OIL BASINS LIMITED and BACKREEF OIL PTY LTD
[2015] WASAT 26
•18 MARCH 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PETROLEUM AND GEOTHERMAL ENERGY RESOURCES ACT 1967 (WA)
CITATION: OIL BASINS LIMITED and BACKREEF OIL PTY LTD [2015] WASAT 26
MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
HEARD: 18 SEPTEMBER 2014
DELIVERED : 18 MARCH 2015
FILE NO/S: CC 863 of 2014
BETWEEN: OIL BASINS LIMITED
Applicant
AND
BACKREEF OIL PTY LTD
Respondent
Catchwords:
Petroleum exploration permit - Exploration licence - PGER Act provisions analogous to provisions of Mining Act - Sale Agreement - 'Wrongly existing' - Ministerial discretion - Titles - Dealings - Transfer of title - Ministerial approval - Register open for public inspection - Amendment of Register - Clerical error or obvious defect
Legislation:
Interpretation Act 1984 (WA), s 18, s 19(1), s 19(2)
Mining Act 1978 (WA),s 57, s 58, s 59, s 59(6), s 61(1), s 66, s 67(1), s 74, s 75, s 82(1)(d), s 119, s 103C, s 103F, s 103F(4), s 103G,
Patents Act 1949 (UK), s 31(1), s 117
Patents Act 1990 (Cth), s 13, s 61, s 186(1), s 189, s 190(1), s 191A, s 192, s 195(1)
Petroleum and Geothermal Energy Resources Act 1967 (WA), s 30, s 31, s 32, s 37, s 38, s 39(1)(a), s 50(1), s 51, s 53, s 54(1), s 54(2), s 69J, s 70(1), s 70(2), s 72, s 75, s 75A, s 77, s 78, s 79, s 80, s 81, s 81A, s 82, s 82(1)
Shipping Registration Act 1981 (Cth), s 56, s 59, s 60
Transfer of Land Act 1983 (WA), s 48, s 58
Result:
Application dismissed
Summary of Tribunal's decision:
On 14 March 2014, the Minister for Mines and Petroleum granted a petroleum exploration permit jointly to Oil Basins Limited and Backreef Oil Pty Ltd and entered a memorial in those terms in the Register kept by the Minister.
On 24 June 2014, Oil Basins applied for an order that the Minister amend the entry in the Register by removing all references to Backreef. Oil Basins also asked that the Tribunal amend the Register under the Petroleum and Geothermal Energy Resources Act 1967 (WA).
Oil Basins contended that the entry was 'wrongly existing' because, prior to the date of the entry, Backreef had assigned all of its right, title and interest in the permit application to Buru Energy Limited by a sale agreement dated 25 September 2012.
Oil Basins' application was premised on the basis that Backreef could effect a valid assignment without Ministerial approval.
The Tribunal found that the sale agreement did not have the effect contended for by Oil Basins and that, accordingly, the entry was not 'wrongly existing' in the Register.
Oil Basins' application was dismissed.
Category: B
Representation:
Counsel:
Applicant: Mr M Bennett and Mr M Bruce
Respondent: Mr M Hardy and Mr D Anderson
Solicitors:
Applicant: Bennett & Co
Respondent: Hardy Bowen
Case(s) referred to in decision(s):
Adstream Harbour Pty Limited v The Register of the Australian Register of Ships [2005] FCA 1324
Arbitron v Telecontrol Aktiengesellschaft [2010] FCA 302
Austming Trade Pty Ltd v MindsInSync Inc 104 IPR 148
Chevron Australia Pty Ltd v The Registrar of the Australian Register of Ships [2011] FCA 265
Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211
General Credits (Finance) Pty Ltd v Registrar of Ships 44 ALR 571
General Credits (Finance) Pty Ltd v Registrar of Ships and Another (1982) 44 ALR 571
General Tire & Rubber Company (Frost's) Patent (1972) FSR 83
H Lundbeck A/S v Commissioner of Patents 67 IPR 654
Johnson & Johnson v Self Care Corporation Pty Ltd 109 IPR 260
Kimberly-Clark Australia Pty Ltd v Multigate Medical Products Pty Ltd [2010] FCA 1318
Neobev Pty Ltd v Bacchus Distillery Pty Ltd (Administrators Appointed) No 4 [2014] FCA 21
Parke Davis Pty Ltd v Sanofi & Commissioner of Patents (1982) AIPC 90-010
R v Commissioner of Patents; Ex parte Martin 89 CLR 381
Tisand (Pty) Ltd and Others v The Owners of the Ship MV 'Cape Moreton' ('Ex Freya') [2005] FCAFC 68; (2005) 219 ALR 48
Watson v National Companies and Securities Commission [1988] WAR 3321
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 14 March 2014, the delegate of the Minister for Mines and Petroleum (the Minister):
a)granted petroleum exploration permit, EP 487, jointly to Oil Basins Limited (Oil Basins) and Backreef Oil Pty Ltd (Backreef) pursuant to s 32 of the Petroleum and Geothermal Energy Resources Act 1967 (WA) (the PGER Act), and
b)entered a memorial in those terms (the Entry) in the Register kept by the Minister pursuant to s 70 of the PGER Act (the Register).
