McLevie v Mining Projects Management Group Pty Ltd - [2022] WASC 265

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MCLEVIE -v- MINING PROJECTS MANAGEMENT GROUP PTY LTD [2022] WASC 265
CORAM:   STRK J
HEARD:   29 NOVEMBER 2021
DELIVERED          :   18 AUGUST 2022
FILE NO/S:   CIV 1775 of 2021
BETWEEN:   DEVIN WILLIAM MCLEVIE
Plaintiff
AND
MINING PROJECTS MANAGEMENT GROUP PTY LTD
First Defendant
AU KT PTY LTD
Second Defendant

Catchwords:

Equity - Injunction - Whether the plaintiff has established a serious question to be tried - Whether the balance of convenience favours injunctive relief - Injunction granted to restrain transfer or disposal of, or attempting to transfer or dispose of, or taking any steps to transfer or dispose of mining tenements - Turns on own facts

Legislation:

Mining Act 1978 (WA), s 45, s 69, s 116

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	M T McKenna
First Defendant	:	T J Palmer SC & D M Benson
Second Defendant	:	R R Joseph

Solicitors:

Plaintiff	:	Gilbert + Tobin
First Defendant	:	Clayton Utz
Second Defendant	:	MinterEllison

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

Anglogold Ashanti Australia Ltd v Monument Exploration Pty Ltd [2019] WAMW 13
Australian Broadcasting Corporation v O'Neil [2006] HCA 46; (2006) 227 CLR 57
Briginshaw v Briginshaw (1938) 60 CLR 336
Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84
Crocker Consolidated Pty Ltd v Wille [1988] WAR 187
Ex parte Devant Pty Ltd v Minister for Mines (Unreported, WASC, Library No 960722, 18 December 1996)
Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510
Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Korab Resources Ltd v Richmond [2007] WAMW 16
Linter Group Ltd v Goldberg (1992) 7 ACSR 580
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76; (2017) 55 WAR 36
Telferscot Nominees Pty Ltd v Chameleon Mining NL (2005) 42 SR (WA) 132
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2021] WASC 356
Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134

TABLE OF CONTENTS

Summary

Relevant provisions of the Mining Act

An overview of the tenure

The evidence

An overview of the parties' contentions

Mr McLevie's contentions

The alleged scheme - dealings in relation to tenements

The scheme - the involvement of AU KT

Alleged non-compliance with s 45 and s 69 of the Mining Act

The effect of non-compliance with s 45 and s 69 of the Mining Act

Relief sought

The purported dealings

Prima facie case

Balance of convenience

MPMG's contentions

Prima facie case

Balance of convenience

AU KT's contentions

Prima facie case

Balance of convenience

Principles applicable to the grant of interlocutory injunctions

Disposition

Serious question to be tried

Primary claim - that MPMG participated in a 'scheme'

The alternative claim - that MPMG and AU KT participated in a 'scheme'

The dealings

What is the scope of the protection afforded by s 116(2)?

Balance of convenience

Conclusion and orders

STRK J:

Summary

By this proceeding the plaintiff, Devin William McLevie, makes a number of serious allegations as against the first defendant, Mining Projects Management Group Pty Ltd (MPMG), and the second defendant, AU KT Pty Ltd (AU KT), concerning the surrender and acquisition of certain mining tenements, which Mr McLevie alleges were acquired in breach of the Mining Act 1978 (WA), particularly s 45 and s 69. Mr McLevie says that the acquired tenements are invalid, the applications for the same having been made in breach of the Mining Act.
Mr McLevie has marked out prospecting licences and applied for tenure which largely covers the same ground as that surrendered and subsequently acquired by MPMG, alternatively MPMG and AU KT, allegedly in breach of the Mining Act. Mr McLevie stands to have tenure granted in his favour if he succeeds in securing the various declarations pressed in this proceeding.
The proceeding was commenced by a writ of summons which at the outset only named MPMG as a defendant. On an ex parte basis, upon the provision of an undertaking as to damages, Mr McLevie secured interim injunctive relief, restraining MPMG from transferring or disposing of, or attempting to transfer or dispose of, or taking any steps to transfer or dispose of the acquired tenements. The interim orders were served on MPMG.
The writ has been amended twice since the grant of ex parte relief. It was by the further amended writ of summons that AU KT was joined as the second defendant to the proceeding. A second further amended statement of claim was filed on behalf of Mr McLevie. The latest amended statement of claim includes a plea concerning a further tenement that was surrendered and later acquired by MPMG, alternatively MPMG and AU KT.[1] While each of MPMG and AU KT have filed an appearance to this proceeding, neither has filed a defence.
[1] Being exploration licence 77/2657, formerly exploration licence 77/2287.
It is in the latest amended statement of claim that Mr McLevie pleads that MPMG and AU KT had purported to enter into dealings as between themselves concerning the tenements that had been surrendered and subsequently acquired by MPMG, alternatively MPMG and AU KT. They include a deed of variation and signed transfer forms, which counsel for Mr McLevie brought to the court's attention at the ex parte hearing. Mr McLevie pleads to matters which he contends call for a finding that none of the purported dealings were 'valid' dealings that affords either defendant the protection of s 116(2) of the Mining Act.
The operation of the interim injunction was extended pending the second, inter partes hearing where Mr McLevie sought to justify the continuance of the injunction in circumstances where MPMG and AU KT opposed the same. I understood injunctive relief as against AU KT was not sought as AU KT had proffered an undertaking acceptable to MPMG.[2] At the second hearing, it was the position of MPMG and AU KT that Mr McLevie had not established a prima facie case, primarily grounded on the proposition that Mr McLevie cannot succeed if MPMG and AU KT had entered into a dealing for the purposes of s 116(2) of the Mining Act, and that in all of the circumstances, the balance of convenience favoured discharge of the injunction.
[2] ts 71 (29 November 2021).
Set out below are my reasons for granting the relief sought by Mr McLevie pending an expedited trial. In summary, I consider that Mr McLevie has established a serious question to be tried, albeit there are difficulties with his claim. The factor that tips the balance of convenience in favour of the injunction is that the alternative has the potential to have the practical effect of determining against Mr McLevie his claim for substantive relief.

Relevant provisions of the Mining Act

The contentions of the parties particularly concern the operation and effect of three sections of the Mining Act: s 45(2), s 69(1) and s 116(2).
Section 45(2) of the Mining Act provides:
(2) When a prospecting licence is surrendered, forfeited or expires the land the subject of the prospecting licence or any part thereof shall not be marked out or applied for as a prospecting licence or an exploration licence -
(a) by or on behalf of the person who was the holder of the prospecting licence immediately prior to the date of the surrender, forfeiture or expiry; or
(b) by or on behalf of any person who had an interest in the prospecting licence immediately prior to that date; or
(c) by or on behalf of any person who is related to a person referred to in paragraph (a) or (b),
within a period of 3 months from and including that date.
Section 69(1) of the Mining Act provides:
(1) When an exploration licence is surrendered or forfeited, or expires, or any part of the land the subject of the licence is surrendered in accordance with section 65, the land the subject of the licence or the part so surrendered shall not be marked out or applied for as a prospecting licence or an exploration licence -
(a) by or on behalf of the person who was the holder of the exploration licence immediately prior to the date of the surrender, forfeiture or expiry; or
(b) by or on behalf of any person who had an interest in the exploration licence immediately prior to that date; or
(c) by or on behalf of any person who is related to a person referred to in paragraph (a) or (b),
within a period of 3 months from and including that date.
As was observed by counsel for Mr McLevie, the purpose of the prohibitions outlined in s 45(2) and s 69(1) is to prevent, in the short term, the former holder of a prospecting or exploration licence becoming the holder of the tenement again in circumstances where that holder had not converted the licence into a mining lease, thereby depriving other persons of the opportunity to explore the ground.[3]
[3] Plaintiff's first submissions par 28, citing Telferscot Nominees Pty Ltd v Chameleon Mining NL (2005) 42 SR (WA) 132, 139; Ex parte Devant Pty Ltd v Minister for Mines (Unreported, WASC, Library No 960722, 18 December 1996) 4.
Among other matters, s 116(2) of the Mining Act provides that no person dealing with the 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. Section 116 provides as follows:
116. Instrument of licence or lease
(1) The holder of a mining tenement granted pursuant to this Act is entitled, on payment of the prescribed fee, to receive an instrument of licence or lease as the case may be in such form as may be prescribed.
(2) Except in the case of fraud, a mining tenement granted or renewed under this Act shall not be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the grant or renewal of that tenement and no 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.
(3) In subsection (2) -
registered, in relation to a holder or previous holder of a mining tenement, means that the name of the holder or previous holder is or was entered in the register as the holder of the mining tenement.

An overview of the tenure

Before summarising each of the parties' contentions, it is convenient to identify the relevant tenure. I did not understand the following to be contentious for the purpose of the disposition of whether the interim injunction should be continued pending trial.
First, the following tenements were registered in the name of MPMG and surrendered (together the surrendered tenements):[4]
(a)prospecting licences 77/4266-I, 77/4267-I, 77/4268-I, 77/4269‑I, 77/4276-I and 77/4277-I (together the Old Prospecting Licences);

(b)prospecting licence 77/4315-I;
(c)exploration licence 77/2199; and
(d)exploration licence 77/2287.
[4] Second further amended statement of claim pars 6, 11, 23, 24, 30B.

