the transferor before the transfer took place' (740).
The word 'dealing', in its ordinary and natural meaning and in the context of property, has a very wide ambit. It includes a 'transfer' of property. The word 'dealing', in its ordinary and natural meaning and in the context of property:
(a)does not contemplate or require that a dealing in property should be made in a particular form;
(b)has a broader connotation than the word 'transfer'; and
(c)includes the creation of an interest in property.
A person may 'deal with' an interest in property without the relevant interest being transferred to another person; for example, by entering into a transaction which involves the renunciation or relinquishment of the interest.
Where the word 'transfer' or 'dealing', or any cognate form of the word, appears in a statute, the meaning to be given to the word depends upon the context.
The Mining Act does not define the word 'transferred', as used in s 64(1), or any cognate words (for example, 'transfer').
The Act does not define the words 'dealt with' as used in s 64 but, as I have mentioned, the word 'dealing' is defined in s 8(1). The definition of 'dealing' applies throughout the Act 'unless the contrary intention appears'. By s 9 of the Interpretation Act, where a word is defined in a written law, other parts of speech and grammatical forms of that word have corresponding meanings.
The word 'dealing', and cognate forms of that word, are used in numerous provisions of the Act in connection with mining tenements. The relevant provisions, where the word 'dealing' or a cognate form of that word is used and details of the statute which inserted the word, are as follows:
(a)In s 8(1), 'dealing' is defined to mean 'a transfer or mortgage of a legal interest in a mining tenement'. The definition was inserted by the Mining Amendment Act 1996.
(b)Section 56A(7) states, relevantly, that no legal or equitable interest in or affecting a special prospecting licence, or a mining lease in respect of the land or any part thereof the subject of a special prospecting licence, is capable of being 'created, affected or dealt with, whether directly or indirectly, except with the prior written consent of the holder of the primary tenement'. The words 'dealt with' were inserted by the Mining Amendment Act 1985. The provision was amended to its current form by the Mining Amendment Act 1996.
(c)In s 64, the references to 'dealt with' and 'dealing' were inserted by the Mining Amendment Act 1985.
(d)Section 85B(5), which relates to special prospecting licences on land the subject of mining leases, is similar to s 56A(7). The words 'dealt with' were inserted by the Mining Amendment Act 1993. The provision was amended to its current form by the Mining Amendment Act 1996.
(e)Section 103C relates to the registration of a limited class of instruments including a 'dealing'. See s 103C(1)(a). By s 103C(8), a 'dealing' does not pass any legal estate or interest in a mining tenement or in any way charge or encumber a mining tenement until it is registered in accordance with s 103C(8). Section 103C was inserted by the Mining Amendment Act 1996.
(f)Section 103EA(2) provides that while a tax memorial registered against a mining tenement is in effect, 'no dealing affecting the mining tenement' is to be lodged or registered without the consent of the Commissioner of State Revenue. This provision was inserted by the Revenue Laws Amendment Act 2008 (No 2) (WA).
(g)Section 103E provides that '[d]ealings affecting the same mining tenement' take priority according to the date and time of their registration. Section 103E was inserted by the Mining Amendment Act 1996.
(h)Section 119(2) provides that a legal or equitable interest in or affecting a mining tenement 'is not capable of being created, assigned, affected or dealt with, whether directly or indirectly, except by an instrument in writing signed by the person creating, assigning or otherwise dealing with the interest'. This provision was in the original Act.