On 24 June 2014, Oil Basins applied for an order under s 82(1)(c) of the PGER Act that the Minister amend the Entry in the Register by removing all references to Backreef.
Oil Basins relies on the Tribunal's power to amend the Register under s 82(1)(c) of the PGER Act.
Section 82 of the PGER Act relevantly provides:
(1)A person aggrieved by -
(a)the omission of an entry from the Register; or
(b)an entry made in the Register without sufficient cause; or
(c)an entry wrongly existing in the Register; or
(d)an error or defect in an entry in the Register,
may apply to the State Administrative Tribunal in its original jurisdiction for such order as the Tribunal thinks fit directing the rectification of the Register.
(2)The Tribunal may, in proceedings under this section, decide any question that it is necessary or expedient to decide in connection with the rectification of the Register.
Oil Basins contends that the Entry is 'wrongly existing' because prior to the date of the Entry, Backreef had assigned all of its right, title and interest in the permit application to Buru Energy Limited (Buru) by a sale agreement dated 25 September 2012 (the Sale Agreement).
Oil Basins' application is premised on the basis that Backreef could effect a valid assignment without Ministerial approval.
The Tribunal finds that the Sale Agreement did not have the effect contended by Oil Basins and that, accordingly, the Entry is not 'wrongly existing' in the Register.
Oil Basins' application is dismissed.
The facts
The Minister invited applications for the grant of an exploration permit for Canning Basin Area 07-1 (s 30 of the PGER Act).
By application 5/078, dated 20 September 2007, Backreef applied for an exploration permit in relation to Canning Basin Area L071 (Exhibit 1, page 1) (s 31(1) of the PGER Act). The details of the proposed permit and a map of the area appear at Exhibit 1, pages 13 15. The area was later identified as 5/0708 EP.
By Heads of Agreement dated 21 September 2007, Backreef and Oil Basins relevantly agreed that:
1.The respective shares of the parties to this agreement in the Application for L071 will be Backreef 50% and OBL 50% and for any granted tenements resulting from this application.
2.Upon being offered any tenements arising from the Application, the parties agree to enter into a Joint Operating Agreement which will govern the conduct of the Joint Venture between them.
3.Backreef will make the Application on behalf of the joint applicants.
(Exhibit 1, page 3)
By letter dated 11 December 2007, the Director of the Petroleum and Royalties Division of the Department of Industry and Resources (the Department), advised Backreef and Oil Basins that they were the preferred applicants (Exhibit 1, page 4) (s 32A PGER Act).
The area of application 5/078 was partially within the area of a registered native title claim (Exhibit 1, page 11). Before an exploration permit could be issued that native title claim had to be resolved.
On 25 September 2012, Backreef and Buru entered into the Sale Agreement some seven years after the original application.
The Sale Agreement relevantly provided:
The purpose of this document is to record the terms of the agreement reached between Buru and Backreef in relation to the acquisition of Backreef's interest in the Application. This sale agreement is intended to be binding and no further definitive documentation is required to effect the purchase of Backreef's interest in the application.
1Definitions
In this agreement, unless the contrary intention appears:
Application means the application for Petroleum Exploration Permit 05/078 for area L071 and associated rights, or any replacement or substitution of that application.
Application Interest means all of the Seller's right, title and interest in the Application, being a 50% interest in the Application.
…
Permit means the petroleum exploration permit that results from the Application
Permit Transfer means the approval and registration of a transfer of the Permit pursuant to section 72 of the Petroleum Act, such that the Buyer becomes a titleholder with a 50% interest in the Permit.