Secondly, the tenements that were acquired are exploration licences 77/2642 and 77/2643; and prospecting licences 77/4528, 77/4529, 77/4530, 77/4531, 77/4533 and 77/4556, and presently, MPMG is the registered holder of the same (together the acquired tenements).[5]
[5] Second further amended statement of claim par 36.
Thirdly, exploration licence 77/2657 was acquired and it is pleaded that AU KT and MPMG each hold a beneficial interest in the same.[6]
[6] Second further amended statement of claim par 30G.
Fourthly, prospecting licence 77/4554 was referenced by Mr McLevie as being subject to purported dealings between MPMG and AU KT. The tenement is not subject to the relief sought by Mr McLevie by this proceeding.
Fifthly, Mr McLevie is the applicant for prospecting licences 77/4577, 77/4578, 77/4579, 77/4580, 77/4581 and 77/4583; and exploration licence 77/2902 (together the McLevie applications).[7] The McLevie applications are over largely the same ground covered by the acquired tenements and exploration licence 77/2657 described at [15] and [16] above.
[7] First McLevie affidavit par 4, DWM1 - DWM6; second further amended statement of claim par 38G.

The evidence

At the second court hearing, counsel for Mr McLevie read and sought to rely upon four affidavits.[8] Only the first two of the four affidavits described below were read and relied upon at the hearing of the ex parte application.[9]
[8] ts 17 (29 November 2021).
[9] ts 2 (20 October 2021).
The first was the affidavit of Mr McLevie affirmed on 14 October 2021, to which he attached documents marked DWM1 to DWM66.
Among other things, in his first affidavit, Mr McLevie deposed to making the McLevie applications after becoming aware of MPMG's conduct in respect of a number of mining tenements.[10] He deposed that based upon his review of the records maintained by the Department of Mines, Industry Regulation and Safety (DMIRS), through publicly available information obtained online and through written document requests, he believes that MPMG has been engaged in a scheme with third parties to hold the acquired tenements in circumstances where MPMG was not able to hold tenements over the ground under the Mining Act. He further deposed to his belief that during the three month exclusion period under s 45 and s 69 of the Mining Act, parties acting as agents for MPMG held the land or blocked others from obtaining the land. Mr McLevie sets out in his first affidavit the basis for his belief. Mr McLevie attached to his first affidavit numerous mining tenement searches of the register maintained by the DMIRS and copies of various lodged forms which included Form 23 (Transfer), Form 12 (Surrender), and Form 22 (Withdrawal of application).
[10] First McLevie affidavit par 6.
Mr McLevie also deposed to the exchange of correspondence as between his solicitors, Gilbert + Tobin, and the solicitors for MPMG. In this regard, Mr McLevie deposed that he instructed Gilbert + Tobin to write to the directors of MPMG on 16 February 2021, requesting an explanation in relation to the alleged breaches of the Mining Act. Mr McLevie attached to his affidavit and marked DWM54 a copy of that letter.[11] Mr McLevie further deposed to the issue of a second letter by Gilbert + Tobin to the directors of MPMG on 16 February 2021, which contained what was an open offer of compromise (marked DWM55).[12]
[11] First McLevie affidavit par 60.
[12] First McLevie affidavit par 62.
Mr McLevie deposed to receipt of a response from Ensign Legal on behalf of MPMG on or around 19 March 2021, a copy of which was attached and marked DWM56, in which engagement by MPMG in conduct in breach of the Mining Act was denied.[13]
[13] First McLevie affidavit par 64.
Mr McLevie deposed to having instructed Gilbert + Tobin to send a letter to Ensign Legal, seeking an undertaking from MPMG that it would not deal with the tenements in question pending resolution of foreshadowed proceedings (which was attached to his affidavit as DWM57), and to receipt by his solicitors of a refusal on the part of MPMG to provide the requested undertaking (marked DWM58).[14]
[14] First McLevie affidavit pars 66, 68.
Mr McLevie deposed that by a letter dated 14 September 2021, Clayton Utz (then acting for MPMG) provided documents relating to a joint venture between MPMG and AU KT, which contemplates the transfer of the acquired tenements from MPMG to AU KT (attached and marked DWM60 to DWM65). In his affidavit, Mr McLevie noted that the correspondence from Ensign Legal made no reference to a relationship as between MPMG and AU KT; and described anomalies identified by Mr McLevie when he reviewed the documents provided by Clayton Utz.[15]
[15] First McLevie affidavit par 71.
At par 92 of his first affidavit, Mr McLevie deposed to his belief that due to the conduct of MPMG described in his affidavit, MPMG had created documents to give a false impression that a 'dealing' had occurred prior to the commencement of this proceeding. He further deposed to his belief that MPMG intends to purport to transfer the acquired tenements for the purpose of defeating the claim of invalidity made by Mr McLevie in relation to the acquired tenements.
The second was the affidavit of Melanie Hawkins sworn on 15 October 2021, to which she attached documents marked MH1 and MH2. Ms Hawkins is a Senior Mining Title Consultant employed by Austwide Mining Title Management Pty Ltd.
Ms Hawkins deposed to her employment with Austwide and to her previous employment and roles while an employee of the DMIRS in the Tenure and Native Title Branch between March 2002 and September 2019.[16]
[16] Hawkins affidavit pars 5 - 7.
Ms Hawkins further deposed to the usual process for the grant of mining tenements, and to the tenement details she had sourced from Mineral Titles Online concerning the grant of exploration licences 77/2642 and 77/2643.[17] Ms Hawkins attached to her affidavit at MH2 copies of mining tenement register searches for exploration licences 77/2642 and 77/2643 from Mineral Titles Online.
[17] Hawkins affidavit pars 8 - 13.
The third affidavit was the second affidavit made by Mr McLevie, which he affirmed on 24 November 2021 and attached documents marked DWM67 to DWM69.
By his second affidavit, Mr McLevie among other things, deposed to having accessed the Western Australia Mineral WAMEX database maintained by the DMIRS so as to conduct searches to locate reports relating to tenements that had been held by MPMG and were subject to the joint venture between MPMG and AU KT.[18]
[18] Second McLevie affidavit par 7.
Mr McLevie attached to his second affidavit a surrender report prepared by AU KT for exploration licence 77/2287 dated 15 June 2020 (marked DMW67), together with searches for exploration licence 77/2287 and exploration licence 77/2657.
The fourth affidavit was deposed to by Rose Elizabeth Kenny, a lawyer employed by Gilbert + Tobin, and sworn on 24 November 2021, which attached documents marked REK1 to REK10. Attached to Ms Kenny's affidavit were copies of appraisal reports obtained by Ms Kenny on 24 November 2021 from the TENGRAPH database for each of the acquired tenements, together with exploration licence 77/2657 and prospecting licence 77/4554.
Counsel for Mr McLevie also relied upon a written outline of submissions filed for the purpose of the ex parte hearing filed on 19 October 2021 and an outline of responsive submissions filed on 24 November 2021 before the second hearing.
Counsel for MPMG read the affidavit of Jordan Hill, a lawyer employed by Clayton Utz, affirmed on 16 November 2021.[19] Ms Hill attached to her affidavit correspondence and property searches.
[19] ts 32 (29 November 2021).
As to the correspondence, Ms Hill attached to her affidavit an email communication sent on 27 January 2021 from Mr Qianrui (Stanley) Fu (who Ms Hill deposed was a director of AU KT at the time), to Darren McAulay, principal of Datum Peg Mining Solutions. The email attached a letter agreement dated 18 January 2021 addressed to John Shackleton, a director of MPMG.
Ms Hill also attached to her affidavit an email communication from Dexter Menezes of 4C Consulting Pty Ltd (who Ms Hill deposed was MPMG's accountant), to Mr Shakleton. The email communication attached two letters received from Gilbert + Tobin dated 16 February 2021.

As to property searches, Ms Hill deposed that on 16 November 2021, she had conducted a Landgate search for property registered in the name of Devin William McLevie, and attached a screenshot of that search.
At the inter partes hearing of the application, counsel for MPMG also relied upon a written outline of submissions filed on 16 November 2021.
Counsel for AU KT read the affidavit of Conor Christopher McCavana, a lawyer employed by MinterEllison, sworn on 16 November 2021, to which he had attached documents marked CCM1 to CCM5.
Mr McCavana deposed to having been informed by Qianrui Fu, the chief operating officer of AU KT, that he often goes by the name 'Stanley Fu' when dealing with native speakers of English; and that certain Chinese characters translate to 'Fu Qianrui', which is a reference to him.[20]
[20] McCavana affidavit par 4.
Mr McCavana also attached to his affidavit what he described as true copies of:
(a)an email from Mr Fu to Mr McAulay sent on 27 January 2021 attaching a letter agreement between MPMG and AU KT dated 18 January 2021;
(b)an email exchange between Mr McAulay and Mr Fu on 1 February 2021;
(c)a letter from Mr Fu to Mr Shackleton dated 4 February 2021;
(d)an email exchange involving Mr Fu, Mr McAulay and Chuck Bartle on 4 February 2021; and
(e)an email from Mr Bartle to Mr Fu and Mr Brad Strange sent on 25 February 2021, attaching a deed of variation.
Mr McCavana further deposed that he was informed by Mr Fu and verily believed that Mr Fu signs documents using either a wet signature or an electronic signature; and where his signature on the deed of variation attached to Mr McCavana's affidavit as CCM5 is an example of an electronic signature, his signature on the Form 23 attached to the first McLevie affidavit as DWM63 is an example of his wet signature.[21]
[21] McCavana affidavit par 10.
At the inter partes hearing of the application, counsel for AU KT also relied upon a written outline of submissions filed on 16 November 2021.

An overview of the parties' contentions

Mr McLevie's contentions

The alleged scheme - dealings in relation to tenements

Mr McLevie pleads and deposes to a series of dealings in relation to mining tenements which he contends together effect a scheme to retain tenure in breach of s 45(2) and s 69(1) of the Mining Act.[22] The series of dealings are also summarised in the submissions filed for the ex parte hearing.[23]
[22] First McLevie affidavit pars 5 - 58, DMW7 ‑ DMW53; second further amended statement of claim pars 3 - 37.
[23] Plaintiff's first submissions pars 5 - 18.
In an aide memoire provided to the court by counsel for Mr McLevie, the series of dealings is illustrated as follows:

Sourced predominantly from the pleading and Mr McLevie's first affidavit, the series of dealings are summarised below.