It was not suggested, either before the Tribunal or this court, that in the present case par (a) or par (b) of s 64(1) applied. The prior written consent of the Minister, or an officer of the Department acting with the authority of the Minister, was not obtained on or before the Relevant Date to a legal or equitable interest in or affecting the Fourth Tenement being transferred or otherwise dealt with, whether directly or indirectly, by or pursuant to the Option Deed.
Section 64(2) did not apply in the present case because the Option Deed did not 'expressly provide' that the consent required by s 64(1) was to be obtained 'as a condition of the dealing or other transaction'. It is true that cl 4.3 stated, relevantly, that 'if on Settlement any part of the Interest is not a granted tenement or ministerial consent is required to transfer any part of the Interest [Sacculus] will hold that part of the Interest on trust for [Anuman] until such time as the tenement is granted and any necessary ministerial consent is obtained'. However, that provision, on its proper construction, purported to create a trust in respect of the application for the Fourth Tenement and, upon grant, the Fourth Tenement. Clause 4.3 imposed on Sacculus, relevantly, an obligation, upon the Fourth Tenement being granted, to hold the tenement on trust for Anuman until 'any necessary ministerial consent is obtained' to Sacculus transferring the tenement to Anuman. Neither cl 4.3 nor any other provision of the Option Deed contained an express provision, within s 64(2), that the consent required by s 64(1) was to be obtained as a condition of:
(a)the creation of the trust; or
(b)any other dealing or any other transaction, effected or to be effected by or pursuant to the Option Deed, that was expressly prohibited by s 64(1).
In any event, even if cl 4.3 or any other provision of the Option Deed contained an express provision, within s 64(2), that the consent required by s 64(1) was to be obtained as a condition of the dealing or transaction, the dealing or transaction was not capable of creating, transferring or disposing of a legal or equitable interest in or affecting the exploration licence before the consent was obtained. See [138] above.
The rights relevantly granted to Anuman under the Option Deed did not include, at the Relevant Date, an 'estate' (within the meaning of that term in the Mining Act) in the Fourth Tenement. As I have explained, the concept of an 'estate' under the Mining Act is confined to mining leases and general purpose leases. See [78] and [87] above.
The rights relevantly granted to Anuman under the Option Deed did not include, at the Relevant Date, an 'interest' in the Fourth Tenement in that, in the circumstances and by virtue of s 64 as I have construed it, the Option Deed, the Option Notice and any other instruments in writing executed by either or both of Sacculus and Anuman were ineffective to create, transfer to or confer on Anuman, either before or after Settlement and the payment of the Purchase Price, any proprietary rights over, affecting or in connection with the Fourth Tenement.
It is true that nothing in s 64(1) rendered illegal or unenforceable any personal rights in contract created by the Option Deed, the Option Notice and any other instruments in writing executed by either or both of Sacculus and Anuman. However, Anuman's rights, at the Relevant Date, did not include any proprietary rights over, affecting or in connection with the Fourth Tenement. Any right which Anuman may have had to apply to the court for specific performance or injunctive relief in relation to any obligation of Sacculus to use its reasonable endeavours to obtain the consent of the Minister under s 64(1) was not a proprietary right. See McWilliam (660 ‑ 661, 662); Brown v Heffer (350, 351 ‑ 352); Hancock Prospecting [166] ‑ [175], [189] ‑ [193].

By cl 5.2 of the Option Deed, Sacculus was obliged for the duration of the option and, if exercised, until Settlement to keep the Mining Interests in good standing and, relevantly, to pay all 'expenditures and work required'. That is, until Settlement, Sacculus was bound to comply with the prescribed expenditure conditions applicable to the Fourth Tenement. On a proper construction of the Option Deed in the context of the Mining Act as a whole, after Settlement (including while Sacculus remained the registered holder of the Fourth Tenement) Anuman was obliged, as between Sacculus and Anuman, to comply with the prescribed expenditure conditions. Further, on a proper construction of cl 4.5 and cl 4.6 of the Option Deed, in the context of the Option Deed and the Mining Act as a whole, during any period after Settlement while Sacculus remained the registered holder of the Fourth Tenement, Sacculus authorised Anuman under s 118A of the Mining Act to carry out 'mining' on the land the subject of the tenement. However, as a consequence of the application of s 64(1), at the Relevant Date that authorisation conferred only personal rights in contract and did not include any proprietary rights over, affecting or in connection with the Fourth Tenement.