…
4Sale and Purchase
The Seller agrees to sell and the Buyer agrees to buy, free from any Encumbrance, all of the Application Interest, for the Purchase Price, on the terms and conditions of this agreement.
5Purchase Price
The purchase price for the Application Interest is a payment of AUD 3,500,000, payable upon the Permit Transfer.
6Payment of the Purchase Price
As soon as practicable after grant of the Permit, the Buyer will arrange for requesting (and make any payments required for) the approval and registration of:
(a)this agreement as a dealing pursuant to section 75 of the Petroleum Act; and
(b)a transfer of the Permit pursuant to section 72 of the Petroleum Act, such that following this approval and registration, the Buyer would become a titleholder with a 50% interest in the Permit.
Upon the Permit Transfer, the Buyer will pay the Purchase Price to the Seller.
In the even there is no Permit Transfer, the Purchase Price will not be payable.
…
8Conduct of business pending the Permit Transfer
Pending the Permit Transfer, the Seller must:
(a)hold the Application Interest on trust absolutely for the Buyer and provide the Buyer with all necessary assistance for the Buyer to promptly request the approvals and registrations described in clause 6;
(b)act on the Buyer's instructions in the management of the Application with the Department of Mines and Petroleum until the Permit is issued;
(c)delegate to the Buyer all dealings with [Oil Basins Limited] (including any negotiations with [Oil Basins Limited] regarding a [joint operating agreement] and not contact [Oil Basins Limited] on matters relating to this agreement without the Buyer's consent;
(d)ensure any [joint operating agreement] entered into between [Oil Basins Limited] and the Seller is in a form approved by the Buyer;
(e)continue to manage and act as the point of contact for all native titles issues (primarily the [National Native Title Tribunal] Proceedings and subsequent execution of documentation) but notifying the Buyer of all native title issues and acting on the Buyer's instructions; and
(f)take all steps to ensure that the Permit is issued in good time.
9Power of attorney
The Seller grants the Buyer an irrevocable power of attorney to execute any document or take any action that the Seller is obliged to execute or do pursuant to this agreement, but does not execute or do within a reasonable time.
…
11.Termination
This agreement, other than clauses 14 and 16, will terminate at the earlier of either:
(a)the payment of the Purchase Prince pursuant to clause 6; and
(b)31 December 2013, unless agreed otherwise by the patries.
…
13.Further assurances
The parties agree to do everything reasonably necessary to give effect to this agreement and the transactions contemplated by it (including the execution of documents) and to use all reasonable endeavours to cause relevant third parties to do likewise.
…
Buru made an announcement to the Australian Stock Exchange (the ASX) on 26 September 2012 advising of the Sale Agreement. The announcement relevantly stated:
Application area 5/078 ('Derby Block')
Native title agreements are currently being negotiated prior to grant of the permit in respect of application area 5/078. Negotiations are expected to conclude later this year or early in 2013. On grant of the permit, Buru will acquire and pay for the 50% interest currently held by Backreef Oil Pty Ltd. Although the Derby Block exploration potential is less well developed than the Fitzroy Permits, it includes the Laurel tight gas play, an untested conventional Devonian reef oil play, and shallow oil conventional plays.
(Exhibit 1, page 25)
On 27 September 2012, Buru further announced to the ASX that it had raised $40 million to fund, amongst other things, a 'right to acquire a 50% interest in the permit to be issued in respect of application area 5/078 for $3.5 million' ('Acquisitions') (Exhibit 1, page 79).
On 11 October 2012, Buru wrote to Oil Basins to inform it of the existence of the Sale Agreement. The letter relevantly stated:
…
I confirm that Buru Energy Limited (Buru) has entered into a sale agreement with Backreef Oil Pty Ltd (Backreef) pursuant to which Buru agreed to buy, and Backreef agreed to sell, Backreef's right, title and interest in exploration permit application 5/078 EP (Application).
Although the terms of the sale agreement are confidential, I confirm that:
•until the exploration permit resulting from the Application is granted and the transfer of Backreef's 50% interest in the exploration permit to Buru is registered, Backreef holds its right, title and interest in the Application on trust for Buru;
•Backreef has delegated all dealings with Oil Basins Limited (OBL) to Buru including the negotiation of a joint operating agreement; and
•Backreef has agreed to act on Buru's instructions in relation to native title matters, including the proceedings before the National Native Title Tribunal.
…
(Exhibit 1, page 94)
Although the document is headed 'Sale Agreement', Oil Basins contends that it is an absolute assignment.