Old Prospecting Licences

On 9 August 2018, MPMG purchased from West Australian Prospectors Pty Ltd a group of tenements which included the Old Prospecting Licences (described fully in [14(a)] above), and prospecting licence 77/4315‑I. At the time of purchase, Vernon Wesley Strange was the sole director of West Australian Prospectors.[24]
[24] First McLevie affidavit pars 9 - 11(a); second further amended statement of claim pars 3 - 5.
On 21 November 2018, MPMG became the registered holder of the Old Prospecting Licences and prospecting licence 77/4315‑I.[25]
[25] First McLevie affidavit par 11(b); second further amended statement of claim par 6.
In circumstances where on 23 February 2019, prospecting licences 77/4266-I, 77/4267-I, 77/4268-I and 77/4269‑I (tenements that were Old Prospecting Licences) were due to expire, on 22 February 2019 MPMG lodged a Form 9 (Application for Extension of Term/Renewal of Term) to extend the terms of prospecting licences 77/4266‑I, 77/4267‑I, 77/4268‑I and 77/4269-I, for a period of four years.[26]
[26] First McLevie affidavit par 11(c); second further amended statement of claim pars 7 - 8.
In circumstances where on 28 May 2019, prospecting licences 77/4276‑I and 77/4277‑I (also tenements that were Old Prospecting Licences) were due to expire, on 28 May 2019 MPMG lodged a Form 9 to extend their term for a period of four years.[27]
[27] First McLevie affidavit par 11(d); second further amended statement of claim pars 9 - 10.
On 13 June 2019, MPMG lodged forms (Form 12) to effect the surrender of two tranches of tenements, which together were all of the Old Prospecting Licences.[28] As at 13 June 2019, the extension applications sought on 22 February 2019 and 28 May 2019 (referred to at [50] and [51] above, had not been determined.[29]
[28] First McLevie affidavit pars 11(e) - 11(f); second further amended statement of claim par 11.
[29] Second further amended statement of claim par 12.
On the same day, Peter Sydney Rowling, marked out the land covering the former Old Prospecting Licences, for the purposes of applying for new mining tenements.[30]
[30] Second further amended statement of claim par 13.
On 17 June 2019, Mr Rowling lodged applications (Form 21) for the grant of prospecting licences over the land covering the former Old Prospecting Licences, and was allocated prospecting application numbers 77/4528, 77/4529, 77/4530, 77/4531, 77/4532 and 77/4533.[31]
[31] First McLevie affidavit par 46(a); second further amended statement of claim par 14.
On 13 January 2020, Mr Rowling withdrew his application for prospecting licence 77/4532.[32]
[32] Second further amended statement of claim par 15.
On 13 January 2020, Mr Rowling was granted prospecting licences 77/4528, 77/4529, 77/4530, 77/4531 and 77/4533.[33]
[33] First McLevie affidavit par 46(b); second further amended statement of claim par 16.
On 17 February 2020, Mr Rowling transferred each of the prospecting licences that he had been granted to MPMG for total consideration of $6,480, and on 28 February 2020, MPMG became the registered holder of the same.[34]

Prospecting licence 77/4315-I

[34] First McLevie affidavit pars 46(c) - 46(d); second further amended statement of claim pars 32 - 33.

On 25 November 2019, a Form 12 (Surrender) executed by MPMG was lodged in respect of prospecting licence 77/4315‑I, which was due to expire on 14 December 2019. On the same day, Derrick Craig Kettlewell marked out the land covering the former P77/4315‑I.[35]
[35] First McLevie affidavit par 46(f); second further amended statement of claim pars 17 - 18.
On 27 November 2019, Mr Kettlewell lodged a Form 21 and was allocated prospecting licence application number 77/4556 (in respect of the land formerly the subject of prospecting licence 77/4315‑I and the land formerly the subject of prospecting licence 77/4532, in relation to which Mr Rowling came to withdraw his application, as noted at [55] above).[36]
[36] First McLevie affidavit par 35; second further amended statement of claim par 19.
On 6 July 2020, Mr Kettlewell was granted prospecting licence 77/4556 for a term of 4 years.[37]
[37] First McLevie affidavit par 38(a); second further amended statement of claim par 20.
On 7 July 2020, Mr Kettlewell transferred prospecting licence 77/4556 for consideration of $1,380 to MPMG. On 14 July 2020, MPMG became the registered holder of prospecting licence 77/4556, which is subject of the same land as surrendered prospecting licences 77/4315‑I and 77/4532, formerly 77/4276.[38]

Exploration licence 77/2199

[38] First McLevie affidavit pars 38(b) - 38(c); second further amended statement of claim pars 34 - 35.

On 20 September 2018, MPMG purchased exploration licence 77/2199 from Taplan Pty Ltd for consideration of $5,000. At the time of the purchase, Mr Bartle was a director of both MPMG and Taplan. The transfer was registered on 21 November 2018.[39]
[39] First McLevie affidavit pars 49(a), 57; second further amended statement of claim pars 21 - 22.
On 14 October 2019, a Form 12 (Surrender) executed by MPMG was lodged in respect of E77/2199.[40]
[40] First McLevie affidavit par 49(c); second further amended statement of claim par 24.
On 14 October 2019, Mr Vernon Strange applied for two new exploration licences covering the land which was formally exploration licence 77/2199. Mr Vernon Strange was allocated exploration application numbers 77/2627 (four graticular blocks) and 77/2628 (one graticular block).[41]
[41] First McLevie affidavit par 51; second further amended statement of claim pars 25 - 26.
On 24 February 2020, MPMG applied for an exploration licence over the same four graticular blocks covered by Mr Vernon Strange's application that had been allocated exploration application number 77/2627. MPMG's application was allocated exploration application number 77/2642.[42]
[42] First McLevie affidavit par 52; second further amended statement of claim par 27.
On 25 February 2020, MPMG applied for an exploration licence over the same one graticular block covered by Mr Vernon Strange's application that had been allocated exploration application number 77/2628. MPMG's application was allocated exploration application number 77/2643.[43]
[43] First McLevie affidavit par 53; second further amended statement of claim par 28.
On 11 March 2020, Mr Vernon Strange withdrew his applications for exploration licences 77/2627 and 77/2628, and MPMG's applications for exploration licences 77/2642 and 77/2643 became first in time. On 11 February 2021, MPMG was granted exploration licences 77/2642 and 77/2643. These exploration licences cover the same land as exploration licence 77/2199, which had been surrendered by MPMG.[44]

Exploration licence 77/2287

[44] First McLevie affidavit pars 54 - 55; second further amended statement of claim pars 29 - 30.

MPMG was the registered holder of exploration licence 77/2287, which was due to expire on 8 April 2020.
On 30 March 2020, MPMG executed a Form 12 (Surrender) which was lodged with respect to exploration licence 77/2287.[45]
[45] Second McLevie affidavit par 10(a); second further amended statement of claim pars 30A - 30B.
On 15 June 2020, AU KT filed a surrender report for exploration licence 77/2287 with the DMIRS. At par 4 of that report, AU KT described the tenement details as follows:[46]
E77/2287 of 5 blocks was granted to VW Strange on 9 April 2015 and then was transferred to his private company West Australian Prospectors Pty Ltd on 2 March 2016. The licence was subsequently transferred to Mining Projects Management Group Pty Ltd (MPMG) on 21 November 2018. Since 13 June 2019 AuKT Pty Ltd explored the licence under Joint Venture - Farm in with MPMG, until surrender of the licence on 30 March 2020.
[46] Second McLevie affidavit, DWM67.
On 30 March 2020, Kym Anthony McClaren applied for an exploration licence over the land that was the subject of exploration licence 77/2287.
On 13 May 2020, Mr McClaren was granted exploration licence 77/2657 in respect of the land that was the subject of exploration licence 77/2287 for a term of 5 years. On 22 June 2020, Mr McClaren amended the address for exploration licence 77/2657 to 'McClaren, Kym Anthony, C/- AU KT Venture'.[47]
[47] Second McLevie affidavit, OWM69; second further amended statement of claim pars 30D, 30F.
By no later than 18 January 2021, AU KT held a transfer of exploration licence 77/2657 in its favour.[48]

The scheme - the involvement of AU KT

[48] Second McLevie affidavit par 10; affidavit of J Hill, JH1; second further amended statement of claim par 30G.

Mr McLevie pleads that on 23 April 2019, MPMG and AU KT entered into a joint venture agreement (JV Agreement), which relevantly provides that AU KT:[49]
(a) had a right to acquire a 49% interest in various tenements held by MPMG or separately being acquired by MPMG pursuant to other agreements (the JV Tenements) subject to certain expenditure being met (cl 4.2 and cl 4.3 of the JV Agreement); and
(b) had an option to acquire an additional 26% interest in the JV Tenements (cl 5.1(a) of the JV Agreement).
[49] See also first McLevie affidavit par 80, DWM60.
He further pleads that:
(a)under the JV Agreement, the JV Tenements included the Old Prospecting Licences, prospecting licence 77/4315-I, exploration licence 77/2199 and exploration licence 77/2287;
(b)by no later than 13 June 2019, AU KT had met the conditions described at [74(a)] above; and
(c)by no later than 24 February 2021, AU KT had met the conditions described at [74(b)] above.
Mr McLevie pleads that therefore, when:
(a)on 13 June 2019, MPMG lodged forms (Form 12) to effect the surrender of two groups of tenements, which together were all of the Old Prospecting Licences (described at [48] to [57] above), MPMG executed the forms for and on behalf of the joint venture under the JV Agreement; and AU KT had a relevant interest in the Old Prospecting Tenements at the date of their surrender;
(b)on 25 November 2019, a Form 12 executed by MPMG was lodged to effect the surrender of prospecting licence 77/4315-I (described at [58] to [61] above), MPMG executed the form for and on behalf of the joint venture under the JV Agreement; and AU KT had a relevant interest in prospecting licence 77/4315-I at the date of its surrender; and
(c)on 14 October 2019, a Form 12 executed by MPMG was lodged in respect of exploration licence 77/2199 (described at [62] to [67] above), MPMG executed the form for and on behalf of the joint venture under the JV Agreement; and AU KT had a relevant interest in exploration licence 77/2199 at the date of its surrender.
MPMG is currently the registered holder of all of the acquired tenements, and on 11 May 2020 amended its address for each of the acquired tenements to 'Mining Projects Management Group Pty Ltd, C/- AU KT Venture'.[50]
[50] First McLevie affidavit par 75; second further amended statement of claim pars 36, 37.
Mr McLevie also pleads that by no later than 18 January 2021, AU KT held a transfer of exploration licence 77/2657, formerly exploration licence 77/2287, in its favour (described at [68] to [73] above); therefore held a beneficial interest in exploration licence 77/2657; and held a 25% interest in exploration licence 77/2657 in favour of MPMG.