Conclusion

I would grant the Commissioner leave to amend the original grounds of appeal by adding the new ground 1A and reformulating ground 2. However, the grounds as amended have not been made out. The appeal must be dismissed.
NEWNES JA: I too would grant the Commissioner leave to amend the grounds of appeal but would dismiss the appeal, for the reasons given by Buss JA.
MURPHY JA:

Introduction

This is a stamp duty appeal concerning the 'land rich' provisions of the Duties Act 2008 (WA).
The respondent acquired shares in Anuman Holdings Pty Ltd (Anuman) on 18 May 2011 (the 'relevant date'). As a result of the acquisition the respondent held 53.4% of the shares in Anuman. If Anuman was a 'landholder' within the meaning of s 148 of the Duties Act at the relevant date, the acquisition would involve a 'relevant acquisition' under s 148 for the purposes of ch 3 of the Duties Act. Section 151 of the

Duties Act provides for the imposition of duty in respect of any 'relevant acquisition'.

The relevant statutory and factual background have been set out by Buss JA, which I gratefully adopt.
The issue raised for consideration is whether, as at the relevant date, Anuman had an 'estate or interest in a mining tenement', being, relevantly, an exploration licence, within the meaning of par (ca) of the definition of 'land' in s 3 of the Duties Act.
The words 'estate or interest' have a proprietary connotation and, at least ordinarily, no one with a right which is a mere personal right could have an 'estate or interest': R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327, 342. The word 'estate' no doubt signifies a type of proprietary interest, including 'chattels real', ie, leasehold: cf Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186 [202]. It may be that Parliament intended the word 'estate' in par (ca) to describe the holder's interest in a mining lease or general purpose lease. However that may be, the point is that the word 'estate' does not signify a merely personal right in this context. Further, the definition of 'estate' in s 5 of the Interpretation Act 1984 (WA) can have no application as it applies, in terms, in relation to land, and mining tenements are in the nature of personalty: TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49; (2010) 241 CLR 576 [27] ‑ [47].
Accordingly, the real, single, issue in the appeal is whether as at the relevant date, Anuman had an interest in exploration licence EL 51/1367 (also referred to in the reasons of the primary court as the 'fourth tenement'). In this regard it is to be recalled that prior to 2010, Sacculus Pty Ltd (S) had applied for certain exploration licences, which included, relevantly, an application designated ELA 51/1367.
On 8 March 2010, S granted an option to Anuman to acquire certain 'interests', including ELA 51/1367. On 9 March 2010, Anuman exercised the option. Under the contract for sale resulting from the exercise of the option, Anuman was to pay the purchase price ($50,000) at settlement. Settlement occurred five business days later, ie, by about mid‑March 2010. Exploration licence EL 51/1367 (pursuant to application ELA 51/1367) was issued some months after settlement, on 14 July 2010.

Exploration licence

An exploration licence, once granted, is property in the sense of a legal chose in action, although it does not give rise to an estate or interest in land: Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216; (2012) 45 WAR 29 [72] ‑ [73]. An exploration licence has a 'proprietorial character': Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101 [103]. Rights having a connection with land may be characterised as proprietary in character without being an interest in land: see, eg, Uniting Church in Australia Property Trust (NSW) v Immer (No 145) Pty Ltd (1991) 24 NSWLR 510, 511.
It has been held, in effect, that an application for a prospecting licence is not itself capable of assignment or transfer and that until grant, a prospecting licence is, for the purposes of the law of assignment, future property or an expectancy: Watson v National Companies and Securities Commission [1988] WAR 332, 338 ‑ 339. The appellant submitted, and it may be accepted, that the same observations apply to an exploration licence.