On 21 December 2012, Oil Basins wrote to Backreef denying the validity of Backreef's 'assignment' (Exhibit 1, pages 101 102).
On 1 July 2013, Buru wrote to the Manager of the Petroleum Register for the Department stating that Backreef and Buru had entered into the Sale Agreement and that Backreef 'would seek to assign' to Buru the whole of Backreef's interest in any permit granted pursuant to the Permit Application (Exhibit 2, page 22).
On 28 February 2014, the Department issued a Notice of Intention to Grant a Petroleum Exploration Permit, 5/078 EP, to Backreef and Oil Basins (Exhibit 2, pages 106 112) (s 32(1) PGER Act).
Backreef, on 28 February 2014, and Oil Basins, on 7 March 2014, requested that the Minister grant a Petroleum Exploration Permit to Backreef and Oil Basins (Exhibit 1, pages 113 114) (s 32(3) PGER Act).
Oil Basins' request to the Minister of 7 March 2014 did not assert that Backreef had assigned all its right, title and intent in the permit application to Buru by the Sale Agreement, nor that the exploration permit should be granted solely to Oil Basins.
On 14 March 2014, the Minister issued Exploration Permit EP 487 for the blocks the subject of application 5/07-08 EP (s 32(4) PGER Act). On 14 March 2014, the delegate of the Minister entered Backreef and Oil Basins in the Register as the permit holders of Exploration Permit EP 487 (s 70 PGER Act).
The delegate of the Minister imposed conditions, including clause 5:
Upon assignment of the petroleum title, the assignee shall be bound by these conditions.
(Exhibit 1, pages 126 133)
The interpretation of s 82 of the PGER Act
In interpreting s 82 of the PGER Act, it is important to understand s 82 in the context of the PGER Act.
Section 18 of the Interpretation Act 1984 (WA) (the Interpretation Act) provides:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
There is no documentation within s 19(2) of the Interpretation Act that assists in the construction of s 81 of the PGER Act.
In Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211 (Abbotts), Buss JA (Newnes JA concurring) stated at [91]:
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).
The relevant legislation
The PGER Act and the Mining Act
In Western Australia, petroleum and geothermal products are covered by the PGER Act and minerals are covered by the Mining Act 1978 (WA) (the Mining Act).
Many of the provisions of the PGER Act are analogous to the provisions of the Mining Act. Accordingly, decisions on analogous provisions of the Mining Act provide authoritative guidance as to the interpretation of the PGER Act.
The statutory framework of the PGER Act and the Mining Act
The nature of a permit to explore
PGER Act
A petroleum exploration permit is granted under s 37 of the PGER Act. Section 38 of the PGER Act authorises the holder of the permit (the permittee) to explore for petroleum and to carry on such operations and execute such works as are necessary for that purpose in the permit area (s 38 PGER Act).
Mining Act
An exploration licence, issued under s 59(6) of the Mining Act, is the equivalent of a petroleum exploration permit. Section 66 of the Mining Act authorises the holder of an exploration licence to explore for minerals and to carry on such operations and carry out such works as are necessary for that purpose.
The form of the application
PGER Act
Section 30 of the PGER Act requires the Minister to invite applications for the grant of a petroleum exploration permit in the Western Australian Government Gazette.
An application for a petroleum exploration permit (a permit application) is made under s 31 of the PGER Act.
Section 31(1)(d) of the PGER Act relevantly requires a permit application to be accompanied by:
… particulars of -
(i)the proposals of the applicant for work and expenditure in respect of the blocks specified in the application; and
(ii)the technical qualifications of the applicant and of his employees; and
(iii)the technical advice available to the applicant; and
(iv)the financial resources available to the applicant[.]
The Minister may require the applicant to furnish further information in connection with the application (s 31(4) PGER Act).
Mining Act
An application for an exploration licence is made under s 58(1) of the Mining Act.
Section 58(1)(b) of the Mining Act requires that an application for an exploration licence:
… be accompanied by a statement specifying -
(i)the proposed method of exploration of the area in respect of which the licence is sought; and
(ii)the details of the programme of work proposed to be carried out in such area; and
(iii)the estimated amount of money proposed to be expended on the exploration; and
(iv)the technical and, subject to subsection (1aa), financial resources available to the applicant[.]
The mining registrar or warden may require the applicant to furnish further information in connection with the application (s 58(3) Mining Act).