Alleged non-compliance with s 45 and s 69 of the Mining Act

Mr McLevie pleads that Mr Rowling, Mr Kettlewell, Mr Vernon Strange and Mr McClaren were acting for MPMG, alternately for MPMG and AU KT, when they applied for the acquired tenements; and at the time of the applications for the acquired tenements and exploration licence 77/2657, MPMG, alternatively MPMG and AU KT, through Mr Rowling, Mr Kettlewell, Mr Vernon Strange and Mr McClaren, were in breach of s 45(2) and s 69(1) of the Mining Act.[51]

The effect of non-compliance with s 45 and s 69 of the Mining Act

[51] Second further amended statement of claim par 38(a) and (b).

Mr McLevie pleads that the acquired tenements are invalid by reason of the failure of MPMG, alternatively MPMG and AU KT to comply with the provisions of the Mining Act in the application for the acquired tenements.[52]
[52] Second further amended statement of claim par 38(c).
As to the effect of non-compliance with s 45 and s 69 of the Mining Act, counsel for Mr McLevie made the following submissions:[53]
29We observe that in Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132 (Yarri), the Court of Appeal held that compliance with section 69 of the Mining Act was not a prerequisite to the Minister granting the licence.
30 However in Forrest & Forrest Pty Ltd v Wilson and Anor (2017) 262 CLR 510 (Forrest & Forrest), the High Court found that the application requirements for mining leases required strict compliance such that those requirements had to be met prior to the warden being able to exercise its power to hear an application and make a valid report and recommendation to the Minister in relation to that application.
31 In light of Forrest & Forrest, it would appear (or it is at least arguable) that Yarri was wrongly decided on the basis that non-compliance with section 69 (and by parity of reasoning, section 45) is a non-compliance with provisions of the Mining Act, which require strict compliance.
[53] Plaintiff's first submissions pars 29 - 31.
The submission was further developed in the responsive submissions filed on behalf of Mr McLevie as follows:
MPMG and AU KT have engaged in schemes to obtain the Tenements
29 Based on the circumstances outlined [in the responsive submissions] and in the Statement of Claim, it is apparent that the Defendants have repeatedly engaged in schemes to obtain the Tenements and E77/2657 in breach of sections 45 and 69 of the Mining Act.
30 As stated at paragraphs 29 to 31 of the Plaintiff's Ex Parte Submissions, in light of Forrest & Forrest Pty Ltd v Wilson and Anor (2017) 262 CLR 510 (Forrest & Forrest), the Plaintiff submits that Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132 was wrongly decided and strict compliance is required with respect to sections 45 and 69 of the Mining Act.
31 That is:
(a)the inference is available that each of the Tenements were applied for and on behalf of MPMG and AU KT in their respective JV shares; and
(b)sections 45 and 69 require such an application not to be made, and an application made in contravention of the 'cooling off' period is invalid.

Relief sought

By way of relief, among other things, Mr McLevie seeks a declaration that the applications made by Mr Rowling for prospecting licences 77/4528, 77/4529, 77/4530, 77/4531 and 77/4533; Mr Ketterwell for prospecting licence 77/4556; MPMG for exploration licences 77/2642 and 77/2643; and Mr McClaren for exploration licence 77/2657, were made in breach of the Mining Act.
He also seeks a declaration that the acquired tenements (that is, prospecting licences 77/4528, 77/4529, 77/4530, 77/4531, 77/4533; prospecting licence 77/4556; and exploration licences 77/2642 and 77/2643) are invalid.

The purported dealings

MPMG and AU KT each say that AU KT has acquired an interest in the acquired tenements through its dealings with MPMG. In the second further amended statement of claim, Mr McLevie describes each alleged dealing and the matters relied upon by him to refute that any were dealings for the purposes of s 116(2) of the Mining Act.
At the ex parte hearing, counsel acknowledged that Mr McLevie cannot succeed if a dealing had been entered into for the purposes of s 116(2) of the Mining Act.[54] This acknowledgment was implicit in the submissions made on behalf of Mr McLevie at the second hearing.[55]
[54] ts 3, 6, 9 (20 October 2021).
[55] ts 21, 27 (29 November 2021).
At the second hearing, the alleged dealings were raised by MPMG and AU KT and relied upon as a basis for their submission that the injunction ought be discharged. For completeness, I record that at the second hearing there was evidence before the court that was not before the court at the ex parte hearing, nor referenced by counsel. While it is appropriate that the addition be noted, no criticism of counsel or Mr McLevie is intended or warranted in this regard as I understand that the additional matter was not one within Mr McLevie's knowledge at the time of the ex parte hearing.
It is necessary to first describe the purported dealings, and then what Mr McLevie says in relation to whether any are dealings for the purposes of s 116(2) of the Mining Act. To this end, it is convenient to reproduce below the overview of the dealings as set out in the submissions filed on behalf of AU KT:[56]
[56] Second defendant's submissions pars 4, 10 - 18.
4.On or about 18 January 2021, AUKT dealt with MPMG to acquire an interest in the Tenements, consistently with its rights held under a Farm-in Joint Venture Agreement dated 23 April 2019 (FJVA). Since then, pursuant to the terms of the FJVA, AUKT has had further dealings with MPMG to acquire a 75% interest in the Tenements. The dealings between MPMG and AUKT with respect to the Tenements are set out in more detail at paragraphs 10 to 18 below.
…
AUKT acquired an interest in the Tenements through its dealings with MPMG
10. On or about 23 April 2019, AUKT and MPMG entered into the FJVA.
11. As described in more detail below, in January and February 2021, AUKT dealt with MPMG to include the Tenements as part of the Joint Venture Property and acquire a 75% interest in the Tenements, pursuant to its rights under the FJVA.
12.Pursuant to the terms of the FJVA:
(a)AUKT was to carry out exploration, and incur expenditure, on mining tenements held for the purposes of the joint venture (see clause 4);
(b)AUKT and MPMG were able to include additional mining tenements within the FJVA to form part of the Joint Venture Property (see clause 3);
(c)upon notice to MPMG and satisfaction of certain conditions, AUKT was entitled to earn a 49% interest in the Joint Venture Property (see clause 4.3);
(d)upon AUKT earning the 49% interest, AUKT had an option to purchase an additional 26% interest in the Joint Venture Property (see clause 5); and
(e) MPMG represented and warranted, inter alia, that it was the sole and legal beneficial owner of the mining tenements, that the tenements were in good standing and not liable to cancellation or forfeiture for any reason, and that MPMG was not aware of any contravention of Mining Act (see clause 14.2).
13.On or about 18 January 2021, AUKT and MPMG executed a Letter of Agreement whereby AUKT agreed to additional mining tenements, including the Tenements, becoming Joint Venture Property and being held for the purposes of the joint venture in accordance with the terms of the FJVA (Letter Agreement).
14.By on or about 25 February 2021, AUKT and MPMG had entered into a Deed of Variation that amended the FJVA to include the Tenements.
15.On or about 4 February 2021, AUKT gave notice to MPMG that it elected to continue to sole fund expenditure in order to earn a 49% interest in the Joint Venture Property (Earn-in Notice).
16.Clause 4.5 of the FJVA requires the transfer of an undivided 49% interest in the Tenements to be lodged and registered with the Department following the issue of the Earn-in Notice. Until registration, MPMG holds the undivided 49% interest in the Tenements on trust for AUKT.
17.On or about 24 February 2021, AUKT and MPMG executed transfer documents to transfer a 75% interest in the Tenements from MPMG to AUKT. When the transfer documents were being prepared, the parties were already aware that AUKT intended to acquire a 75% interest in the Tenements (by issuing the Earn-in Notice and exercising the option in clause 5 of the FJVA).
18.On or about 1 March 2021, AUKT provided written notice to MPMG that it was exercising its option to purchase the additional 26% interest in the Joint Venture Property, in compliance with the notice requirements in clause 5 of the FJVA.
(footnotes omitted)

Prima facie case

I understood it to be submitted on behalf of Mr McLevie that he has a prima facie case for the relief sought, as:
(a)there is evidence of a series of dealings, having regard to which the court may be willing to infer that Mr Rowling, Mr Kettlewell, Mr Vernon Strange and Mr McClaren applied for tenements on behalf of MPMG, alternatively MPMG and AU KT; and
(b)the series of dealings together effect a scheme to obtain tenements in breach of s 45(2) and s 69(1) of the Mining Act¸ which in light of the decision of the High Court in Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 (Forrest v Forrest), arguably makes the acquired tenements invalid.
Counsel for Mr McLevie acknowledged that the High Court in Forrest & Forrest held, albeit in obiter, that s 116(2) of the Mining Act, by its second limb, corrects the invalidity of a tenement once it is subject to a dealing: at [77]. While acknowledging the same, counsel for Mr McLevie submitted that there is a prima facie case that on the evidence, as it is open for the court to conclude that the purported dealings were concocted for the purpose of s 116(2) of the Mining Act, so as to defeat Mr McLevie's claim.[57] By way of relief, Mr McLevie also seeks a declaration that 'the purported transaction is not a dealing in any event as it involved transferring an interest in the Joint Venture Property back to the joint venture, which contravenes the policy underpinning the Mining Act'.[58]
[57] Plaintiff's first submissions par 43.
[58] Second further amended statement of claim, prayer for relief par A(e).
Mr McLevie contends that the purported dealings entered into by MPMG and AU KT are either invalid; an effectuation of a scheme such that there is no change in the ownership of the acquired tenements and exploration licence 77/2657; and/or tainted by knowledge of the 'true position', such that the protection afforded by s 116(2) of the Mining Act is unavailable in the circumstances.[59]

Letter agreement

[59] Plaintiff's responsive submissions par 3(b).