Equitable interests

The result is that, subject to a consideration of s 64 of the Mining Act 1978 (WA), under the general law a purported immediate assignment of an exploration licence, prior to grant, for valuable consideration which has been fully satisfied, would be treated, in equity, as an assignment of the exploration licence as soon as the licence came into existence, with the assignor thereupon holding the exploration licence as trustee for the assignee: Watson (339); Palette Shoes Pty Ltd (in liq) v Krohn [1937] HCA 37; (1937) 58 CLR 1, 16, 27; Associated Alloys v ACN 001 452 106 Pty Ltd [2000] HCA 25; (2000) 202 CLR 588 [28]; Booth v The Commissioner of Taxation of the Commonwealth of Australia [1987] HCA 61; (1987) 164 CLR 159, 165 ‑ 166; McIntyre v Gye [1994] FCA 1009; (1994) 51 FCR 472, 480 ‑ 481. The trust thereby created, once the property comes into existence, would answer the description of a bare trust: Herdegen v Federal Commissioner of Taxation [1988] FCA 419; (1988) 84 ALR 271, 281 (Gummow J). (Even before the property in question comes into existence under this equitable doctrine, it has been said that the assignee's prospective rights are 'more than equitable rights in personam': McIntyre (482).)
The trust referred to above, which arises once the future property comes into existence, is essentially the same character as the trust which is impressed upon a vendor who retains legal title after the sale of property where the purchaser has paid the purchase price in full: McWilliam v McWilliams Wines Pty Ltd [1964] HCA 6; (1964) 114 CLR 656, 660; Chang v Registrar of Titles [1976] HCA 1; (1976) 137 CLR 177, 185, 189 ‑ 190.
In each of the above situations, the full beneficial ownership of the property vests in the assignee or purchaser (as the case may be).
That position may be contrasted with that of a purchaser under an executory contract for sale of land which is unconditional in the sense that there is no condition requiring some third party action which is ultimately beyond the control of the purchaser. In such a case, the purchaser has an equitable interest in the land commensurate with the purchaser's ability to specifically enforce the contract: Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604, 612; KLDE Pty Ltd (in voluntary liq) v Commissioner of Stamp Duties (QLD) [1984] HCA 63; (1984) 155 CLR 288, 297; Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; (2003) 217 CLR 315 [53]; Halloran v Minister Administering National Parks and Wildlife Act 1974 [2006] HCA 3; (2006) 229 CLR 545 [93]; Black v Garnock [2007] HCA 31; (2007) 230 CLR 438 [32]; Hancock Prospecting [129]; and Sonenco (No 77) Pty Ltd v Silvia [1989] FCA 89; (1989) 24 FCR 105, 125 (Ryan & Gummow JJ).
The nature of the equitable interest of a purchaser under an unconditional, executory contract is, however, not that of full beneficial ownership, although it has been described as an interest 'in progress towards' that: Haque v Haque (No 2) [1965] HCA 38; (1965) 114 CLR 98, 124 (Kitto J). It has also been described as a 'special equitable interest': Zhu v Treasurer of NSW [2004] HCA 56; (2004) 218 CLR 530 [141]. See in this regard Kern Corporation Ltd v Walter Reid Trading Pty Ltd [1987] HCA 20; (1987) 163 CLR 164, 191 ‑ 192 (Deane J) cited with approval in Stern v McArthur [1988] HCA 51; (1988) 165 CLR 489, 522 (Deane & Dawson JJ); Road Australia Pty Ltd v Commissioner of Stamp Duties [1999] QCA 328; [2001] 1 Qd R 327 [19] ‑ [23]; Gasparin v Federal Commissioner of Taxation [1994] FCA 1057; (1994) 50 FCR 73, 81; Mt Newman Mining Co Pty Ltd v Commissioner of State Taxation (WA) (1994) 11 WAR 413, 419 (Kennedy J).
By way of extension of that reasoning, an optionee, in respect of, at least, an option (for value) giving the optionee an unconditional right to purchase land, is regarded as having an equitable interest in the land even prior to the exercise of the option: Ballas v Theophilos [No 2] [1957] HCA 90; (1957) 98 CLR 193, 208 ‑ 209; Commissioner of Taxes (Queensland) v Camphin [1937] HCA 30; (1937) 57 CLR 127, 132 ‑ 133; Laybutt v Amoco Australia Pty Ltd [1974] HCA 49; (1974) 132 CLR 57, 75 ‑ 76; Re Anroma Pty Ltd (1986) 2 Qd R 134, 152 (McPherson J); Hancock Prospecting [134]; MacKay v Wilson (1947) 47 SR (NSW) 315, 325 (Street J). Although the interest is contingent rather than vested, it is nevertheless an interest in land.
Yet a further question arises in relation to an uncompleted contract for the sale of land which is subject to an unfulfilled condition, where the condition itself is not one which the vendor is obliged, himself or herself, to fulfil. In that situation the contract is not amenable to an unconditional order for specific performance as the condition might, without fault on the part of the purchaser, not be fulfilled. Nevertheless, in an appropriate case a declaration may be made that the contract should be carried into execution, together with an order that, to that end, the vendor do whatever may be reasonably required by the purchaser to bring about fulfilment of the condition, together with an order than upon satisfaction of the condition, the contract be specifically performed by the vendor: Butts v O'Dwyer [1952] HCA 74; (1952) 87 CLR 267, 289 ‑ 290; Kennedy v Vercoe [1960] HCA 64; (1960) 105 CLR 521, 529 ‑ 531; Booker Industries Pty Ltd v Wilson Parking (QLD) Pty Ltd [1982] HCA 53; (1982) 149 CLR 600, 606; Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; (1982) 149 CLR 537, 566; Bahr (612). See also Dougan v Ley [1946] HCA 3; (1946) 71 CLR 142, 152 (Dixon J).