The procedure for a grant of a permit
PGER Act
If there is more than one applicant for the grant of a petroleum exploration permit, the Minister may grant the permit to the applicant most deserving of the grant of the permit (s 32A(2) PGER Act).
Where a permit application has been made under the PGER Act, the Minister may inform the applicant by instrument in writing that the Minister is prepared to grant a permit or refuse to grant a permit (s 32(1)). Section 32(2) of the PGER Act provides that the instrument in writing must contain a summary of the conditions on which the Minister is prepared to grant a permit and a time limit within which the applicant must make a request under s 32(3) of the PGER Act.
If the conditions prepared by the Minister are acceptable to the applicant, the applicant may request the Minister to grant the permit (s 32(3) PGER Act).
The Minister shall then grant the permit (s 32(4) PGER Act).
Mining Act
The procedure for the grant of an exploration licence under the Mining Act is different to that of an exploration permit under the PGER Act. Section 59 of the Mining Act provides for a recommendation to be made by a mining registrar or warden. The Minister may, on the application of any person, and after receiving a recommendation of the mining registrar or the warden, grant to that person an exploration licence on such terms and conditions as the Minister may determine (s 57 Mining Act).
The PGER Act ultimately requires the Minister to assess the application in order to determine whether a petroleum exploration right will be granted. If the Minister requires further information, s 31(4) enables the Minister to obtain it.
Minister's decision discretionary
The PGER Act has no recommendation provision equivalent to s 57 of the Mining Act. Ultimately, the Minister may grant or refuse an exploration licence under the PGER Act as the Minister thinks fit, irrespective of whether the registrar or warden's report recommends the grant or refusal of the exploration licence.
Although the procedure for the grant of a petroleum exploration permit under the PGER Act is somewhat different to the application for an exploration licence under the Mining Act, in both cases ultimate discretion rests with the Minister.
The transition from exploration to production
The nature of a right to produce
PGER Act petroleum production licence
A permittee whose petroleum exploration permit is in force may apply to the Minister for the grant of a petroleum production licence over the blocks the subject of the petroleum exploration permit (s 50(1) of the PGER Act).
Mining Act mining lease
A mining lease under the Mining Act is the equivalent of a petroleum production licence under the PGER Act. The holder of an exploration licence has the right to apply for a mining lease over the land the subject of the exploration licence (s 67(1) Mining Act).
Term
PGER Act
Section 39(1)(a) of the PGER Act provides:
[I]n the case of a permit granted otherwise than by way of the renewal of a permit - for a period of 6 years commencing on the day on which the permit is granted or, if a later day is specified in the permit as being the day on which the permit is to come into force, on that later day[.]
Mining Act
Section 61(1) of the Mining Act provides:
An exploration licence shall, subject to this Act, remain in force for a period of 5 years from and including the date on which it was granted, and shall then expire.
The form of the application for a right to produce
PGER Act
Section 51 of the PGER Act provides that:
(1)An application under section 50 or 50A [for a petroleum production licence]
[(a) deleted]
(b)shall be made in an approved manner; and
(c)shall be accompanied by particulars of the proposals of the applicant for work and expenditure in respect of the area comprised in the blocks specified in the application; and
(d)may set out any other matters that the applicant wishes the Minister to consider; and
(e)shall, in the case of an application for the grant of a licence, be accompanied by the prescribed fee.
(2)The Minister may, at any time, by instrument in writing served on the applicant, require him to furnish, within the period specified in the instrument, further information in writing in connection with his application.
Mining Act
Section 74 of the Mining Act provides:
(1)An application for a mining lease -
(a)shall be in the prescribed form; and
(b)shall be accompanied by the amount of the prescribed rent for the first year of the term of the lease or portion thereof as prescribed; and
(c)shall be accompanied by the prescribed application fee; and
(ca)shall be accompanied by -
(i)a mining proposal; or
(ii)a statement in accordance with subsection (1a) and a mineralisation report prepared by a qualified person; or
(iii)a statement in accordance with subsection (1a) and a resource report;
and
(d)shall be lodged in the prescribed manner.
…
(2)The applicant shall at the request of the mining registrar or warden furnish such further information in relation to the application, or such evidence in support thereof, as the mining registrar or warden may require but the mining registrar or warden shall not require any information or evidence relating to assays or other results of any testing or sampling that the applicant may have carried out on the land the subject of his application.