As to the letter agreement, Mr McLevie contends that it is ineffective as a dealing as it is improperly executed (having been executed by only one director of each of MPMG and AU KT), and having been superseded by the deed of variation.[60]

Deed of variation

[60] Second further amended statement of claim par 38(ca); plaintiff's responsive submissions par 7(b).

The deed of variation is dated 1 February 2021, and provides that an interest in various tenements held by MPMG (including the acquired tenements), would be transferred to AU KT in accordance with the terms of the JV Agreement.
Mr McLevie pleads that the deed of variation was not signed on 1 February 2021.[61] In support of this contention, Mr McLevie referred to and relied upon sch 2 of the deed of variation.
[61] Second further amended statement of claim par 38C.
Schedule 2 of the deed of variation identifies and describes the tenements intended to be subject to the purported variation, by reference to, among other things, their grant date. Included in sch 2 is a reference to E77/2642 and E77/2643, which have a grant date of 11 February 2021 (that is, 10 days after the date attributed to the deed of variation).[62]
[62] Second further amended statement of claim par 38B.
Mr McLevie pleads that if the deed of variation was backdated, it is not enforceable as it is intended to effectuate the scheme; and/or was prompted by Mr McLevie's actions. If the deed of variation was executed on or about 25 February 2021, Mr McLevie pleads that it is ineffective as it is intended to effectuate the scheme; and was executed by a person that was not at the time of execution a director.[63] As to the second point, Mr McLevie pleads that the deed of variation is purportedly signed by Mr Fu in his capacity as director of AU KT, in circumstances where Mr Fu ceased to be a director of AU KT on 20 February 2021.

Transfer forms

[63] Second further amended statement of claim par 38CA; plaintiff's responsive submissions par 7(c).

As to the purported transfers, Mr McLevie pleads that on or about 24 February 2021, MPMG and AU KT purported to sign the relevant transfer forms to give effect to the acquisition by AU KT of an interest in the acquired tenements under the JV Agreement.
The transfer forms purported to be signed by Mr Fu in his capacity as director of AU KT. However, Mr Fu ceased to be a director of AU KT on 20 February 2021.
Mr McLevie contends that the transfer forms are ineffective to constitute dealings for the purposes of s 116(2) of the Mining Act as they were backdated; signed by a person who was not a director (if signed by him at all); and based on ineffective instruments.[64]
[64] Second further amended statement of claim par 38(e); plaintiff's responsive submissions par 7(d).
Finally, it was submitted that there is no dealing in any event as the purpose of the scheme was to retain the land the subject of the surrendered tenements in the ownership of MPMG and AU KT in their respective joint venture shares.[65] Counsel for Mr McLevie further submitted that there is nothing in the materials filed on behalf of MPMG and AU KT which addresses Mr McLevie's core claim that there was a scheme in existence.[66]

Balance of convenience

[65] Plaintiff's responsive submissions par 7(e).

[66] Plaintiff's responsive submissions par 4.

Counsel for Mr McLevie submitted that absent the continuation of the injunction, a further dealing may be entered into by MPMG and AU KT for the sole purpose of defeating Mr McLevie's claim.[67] It is submitted that the balance of convenience lies in favour of the status quo being maintained by extending the interim injunction.[68]

MPMG's contentions

[67] Plaintiff's first submissions par 44.

[68] Plaintiff's responsive submissions par 3(d).

MPMG contends that the injunction should not continue and should be discharged.

Prima facie case

No part of Mr McLevie's claim was conceded. Counsel for MPMG submitted that when all of the evidence was considered, Mr McLevie had not established a prima facie case. Three primary reasons were advanced, each grounded on the proposition that Mr McLevie cannot succeed if MPMG and AU KT have entered into a dealing for the purposes of s 116(2) of the Mining Act.
First, counsel submitted that the evidence now adduced by MPMG and AU KT establishes that the defendants had entered into an earlier dealing that was not put before the court at the ex parte hearing, that being a letter agreement entered into in January 2021. Counsel noted that Mr McLevie must now, in addition to the two purported dealings drawn to the court's attention at the ex parte hearing, also demonstrate a prima facie case that the letter agreement (a third dealing) was ineffectual.
Secondly, at the ex parte hearing, Mr McLevie attempted to establish a prima facie case in relation to the transfer forms (one of the two dealings then before the court) by asserting that they were a 'nullity' because they were not executed by a director of AU KT, which contention was also pleaded.[69] Counsel noted that the submissions did not identify any authority for the assertion that the legal consequence of the transfer forms not being executed by a director was that the transfer forms were a nullity. Counsel in this regard noted that Mr McLevie had failed to address the operation of s 129(5) of the Corporations Act. In short, counsel for MPMG submitted that the position put on behalf of Mr McLevie, that the transfers were a nullity, was legally incorrect.
[69] Second further amended statement of claim par 38(e)(i) and (ii); further amended statement of claim par 38(f), the latter referred to in the second defendant's submissions par 7.
Thirdly, at the ex parte hearing, Mr McLevie sought to establish a prima facie case in relation to the invalidity of the deed of variation (the other dealing then before the court) on the basis that it was invalid because it was backdated. Again, counsel for MPMG noted that no authority was cited in support of the contention that the backdated agreements are invalid. In this regard, counsel submitted that the authorities reveal that an agreement would only be invalid if it was fraudulent, and the apparent incongruity in the dating of the deed is incapable of proving fraud, even on a prima facie basis. It was further submitted that this is even more evident once the deed of variation is considered in the context of the evidence taken as a whole, including the letter agreement. Counsel submitted that the deed of variation falls within an entirely plausible and believable context.[70] The limited evidence adduced by Mr McLevie was not, it was submitted, capable of sustaining the serious allegation made.[71]

Balance of convenience

[70] ts 38 (29 November 2021).

[71] ts 38 (29 November 2021).

As to the balance of convenience, counsel for MPMG submitted that it is relevant to consider the effect that the present restraint will have on AU KT, who counsel noted, even on Mr McLevie's case, appears to be an innocent third party. Counsel submitted that the balance does not favour the restraint of an innocent third party to that party's detriment. The need for the injunction so as to protect Mr McLevie's position, given the only evidence of previous or proposed dealing was as between MPMG and AU KT, was also raised as a matter that ought to be considered in the balance.[72] In this regard, counsel submitted that the balance did not depend significantly on the assessment made as to the prima facie case.[73]

AU KT's contentions

Prima facie case

[72] ts 39 - 40, 44 (29 November 2021).

[73] ts 39 - 40 (29 November 2021).

Counsel on behalf of AU KT noted that the interim injunction was sought and obtained despite the interest of AU KT in the acquired tenements, on the alleged basis that there was no 'valid' dealing that affords AU KT the protection in s 116(2) of the Mining Act, which counsel for AU KT submitted was demonstrably inaccurate.
It is AU KT's position that, given the protection in s 116(2) of the Mining Act, Mr McLevie cannot show a prima facie case that justifies preventing or hindering AU KT from registering, and acting upon, its interest in the acquired tenements, which it says was only held from 4 February 2021 when it gave an earn-in notice under the JV Agreement.[74] That is because, even if MPMG contravened s 45(2) and s 69(1) of the Mining Act and the contraventions could invalidate the acquired tenements and exploration licence 77/2287 (noting that neither proposition is accepted by AU KT), due to the operation of s 116(2), AU KT's interest in the acquired tenements is indefeasible.
[74] ts 46 (29 November 2021).
Counsel for AU KT noted that Mr McLevie has not alleged, or provided any evidence of, fraud by AU KT in respect of its dealings with MPMG, and further submitted that the 'anomalies' described by Mr McLevie do not affect the operation of s 116(2) of the Mining Act. Given that AU KT is protected by the operation of s 116(2) of the Mining Act, counsel for AU KT submitted that even if Mr McLevie was successful in its claim against MPMG at trial, he does not have a prima facie case for continuing the interim injunction.[75]

Balance of convenience

[75] Counsel for AU KT further developed these submissions: see ts 45 - 65 (29 November 2021).