The purchaser under such a conditional contract for sale of land (or a contract which, if not expressly conditional, requires third party action before completion) has also been regarded, in an appropriate case, as having a contingent interest in the land which is capable of being supported by a caveat: Kuper & Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419, 432; Re Henderson's Caveat [1998] 1 Qd R 632, 637 ‑ 638, 642; Jessica Holdings Pty Ltd v Anglican Property Trust Diocese of Sydney (1992) 27 NSWLR 140, 152; Forder v Cemcorp Pty Ltd [2001] NSWSC 281; (2001) 51 NSWLR 486, 491 ‑ 492; Cousins Securities Pty Ltd v CEC Group Ltd [2007] QCA 192; [2007] 2 Qd R 520 [44]; Sanctuary Investments Pty Ltd v St Gregory's Armenian School Inc [1998] NSWSC 788, Young J. The same reasoning has also been applied to an option with respect to a conditional contract for purchase of land: GPT RE Ltd v Lend Lease Real Estate Investments Ltd [2005] NSWSC 964; (2005) 12 BPR 23, 217 [62] ‑ [63]; and on appeal: Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207 [35] (Spigelman CJ, McColl and Basten JJA agreeing). (It may be noted that the Mining Act also contains provisions enabling a person claiming to have an interest in a mining tenement to lodge a caveat: pt VI of the Mining Act.)
The authorities in the preceding paragraph, at least in large measure, draw support from the observations of Mason and Deane JJ in Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406, 446; Deane and Dawson JJ in Stern (522); Mason CJ, Brennan, Deane and McHugh JJ in Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242, 253; and Mason CJ and Dawson J in Bahr (612). Those observations, in turn, were influenced by certain observations made by Sir Frederick Jordan in ch V of his 'Chapters on Equity in New South Wales' (6th ed, 1947), 52: see Tanwar [56]. The meaning and effect of Sir Frederick Jordan's observations have been the subject of some controversy - see particularly the criticism by Meagher JA in Chief Commissioner of Stamp Duties (NSW) v ISPT Pty Ltd (1998) 45 NSWLR 639, 654 ‑ 655. Meagher JA said that Sir Frederick Jordan's statement in 'its expanded form … means that a contract of sale of land to which a Minister's consent is required would effect a total assignment of the beneficial interest in the land' (655). See also 'Sir Frederick Jordan's Footnote' by Meagher JA in (1999) 15 JCL 1. Ultimately, the question of what constitutes an 'interest' often arises in the context of the proper construction of a particular statute or contract: cf Hancock Prospecting [164] ‑ [175].
The controversy has entailed a consideration of McWilliam, and a case which followed it, Brown v Heffer [1967] HCA 40; (1967) 116 CLR 344. In McWilliam, the owner of the beneficial interest in an irrigation farm lease, held under a bare trust, agreed to sell his interest to a purchaser. The purchaser gave the consideration for the purchase in full, and, subsequently, sought a declaration that the vendor held his beneficial ownership of the lease on trust for the purchaser. However, the transaction was affected by a particular statute which provided that a transfer or other dealing in the lease should not be effected and, if effected, should not be valid for any purpose whatsoever unless the relevant government authority granted its consent. On and after settlement of the purchase, including up to the time of judgment at trial, the relevant authority had not granted its consent. The High Court held that by reason of the operation of the statute, the purchaser could not obtain a declaration that the vendor held the beneficial ownership of the lease on trust for the purchaser, even though the purchase price had been paid in full. As the statute prohibited any dealing with the lease without the authority's consent, the purchaser's rights were only to compel the vendor to 'do all such things as might be necessary to obtain the consent' of the relevant authority (661).
In Brown, a testator devised certain land to the respondent. The testator left his residuary estate to the appellant. Before the testator died, he entered into an agreement to sell the land to a third party. The sale was conditional upon ministerial consent. The testator died before ministerial consent was obtained. The question was whether the appellant took under the will as residuary legatee, on the basis that the specific gift of realty had been adeemed, or whether the respondent took as specific devisee.
The trial judge, Hardie J, held that prior to the grant of ministerial consent, the legal and equitable estate vested in the testator and, accordingly, the specific devise was capable of taking effect on his death: Re Webster, Deceased; Brown v Heffer (1967) 85 WN (pt 1) 434, 436 ‑ 437. Hardie J's decision was upheld in the High Court. Barwick CJ, McTiernan, Kitto and Owen JJ held that ademption of a specific gift occurs where the property the subject of the gift is, at the testator's death, no longer his to dispose of, and that ademption also occurs where the property has been so dealt with that by the rules of equity, it must be considered at the death as having been converted into other property, such as money, which the words of the gift are not apt to comprehend: Brown (348).