…
The procedure for the issue of a right to produce
PGER Act
Section 53 of the PGER Act provides for the Minister to inform the applicant that the Minister is prepared:
a)to grant a production licence, and the conditions on which the licence is to be granted and the royalty rates; or
b)to refuse the application.
A successful applicant may apply to the Minister for the grant of a petroleum licence (s 54(1) PGER Act).
Section 54(2) of the PGER Act provides:
Where an applicant on whom there has been served an instrument under section 53(1) has made a request under subsection (1) within the period applicable under subsection (1), the Minister shall grant to the applicant a petroleum production licence or geothermal production licence, as the case requires, in respect of the block or blocks as to which the Minister is satisfied as mentioned in section 53(1)(c) or (2A)(c).
Mining Act
The procedure for the grant of a mining lease under the Mining Act is different to that for a petroleum production permit under the PGER Act.
Section 75 of the Mining Act provides for a mining registrar or warden to make a recommendation to the Minister. The Minister may grant or refuse the mining lease as the Minister thinks fit (s 75(6) Mining Act). The mining lease is granted on such terms as the Minister thinks fit (s 75(7)(e) Mining Act).
Minister's decision discretionary
Although the procedure for the grant of a petroleum exploration permit under the PGER Act is somewhat different to the application for an exploration licence under the Mining Act, in both cases ultimate discretion rests with the Minister.
Titles and dealings definitions
PGER Act
The PGER Act makes a distinction between a transfer of title and a dealing. Once a title has been issued, it may be dealt with subject to the Minister's consent.
Section 69J of the PGER Act provides:
[a] title means a permit, drilling reservation, lease, licence or access authority.
A dealing is not defined per se. Rather, it is defined by reference to the effects of certain transactions set out in s 75(1)(a) (g) of the PGER Act. These include:
(a)the creation or assignment of an interest in an existing title;
(b)the creation or assignment of a right (conditional or otherwise) to the assignment of an interest in an existing title[.]
(a s 75(1) dealing)
A s 75(1) dealing relates to an existing permit, drilling reservation, lease or licence.
The PGER Act makes a distinction between an existing title, including a permit, (s 75), and a title that may come into existence, that is, a provisional application (s 75A).
Mining Act
The Mining Act does not make any relevant distinction between a dealing and a transfer.
Transfer of Title Form of application PGER Act only
Section 72 of the PGER Act provides:
…
(2)Where it is desired that a title be transferred, one of the parties to the proposed transfer may make an application in writing to the Minister for approval of the transfer.
(3)An application for approval of a transfer of a title shall be accompanied by -
(a)an instrument of transfer in the prescribed form executed by the registered holder or, if there are 2 or more registered holders, by each registered holder and by the transferee or, if there are 2 or more transferees, by each transferee; and
(b)in a case where the transferee or one or more of the transferees is not a registered holder, or are not registered holders, of the title, an instrument setting out -
(i)the technical qualifications of that transferee or those transferees; and
(ii)details of the technical advice that is or will be available to that transferee or those transferees;
and
(iii)details of the financial resources that are or will be available to that transferee or those transferees;
and
(c)one copy of the application and of the instrument referred to in paragraph (a).
…
Section 72(3) largely mirrors s 31(1)(d) of the PGER Act.
Provisional application PGER Act only
Section 75A of the PGER Act provides:
(1)Where 2 or more persons enter into a dealing relating to a title that may come into existence in the future and that dealing would, if the title came into existence, become a dealing to which section 75 applies, a person who is a party to the dealing may, during the prescribed period in relation to the title, lodge with the Minister -
(a)in a case where the dealing relates to only one title that may come into existence in the future, a provisional application in writing for approval by the Minister of the dealing; or
(b)in any other case, a separate provisional application in writing for approval by the Minister of the dealing in relation to each title that may come into existence in the future and to which the dealing relates.
(2)Section 75(4), (7) and (8) applies to a provisional application lodged under subsection (1) as if that provisional application were an application lodged under section 75(3).
(3)Where -
(a)the title to which a dealing referred to in subsection (1) relates comes into existence; and
(b)upon that title coming into existence, the dealing becomes a dealing to which section 75 applies,
the provisional application lodged under subsection (1) in relation to the dealing shall be treated as if it were an application lodged under section 75(3) on the day on which that title came into existence.
…
Dealings form of application PGER Act only
Section 75 of the PGER Act provides:
…
(3)A party to a dealing to which this section applies may lodge with the Minister -
(a)in a case where the dealing relates to only one title, an application in writing for approval by the Minister of the dealing; or
(b)in any other case, a separate application in writing for approval by the Minister of the dealing in relation to each title to which the dealing relates.