Counsel for AU KT raised a number of matters in relation to the balance of convenience, in short, submitting that it lies with the discharge of the interim injunction.
Counsel submitted that there is no evidence that AU KT's dealings with MPMG were anything other than normal business transactions pursuant to the terms of the JV Agreement.
Further, the interim injunction prevents the registration of AU KT's interest in the acquired tenements in circumstances where AU KT has already acquired its interest (which is being held on trust by MPMG). In such circumstances, counsel submitted that the interim injunction is undermining the accuracy and integrity of the Mining Act register. Counsel further submitted that the balance of convenience lies with upholding the integrity of the register and acting consistently with the protection afforded by s 116(2) of the Mining Act.
Counsel also submitted that AU KT is entitled to certainty in respect of its dealings with MPMG. In this regard, counsel noted that since entering into the letter agreement to include the acquired tenements and exploration licence 77/2287 as part of the property of the JV Agreement, AU KT has:
(a) issued the earn-in Notice, acquired a 49% interest in the acquired tenements, and agreed to fund further expenditure of $1,000,000 pursuant to cl 4.3 of the JV Agreement;
(b) exercised its option to purchase an additional 26% interest at an exercise price of $1,000,000 pursuant to cl 5(a) of the JV Agreement;
(c) entered into a joint venture with MPMG to explore for minerals in respect of the acquired tenements and exploration licence 77/2287 in accordance with cl 6 of the JV Agreement; and
(d) agreed to fund all joint venture expenditure, be responsible for tenement management, and comply with the Mining Act (including in relation to meeting expenditure conditions) in accordance with cl 7 of the JV Agreement.
Notwithstanding the interim injunction, AU KT is required by the JV Agreement to comply with, inter alia, the expenditure conditions in s 50 and s 62 of the Mining Act. By undermining the protection afforded by s 116(2), counsel submitted that the interim injunction creates uncertainty as to whether AU KT:
(a) will ultimately benefit from the exploration activities and expenditure that it is required to carry out with respect to the acquired tenements and exploration licence 77/2287;
(b) must comply with its obligations under the JV Agreement (with the risk of otherwise being found to have breached or repudiated the JV Agreement); and
(c) must comply with the statutory obligations under the Mining Act relating to (amongst other things) expenditure.
In this regard, the interim injunction prejudices further exploration on the acquired tenements and exploration licence 77/2287 and, in addition to being inconsistent with the protection in s 116(2), is inconsistent with promoting the objects of the Mining Act.
Finally, counsel for AU KT noted that the interim injunction restrains MPMG from taking steps to transfer or dispose of the acquired tenements. AU KT does not accept that further steps must be taken by MPMG in order for AU KT to lodge the executed transfer forms that reflect AU KT's interest. Therefore, the interim injunction is arguably redundant.
Counsel submitted that even assuming that there is scope for it to operate, the interim injunction only restrains the registration of the transfer forms, rather than the transfer of an interest in the acquired tenements, because AU KT has already dealt with MPMG and acquired its 75% interest in the same. AU KT's interest is being held on trust for AU KT by MPMG pursuant to cl 4.5 and cl 5(c) of the JV Agreement. It was submitted that, as a result, the interim injunction is undermining the integrity and accuracy of the register. There is no merit in preventing the register from reflecting the true position with respect to AU KT's interest in the acquired tenements; and the balance of convenience does not favour continuing the interim injunction.

Principles applicable to the grant of interlocutory injunctions

The general principles applicable to the exercise of the power to grant an interlocutory injunction were not in dispute. They were summarised by Newnes JA (with whom McLure P and Corboy J) agreed in Mineralogy Pty Ltd v Sino Iron Pty Ltd,[76] as follows:
The principles to be applied on an application for an interlocutory injunction are well-known and were not in dispute. The two main enquiries that arise are whether the plaintiff has made out a prima facie case and whether the balance of convenience favours the grant of the injunction. The first inquiry as to a 'prima facie case' does not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed. It is sufficient that the plaintiff show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the orders the plaintiff seeks. The second inquiry is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction was granted. Whether an applicant for an interlocutory injunction has made out a sufficient prima facie case and whether the balance of convenience favours the grant of such relief are related, not independent, questions. (citations omitted)
[76] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [87]. See also Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76; (2017) 55 WAR 36 [131].
In practice the notion that a plaintiff must show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo is expressed compendiously by asking the question: is there a serious question to be tried?[77]
[77] Australian Broadcasting Corporation v O'Neil [2006] HCA 46; (2006) 227 CLR 57 [70] (Gummow and Hayne JJ); Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] - [13] (Beech J).
In assessing whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction was granted, in other words assessing where the risk of an injustice lies, the court will consider whether the refusal of an injunction will have the practical effect of determining the claim for substantive relief against the plaintiff.[78] If so, that is a factor that favours the grant of an injunction.
[78] Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, 536.

Disposition

As was noted by counsel on behalf of MPMG, this is not the occasion to finally determine whether or not there was a scheme on the part of MPMG and AU KT to retain tenure in breach of s 45(2) and s 69(1) of the Mining Act; or whether s 116(2) of the Mining Act provides a complete defence to Mr McLevie's claims.[79] Rather, the question to be determined is whether Mr McLevie has established, at least on a prima facie basis, that there is merit to what he says sufficient to warrant an injunction, and whether the balance of convenience favours grant.

Serious question to be tried

[79] ts 28 (29 November 2021).

Mr McLevie by the application seeks that MPMG be restrained, contending that on the evidence filed, he has shown a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial. He seeks that MPMG be restrained from transferring or disposing of, or attempting to transfer or dispose of, or taking any steps to transfer or dispose of the acquired tenements.
As to the prima facie case, at this stage of the proceeding it is generally neither appropriate nor possible for the court to make findings in relation to contested factual matters. The relevant task of the court is to determine whether the evidence before it raises a triable issue, that is, whether there is an issue, or issues, that need to be determined by a trial.
In these reasons, I have set out in considerable detail Mr McLevie's pleaded case, the evidence read and relied upon, and the submissions made on behalf of all parties. There are difficulties with Mr McLevie's case. Large parts rely upon adverse inferences being drawn, and significantly, for the decision of the Court of Appeal in Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134 (Yarri Mining) to be found to be wrongly decided in light of the more recent decision of the High Court in Forrest v Forrest. That said, in all of the circumstances and having given careful consideration to the evidence read, the authorities referenced and the submissions made, I am satisfied that there are serious questions to be tried in relation to a number of relevant factual matters.

Primary claim - that MPMG participated in a 'scheme'

I understood there to be broadly two claims pleaded on behalf of Mr McLevie in the second further amended statement of claim.
The first is that MPMG, with Mr Rowling, Mr Kettlewell, Mr Vernon Strange and Mr McClaren, were parties to a scheme to circumvent the operation of s 45(2) and s 69(1) of the Mining Act. While a person who acts in contravention of or fails to comply in any respect with any provision of the Mining Act commits an offence against the Mining Act, and is liable to pay a fine,[80] Mr McLevie contends that tenements acquired in breach of s 45(2) and s 69(1) are liable to be declared invalid.
[80] Mining Act s 154(1), (2).
In this regard, Mr McLevie does not ground his claim solely on the basis that Mr Rowling, Mr Kettlewell, Mr Vernon Strange and Mr McClaren had been given prior notice of MPMG's intention to surrender certain tenements. It would appear well settled that there is nothing in the Mining Act that prohibits a surrendering holder from telling an applicant for grant of a tenement of the pending surrender and of the precise time and date that the surrender will be lodged, nor the applicant for grant of a tenement from making such an application having been told by the surrendering holder or any other person or class of persons of the pending surrender and of the precise time and date that the surrender will be lodged.[81] Rather, it is alleged that Mr Rowling, Mr Kettlewell, Mr Vernon Strange and Mr McClaren were acting for MPMG when they applied for tenements; and through Mr Rowling, Mr Kettlewell, Mr Vernon Strange and Mr McClaren, MPMG was in breach of s 45(2) and s 69(1) of the Mining Act.
[81] Korab Resources Ltd v Richmond [2007] WAMW 16 [43].
On the first, primary case as against MPMG, I understood Mr McLevie to say that a compelling inference may be drawn from the pattern that can be discerned from the series of dealings in relation to tenements, illustrated by the aide memoire provided to the court and reproduced at [46] above, and described at [48] to [73] above.[82] I understood it to be submitted that the inference was open, particularly when regard is had to the pattern of holding of various tenements by MPMG; the surrender of those tenements by MPMG in circumstances where there is only a small period of time as between the surrenders and the applications made; and the transfer of the granted applications to MPMG for what was described as nominal consideration. The evidence concerning the relationship as between Mr McClaren and the joint venture, of which MPMG was a part, is said to further support the inference (by reference to the matters set out at [72] above).
[82] See also ts 19, 20 (29 November 2021).
By a letter dated 16 February 2021, Gilbert + Tobin on behalf of Mr McLevie sought from MPMG an explanation in respect of the apparent scheme described in that letter (which focussed on the surrendered tenements and the role of Mr Kettlewell in the apparent scheme), and MPMG's alleged breaches of the Mining Act.[83] By a letter dated 19 March 2021, Ensign Legal proffered an explanation on behalf of MPMG. Among other things, the following explanation for the series of dealings concerning prospecting licence 77/4556, which was formerly prospecting licence 77/4315, was proffered on behalf of MPMG:[84]
P77/4315 was granted on 15 December 2015 and was due to expire on 14 December 2019. We are instructed that, when assessing the merits of applying for an extension of term application for a further period of 4 years, MPMG formed the view that it was in the best interests of the company to focus its resources on the group of mining tenements located to the north of its holding. On 25 November 2019, MPMG voluntarily surrendered P77 /4315.
…
We are instructed that Mr Kettlewell did not apply for P77/4556 for or on behalf of MPMG in contravention of section 45(2)(a) of the Mining Act. We are instructed that MPMG had voluntarily surrendered P77/4315 in order to focus its attention on its other mining tenements in the area and Mr Kettlewell applied for P77/4556 as he wished to work the ground. We are instructed that there was no relationship between MPMG and Mr Kettlewell.
As you would be aware, due to issues relating to COVID 19, in April 2020, the Government of Western Australia imposed a hard border which prevented persons from entering the state. During this period, Mr Kettlewell, who is based in Queensland, was unable to travel to Western Australia from Queensland in order to conduct prospecting activities on P77 / 4556. We are instructed that, Mr Kettlewell also lost his job due to the travel restrictions.
We are instructed that as a consequence of Mr Kettlewell's changed circumstances he determined that he would not be able to meet the minimum expenditure commitments on P77/4556 - being $7,240 for the 2020/2021 expenditure year. Consequently, Mr Kettlewell approached MPMG to buy P77/4556.
By this time, being some 8 months after the decision to surrender P77/4315, MPMG decided to revisit exploration of the ground.
At all relevant times, there was no relationship between Mr Kettlewell and MPMG, Mr Kettlewell did not have any rights or interests in MPMG, and Mr Kettlewell did not mark out P77/4556 for or on behalf of MPMG.
Any alleged wrongdoing by MPMG is denied and is without foundation.
[83] First McLevie affidavit, DWM54.
[84] First McLevie affidavit, DWM56, pars 3.3, 3.5 - 3.10.
MPMG's then solicitors also proffered an explanation of the circumstances in which the series of dealings concerning the surrender of the Old Prospecting Licences, Mr Rowling and MPMG came to pass, and all alleged wrongdoing was denied.[85]
[85] First McLevie affidavit, DWM56, pars 4.1 - 4.10.
As noted above, the first inquiry as to a 'prima facie case' does not mean that Mr McLevie must show that it is more probable than not that at trial he will succeed. On balance, on the evidence before me, I accept that there is evidence of a series of dealings, having regard to which the court may be willing to infer that Mr Rowling,