Their Honours, with reference to McWilliam, said that the specific performance which would be granted before the Minister's consent had been obtained would not be specific performance of the obligation to convey or transfer the property, for that obligation had not yet arisen. Until consent had been obtained, the purchaser's interest, being commensurate only with what would be decreed to him, would not extend to ownership of land, and the interest of the vendor is not yet converted into a right to receive money in place of the land. It followed that the land, not having been converted into money under the principles of equity during the testator's lifetime, was still his to dispose of at his death, though even then it was bound by a contract which, if the Minister's consent should thereafter be obtained, would become a contract of sale with the result that the respondent, as devisee, would, in the end, only receive the purchase money (350).
Windeyer J said that he entirely accepted the analysis of the proprietary rights at law and in equity in the judgment of the plurality (350). His Honour said that the purchaser's rights to have the testator and his executor do nothing to the purchaser's prejudice were enforceable in equity by injunction, but did not create 'an equitable interest in the land'. His Honour observed that had the Minister consented to the sale before the testator died, the proceeds of the sale would have gone into the residuary estate whenever the contract was, in fact, completed by transfer of payment. His Honour said that it seemed 'capricious' that the effect of a will could depend upon whether the Minister put his signature on a document the day before or after the man died - when the Minister's act, whenever done, would make 'operative' the instrument which the deceased had executed before his death. His Honour added that although 'I confess that I cannot rid myself of some misgivings, I agree that the appeal should be dismissed' (351 ‑ 352).
In that case the ministerial consent was given after the testator died. Windeyer J said that the result was that the giving of the ministerial consent had 'a kind of retroactive effect', making the instrument of sale 'effective' as from the date of the grant of ministerial consent (352). The word 'effective' appears to refer to the instrument of sale then being specifically enforceable for the transfer of the land so that only then would equity treat the gift as having been converted into other property, relevantly money, for the purposes of the law of ademption. It would not seem to me that his Honour was departing, in any material way, from the reasoning of the plurality. In Zhu, the court referred to Windeyer J's observations as indicating that contractual rights may be protected by injunction, even though they create no proprietary right [158].
In Tanwar [57], Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ noted the controversy but did not resolve it.
Nor is it necessary to reach any concluded view about those matters for the purpose of the disposition of this appeal, because, as at the relevant date, Anuman was not a purchaser for value under an executory, conditional, contract for sale. In this case, Anuman was in the position of a purchaser who had, for valuable consideration prior to the grant of EL51/1367, fully satisfied the consideration for its purchase (see cl 4.2 ‑ cl 4.6 of the option deed; cf Anroma (149)). Subject to a consideration of s 64 of the Mining Act, Anuman was in the position of a beneficiary under a bare trust with respect to EL 51/1367 as at the relevant date.

Section 64 of the Mining Act

The following observations may be made concerning s 64(1) of the Mining Act. First, it is not a prohibition on the 'holder' transferring or dealing with a legal or equitable interest during the first year of the licence period. Rather (and subject to its specified exceptions), the prohibition is expressed in terms that a legal or equitable interest in or affecting an exploration licence 'shall not be' transferred or otherwise dealt with during the first 12 month period. Secondly, under s 64(1) it is the transferring or otherwise dealing in or affecting a legal or equitable interest which is prohibited during the first year. It is not merely concerned with transactions entered into in the first year. Thirdly, the word 'transfer' would appear, in this context, to have the familiar meaning referred to by McLure P in Hancock Prospecting [125]. It means to convey or remove the relevant interest from one person to another so that after the arrangement in question, the transferee should own substantially the same property as the transferor had before the arrangement. The word 'transfer' does not include the creation of an interest. Fourthly, in their ordinary meaning, the words 'otherwise deal with' are apt to include any arrangement (whenever entered into) which would have the effect of vesting beneficial ownership in a person other than the grantee of the exploration licence during the first year. See, eg, in this regard McWilliam (660), where the relevant statute referred to 'transfer or other dealing'. That construction of the words 'otherwise deal with' would also serve the evident purpose of s 64.
In my view, s 64(1) operated to prevent beneficial ownership immediately vesting in Anuman upon grant of EL 51/1367. The option deed was not, however, illegal: Anaconda [98] ‑ [110], [182]; Hancock Prospecting [146]. The effect of the prohibition would not extend beyond the first year of the licence or earlier grant of ministerial approval to Anuman under s 64(1)(b) of the Mining Act.
A question then arises as to whether even that right, although not a subsisting full beneficial interest, would nevertheless be regarded as proprietary in character as at the date of grant of the licence. Given the potential for circuity of reasoning in this area (see, eg, Burns Philp Trustee Co Ltd v Viney [1981] 2 NSWLR 216, 223; Meagher RP, Heydon JD and Leeming MJ, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (4th ed, 2002) [4‑010]), a consideration of that question may be assisted by a consideration of what rights Anuman might have against third parties in the first 12 month period of the licence. (See Equity: Doctrines & Remedies [40‑015].)
That question may arise in the hypothetical context where S, within the first 12 months, agreed to transfer EL 51/1367 to X, for valuable consideration, subject to ministerial consent, and ministerial consent was given within that period. Assuming that no equitable interest would be created in X until the Minister consented, Anuman's position, pending ministerial consent, would not be materially prejudiced by S merely entering into such a transaction. However, once ministerial consent for the sale to X was given, questions of priority would arise as between Anuman and X if Anuman had an equitable interest in the licence in the first year: cf Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) [1965] HCA 17; (1965) 113 CLR 265 and Equity: Doctrines & Remedies [4‑150] ‑ [4‑175].
Even in that situation, an assertion of an effective prior equitable interest in Anuman would serve to undermine ministerial control of the licence in the first 12 month period. Ultimately, the matter turns upon the meaning and effect of s 64(1) on its proper construction. In my view, s 64(1) indicates that the legislature intended it to operate to give full effect to any subsequent assignment with ministerial consent in the first 12 months, without interference from any accrued rights of a party in the position of Anuman. In other words, the creation of a proprietary right in Anuman from the outset of the licence period would involve an equitable interest in the licence being otherwise dealt with in that period.

Conclusion

In light of the foregoing, in my view, Anuman did not have an estate or interest in EL 51/1367 as at the relevant date within the meaning of par (ca) of the definition of 'land' in s 3 of the Duties Act, and the appeal should be dismissed.