Mr Vernon Strange, Mr Kettlewell and Mr McClaren applied for tenements on behalf of MPMG. The ultimate disposition of this factual question is a matter for trial.
Whether there is prima facie evidence of a breach of the Mining Act is not however the end of the matter. The position advanced on behalf of MPMG by its former solicitors was that s 45(2) of the Mining Act is not a provision which contains a pre‑condition to the existence of a power, nor is it a provision which conditions the exercise of power. That is, if MPMG were to have breached s 45(2) of the Mining Act, MPMG may be liable to pay a fine, but such breach would not result in invalidity of tenure and the relief sought by Mr McLevie in this proceeding is not available to him.[86]
[86] First McLevie affidavit, DWM56, par 5.5, preferring at 5.4 to the decision of Anglogold Ashanti Australia Ltd v Monument Exploration Pty Ltd [2019] WAMW 13 [90] - [91].
In this regard, MPMG's former solicitors cited the decision of Yarri Mining, as did counsel for AU KT at the hearing of this application.[87] In respect to whether the act of applying for an exploration licence in breach of s 69 of the Mining Act invalidates the application and any subsequent grant, McLure P (with whom Owen JA and Buss JA agreed) in Yarri Mining found as follows:[88]
For these reasons I am satisfied that although an application is a precondition to the existence of the power in s 57(1), that condition is satisfied by the lodgement of an application in contravention of s 69(1). The conditions precedent being satisfied, the Minister had the power to grant an exploration licence over the overlapping area. Further, the failure to comply with s 69(1) falls within the scope of s 59(6)(b) and the first limb of s 116(2) with the consequence that the grant of both E39/876 and E39/877 is valid[.]
[87] ts 67 (29 November 2021).
[88] Yarri Mining [61], citing Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234; and Crocker Consolidated Pty Ltd v Wille [1988] WAR 187.
I understand Mr McLevie to contend that in light of the later decision of the High Court of Australia in Forrest & Forrest, it is arguable that the decision of the Court of Appeal in Yarri Mining was wrongly decided, and that the application of the analysis applied in Forrest & Forrest leads to findings that:
(a)non-compliance with s 69(1) and s 45(2) is a non‑compliance with provisions of the Mining Act, in circumstances where strict compliance is required; and
(b)non-compliance is no mere informality or irregularity, but that licences secured in circumstances of non-compliance are liable to be set aside.[89]
[89] See submissions made by counsel at ts 20 - 21 (29 November 2021).
Counsel for AU KT made brief submissions in relation to this contention.[90] On balance, I accept that having regard to the decision of the High Court in Forrest & Forrest, there is a serious question to be tried in this regard.

The alternative claim - that MPMG and AU KT participated in a 'scheme'

[90] ts 67 (29 November 2021).

The second pleaded claim is framed in the alternative. I understood Mr McLevie to contend that MPMG and AU KT, with Mr Rowling, Mr Kettlewell, Mr Vernon Strange and Mr McClaren, were parties to a scheme to circumvent the operation of s 45(2) and s 69(1) of the Mining Act. In this regard, it is alleged that when MPMG lodged surrender forms for the Old Prospecting Licences, prospecting licence 77/4315‑I, exploration licence 77/2199 and exploration licence 77/2287, it did so for and on behalf of MPMG and AU KT, as joint ventures under the JV Agreement, and that AU KT had a relevant interest in these tenements as at the date of surrender.
Further, it is alleged that Mr Rowling, Mr Kettlewell,

Mr Vernon Strange and Mr McClaren were acting for MPMG and AU KT when they applied for tenements; and through Mr Rowling, Mr Kettlewell, Mr Vernon Strange and Mr McClaren, MPMG and AU KT were in breach of s 45(2) and s 69(1) of the Mining Act.
On the alternative claim, I understood Mr McLevie to also contend that a compelling inference of the scheme may be drawn from the pattern that can be discerned from the series of tenement dealings illustrated by the aide memoire provided to the court and reproduced at [46] above, and described at [48] to [73] above.
As to the involvement of AU KT in the scheme, counsel for AU KT says that AU KT held no interest in the joint venture property until it gave an earn-in notice on 4 February 2021.[91] Mr McLevie contends otherwise and relies upon the terms of the JV Agreement, a copy of which is attached to his first affidavit and marked DWM60, and he pleads the effect of the same in relation to the surrendered tenements.
[91] ts 46 (29 November 2021).
The evidence of AU KT holding a form of interest in the surrendered tenements prior to surrender is strongest in relation to exploration licence 77/2287, as AU KT confirmed in the surrender report it filed on 15 June 2020 with the DMIRS that since 13 June 2019, AU KT had explored the licence under the JV Agreement with MPMG, until surrender of the licence on 30 March 2020.[92] The evidence concerning the relationship as between Mr McClaren and the joint venture further supports the inference (see [72] above).
[92] Second McLevie affidavit, DWM67.
There is also evidence that on 11 May 2020, MPMG amended its address for each of the acquired tenements to 'Mining Projects Management Group Pty Ltd, C/- AU KT Venture', before the letter agreement dated 18 January 2021.[93]
[93] First McLevie affidavit par 75; as pleaded in the second further amended statement of claim par 37.
Mr McLevie undertook a search of the Australian Securities Investments Commission register on 30 March 2021, which revealed that the company secretary of AU KT is Mr Bradley Strange and AU KT's sole shareholder is AU Resources Company Limited, a company incorporated in the British Virgin Islands.[94]
[94] First McLevie affidavit par 76, DWM66.
Again, the ultimate disposition of whether AU KT and MPMG together participated in a scheme is a matter for trial. The foundation of Mr McLevie's claim as against AU KT is one of inference. Other than inferences that may be drawn, the evidentiary foundation is limited. AU KT is a step further from the alleged scheme than MPMG, as registered holder of the tenements surrendered and acquired. However, taking into account all of the evidence, on balance, I accept that there is evidence of a series of dealings which, when regard is had to the JV Agreement and the other matters deposed to by Mr McLevie, there is a triable issue as to whether AU KT had an interest in the surrendered tenements prior to their surrender, and at trial, the court may be willing to infer that Mr Rowling, Mr Vernon Strange, Mr Kettlewell and Mr McClaren applied for tenements on behalf of MPMG and AU KT. There is a triable issue in respect of AU KT's knowing participation in the alleged scheme.
Again, whether there is prima facie evidence of a scheme which involved MPMG and AU KT is not the end of the matter. On the same basis as set out at [134] to [135] above, in light of the decision of the High Court of Australia in Forrest & Forrest, it is arguable that non‑compliance with s 45(2) and s 69(1) is non‑compliance with provisions which require strict compliance; and further, that such non‑compliance is no mere informality or irregularity but render the licences so obtained liable to be set aside.

The dealings

MPMG and AU KT contend that s 116(2) of the Mining Act prevents Mr McLevie from impeaching the acquired tenements, even if he were able to establish that the tenement dealings, as pleaded, gave rise to a breach of s 45(2) and s 69(1) of the Mining Act, and by that breach a basis for the acquired tenements to be set aside.
Both seek to rely upon the dealings as between themselves, namely the letter agreement, the deed of variation and the execution of transfer forms, and say that Mr McLevie cannot succeed if MPMG (as the registered holder of the acquired tenements) and AU KT have entered into one or more dealings for the purposes of s 116(2) of the Mining Act, absent any plea of fraud.
Mr McLevie pleads and makes submissions in relation to whether the letter agreement, the deed of variation and the transfers are in fact dealings. He raises a number of technical issues, submitting that there is a serious question to be tried as to whether the relief he seeks by way of declarations would be thwarted by purported dealings as between MPMG and AU KT, by operation of s 116(2).
My provisional view is that the technical issues raised by Mr McLevie in relation to the letter agreement, the deed of variation and the transfer forms are relatively weak. While I had regard to the difficulties in Mr McLevie's case in disposing of this application, my view is necessarily preliminary and I made no findings of fact in relation to the same.

Letter agreement

As to the letter agreement which is dated 18 January 2021, Mr McLevie contends that it is ineffective as a dealing as it is improperly executed (having been executed by only one director of each of MPMG and AU KT), and having been superseded by the deed of variation.[95] I understand this contention is raised in circumstances where neither MPMG nor AU KT were sole director companies, and the letter agreement recorded at the execution blocks that each entity executed the letter agreement in accordance with s 127(1) of the Corporations Act by the authority of its directors.
[95] Second further amended statement of claim par 38(ca); plaintiff's responsive submissions par 7(b).
I accept that failure by the company to comply with every requirement of s 127(1) or s 127(2) has the consequence that there is no due execution under s 127 of the Corporations Act. There is no provision in the Corporations Act which may cure this defect because the execution of a document by a company is not a 'proceeding under' the Corporations Act for the purpose of s 1322(1) and s 1322(2), nor is the failure to comply with s 127(1) or s 127(2) a 'contravention of a provision' of the Corporations Act for the purposes of s 1322(4)(a). However, I do not accept that the execution of the letter agreement by only one director of MPMG and AU KT necessarily renders it invalid as contended by Mr McLevie. The non-compliance with s 127 on the face of the document is not the end of the matter. This is so for two reasons.
First, provisions in the Corporations Act allow persons to assume that a document has been properly executed if it is executed in a certain way. Under s 128 and s 129 of the Corporations Act, the methods of execution which attract the right to assume proper execution are those detailed in s 127. The fact that only one director has signed a document despite the company having more than one director does not necessarily disentitle a person from relying on the assumptions outlined in s 129, with the result that the company may be bound by the agreement. The decision of the Court of Appeal in Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84 is one such example of this, albeit in different factual circumstances.[96]
[96] See also N Saady and T McClintock, 'To assume or not assume: An analysis of the statutory indoor management assumptions in ss 127 - 130 of the Corporations Act 2001 (Cth) and recent cases dealing with them' 33 Australian Journal of Corporate Law 250.
Secondly, s 127(4) of the Corporations Act provides that s 127 does not limit the ways in which a company may execute documents, including a deed. There are a number of different ways that a company might execute documents, including through an agent, as contemplated by s 126 of the Corporations Act. Put another way, a document may nevertheless be validly executed if, while not complying with s 127(1) or s 127(2), it complies with the requirements for the valid execution of documents laid down in some other law or in the company's constitution.
On behalf of Mr McLevie, it was also submitted that the letter agreement was superseded by the deed of variation, and accordingly could not be a valid dealing for the purpose of s 116(2) of the Mining Act. At the same time however, it is submitted on behalf of Mr McLevie that the deed of variation was ineffective. Maintaining both pleas, not in the alternative, appears to create difficulty for Mr McLevie.

Deed of variation

I understood counsel for Mr McLevie to concede that if the alternative claim was not successful (that is, if it was found that AU KT had not participated in the scheme), then Mr McLevie's contention that the deed of variation is not a dealing would largely fall away.[97]
[97] ts 24 (29 November 2021).
I understood Mr McLevie to allege that the deed of variation had been backdated to 1 February 2021. Mr McLevie pleads that the deed of variation is not enforceable as it was intended to effectuate the scheme; and/or was prompted by Mr McLevie's actions.
If executed on or about 25 February 2021, Mr McLevie pleads that the deed of variation is ineffective as it is intended to effectuate the scheme; and was executed by a person that was not at the time of execution a director.[98] As to the second point, Mr McLevie pleads that the deed of variation is said to be signed by Mr Qianrui (Stanley) Fu in his capacity as director of AU KT, in circumstances where Mr Fu ceased to be a director of AU KT on 20 February 2021.
[98] Second further amended statement of claim par 38CA; plaintiff's responsive submissions par 7(c).
The backdating of a document may render it void or unenforceable on public policy grounds if such backdating was fraudulent, that is, done with the intention to deceive.[99] However, fraud cannot be lightly inferred,[100] and there is evidence by way of communications attached to the affidavits of Ms Hill and Mr McCavana which appears to support the defendants' contention that these were dealings unprompted by Mr McLevie's allegations.
[99] See, for example, Linter Group Ltd v Goldberg (1992) 7 ACSR 580, 646 - 647.
[100] Briginshaw v Briginshaw (1938) 60 CLR 336, 362 - 363.

As to the execution of the deed of variation, I repeat my observations at [151] to [153] above. I do not accept that the execution of the deed of variation by Mr Fu necessarily renders it invalid or ineffective. Again, the non-compliance with s 127 on the face of the document is not the end of the matter.

Transfer forms

Mr McLevie contends that the purported transfer forms are ineffective as they were backdated; signed by a person who was not a director (if signed by Mr Fu at all); and based on ineffective instruments.[101]
[101] Second further amended statement of claim par 38(e); plaintiff's responsive submissions par 7(d).
The issues raised in relation to the transfer forms, which includes an issue as to whether a person other than Mr Fu applied his signature to the documents, are problematic. Further, the concern that the transfer forms were based on ineffective instruments is problematic in light of s 116(2) of the Mining Act. Assuming all of the dealings raised (being the letter agreement, the deed of variation and the transfer forms) were effective and are not nullities, subject to what I say below in relation to the scope of protection afforded by s 116(2), it would appear arguable that they would constitute 'dealings' within the second clause of s 116(2), adopting the broad meaning ascribed to that term by Tottle J in Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2021] WASC 356 [65].

What is the scope of the protection afforded by s 116(2)?

The High Court of Australia in Forrest & Forrest at [77] noted that s 116(2) of the Mining Act, by its second limb, corrects the invalidity of a tenement once it is subject to a dealing. As was recently observed by Tottle J in Wyloo Metals Pty Ltd v Quarry Park Pty Ltd at [98(d)], s 116(2) is a remedial provision, intended to provide protection to those who deal with the registered holders of mining tenements and a beneficial construction should be adopted.
I accept that while Mr McLevie has pleaded an alternate claim of AU KT having acted in breach of the Mining Act, Mr McLevie has not pleaded fraud by AU KT in respect of the purported dealings, and as counsel noted, not every contravention of legislation will necessarily amount to fraud.[102] However, I am satisfied there is a serious question to be tried as to the scope of protection afforded by s 116(2) of the Mining Act, and whether properly construed, it would extend protection to a person purporting to deal with a registered holder of a mining tenement where that person was engaged in a scheme to retain tenure in breach of s 45(2) and s 69(1) of the Mining Act. Put another way, there is a serious question to be tried as to whether s 116(2) of the Mining Act can be used by a participant in a scheme as a cleansing mechanism, to put beyond challenge tenure secured in circumstances of non‑compliance that might be otherwise liable to be set aside. The determination of that issue is a matter for trial.
[102] ts 64 (29 November 2021).
On the primary claim pleaded as against MPMG, no such question arises. It is only on the second, alternative pleaded claim, where AU KT is not an 'innocent party', that this serious question arises.

Balance of convenience

As to prejudice occasioned by the injunction, MPMG had noted that expenditure has been recorded on the acquired tenements.[103] As to balance of convenience, counsel for MPMG submitted that it is relevant to consider the effect that the restraint will have on AU KT and the utility of the relief sought in circumstances where there is no evidence of proposed third party dealings.[104]
[103] First McLevie affidavit, DWM58, par 4.2.
[104] First defendant's submissions par 11.
If only the primary claim were being prosecuted such that there was no claim made as against AU KT that it was a party to a breach of s 45(2) and s 69(1) of the Mining Act, having regard to the alleged dealings in the form of the letter agreement, the deed of variation and the transfer forms, on balance I would have concluded that Mr McLevie had not shown a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial.
On the primary claim, where no allegation is made as against AU KT, AU KT is an innocent party that simply acts and seeks to act in a manner consistent with its commercial rights and obligations under the JV Agreement. Typically, the balance does not favour the restraint of an innocent third party to that party's detriment. Further, I accept the submission made on behalf of AU KT that security of title and certainty of title are fundamental to the attainment of the objects of the Mining Act.[105] But for the alternative claim, the balance of convenience would weigh significantly in favour of refusal of the application.
[105] Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [95].
However, an alternative claim is pleaded and for the reasons set out above, I am satisfied that while there are difficulties with Mr McLevie's case, there is a prima facie case as against MPMG and AU KT, and a serious question to be tried as to whether the acquired tenements registered in the name of MPMG ought be set aside, and whether AU KT would fall within the scope of protection afforded by s 116(2).
Counsel for MPMG noted that in relation to the acquired tenements, there was no evidence of dealings, or proposed dealings, with third parties. The only evidence of purported and proposed dealings was as between MPMG and AU KT. Further, the question was asked that if, as Mr McLevie says, s 116(2) of the Mining Act does not provide MPMG and AU KT with any protection, then why should MPMG and AU KT be injuncted from consummating their commercial transaction?[106]
[106] ts 31 (29 November 2021).
Weighing in the balance against the factors to which I have referred is the concern that refusing the application may well have the effect of final relief, allowing for the registration of the executed transfer forms and potential further dealings.[107] Refusing the application opens the possibility of a further dealing with a third party with no involvement in the alleged scheme, which dealing would likely render nugatory Mr McLevie's claim. On balance, the concern is one that weighs significantly in favour of the continued operation of the injunction.
[107] ts 27 (29 November 2021).
I have considered the inconvenience and prejudice to the parties in order to determine the means by which the least injustice may be inflicted pending the ultimate resolution of the proceeding. On balance, I am satisfied that Mr McLevie has demonstrated a sufficient prima facie case as against MPMG and AU KT (by the alternative claim), to justify the continuation of the status quo when the balance of convenience is also considered.

Conclusion and orders

Notwithstanding the reservations I have expressed in relation to the strength of Mr McLevie's case I consider that the injunction should continue until the proceeding is substantively determined at an expedited trial. The status quo should be regarded as being the factual situation as at the second hearing, that is, the letter agreement, the deed of variation and the transfer forms had been executed but no transfer of interest in the acquired tenements in favour of AU KT had been registered.
It is appropriate that a strategic conference be listed shortly after delivery of these reasons, at which time trial dates will be fixed and orders may be made programming this matter to trial. I will also hear from the parties as to the appropriate form of order and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LP
Associate to the Honourable Justice Strk
18 AUGUST 2022