(4)An application under subsection (3) for approval of a dealing -
(a)shall be accompanied by the instrument evidencing the dealing or, if that instrument has already been lodged with the Minister for the purposes of another application, a copy of that instrument; and
(b)may be accompanied by an instrument setting out such particulars (if any) as are prescribed for the purposes of an application for approval of a dealing of that kind.
…
Transfer - Minister's approval
Section 72(7) of the PGER Act provides:
Where an application for approval of the transfer of a title is made in accordance with this section, the Minister shall, by notice in writing served on the person who made the application, inform the person of the decision of the Minister.
Dealings Minister's approval PGER Act only
Section 75 of the PGER Act provides:
…
(6)Where a dealing relating to a title was, immediately before the title came into existence, a dealing referred to in section 75A(1), the Minister shall not approve the dealing unless -
(a)a provisional application for approval of the dealing was lodged in accordance with section 75A(1); or
(b)an application for approval of the dealing is lodged with the Minister in accordance with this section within 3 months after the day on which the title came into existence or such longer period as the Minister, in special circumstances, allows.
…
(10)The Minister may approve or refuse to approve a dealing to which this section applies in so far as the dealing relates to a particular title.
…
(13a)The approval of a dealing or the making of an entry in the Register in relation to a dealing is not rendered ineffective by any failure to comply, in relation to the application for approval of the dealing, with the requirements of this section.
…
Mining Act - Dealings
Section 82(1)(d) of the Mining Act provides:
Every mining lease shall contain and be subject to the prescribed covenants by the lessee and in particular shall be deemed to be granted subject to the conditions that the lessee shall -
…
(d)not transfer or mortgage a legal interest in such land or any part thereof without the prior written consent of the Minister, or of an officer of the Department acting with the authority of the Minister[.]
Section 119 of the Mining Act provides:
(1)Subject to this Act a mining tenement may be sold, encumbered, transmitted, seized and sold to satisfy a judgment, or otherwise disposed of.
(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.
The PGER Act - the Register
Section 70(1) of the PGER Act provides that '[f]or the purposes of this Part, the Minister shall keep a Register of titles … granted by him'.
The Minister is required to enter in the Register a memorial setting out the matters as detailed in s 70(2) of the PGER Act, including:
1)the name of the holder of the title;
2)an accurate description of the permit area; and
3)any further matters relating to the terms and conditions of the title as the Minister deems proper and expedient in the public interest.
The Mining Act the Register
Section 103F of the Mining Act provides:
(1)The Director General of Mines is to cause a register to be compiled and maintained.
(2)The register is to contain such particulars, relating to mining tenements and applications for mining tenements, as are prescribed.
(3)The register may be compiled and maintained in such form as the Director General of Mines determines.
…
Section 103C of the Mining Act provides:
(1)This section applies to the following instruments -
(a)a dealing; [means a transfer or mortgage of a legal interest in a mining tenement s 8]
(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 section 26A, 65 or 95;
(e)a tax memorial;
(f)a withdrawal of memorial.
(2)An instrument to which this section [103C] applies is to be -
(a)lodged for registration in the prescribed manner and prescribed form; and
(b)accompanied by the fee (if any) prescribed in respect of the instrument.
(3)Only an instrument to which this section applies may be registered.
(4)The registration of an instrument is to be effected by an authorised officer.
…
Section 103C(1) permits only a limited class of instruments to be registered.
Register open for inspection
Both the PGER Act (s 80) and the Mining Act (s 103F(4)) provide that the Register is open for public inspection.
Effect of registration
PGER Act transfer of title
Section 72 of the PGER Act provides:
(1)A transfer of a title is of no force until it has been approved by the Minister and an instrument of transfer is registered as provided by this section.
…
(10)Upon the entry in the Register of a memorandum of the transfer of a title and of the name of the transferee or each transferee in accordance with subsection (9) -
(a)the transfer shall be deemed to be registered; and
(b)the transferee becomes the registered holder, or the transferees become the registered holders, of the title.
…
(13)The mere execution of an instrument of transfer of a title creates no interest in the title.
PGER Act - dealings
Section 75 of the PGER Act provides:
(1)This section applies to a dealing that would, but for subsection (2), have one or more of the following effects -
(a)the creation or assignment of an interest in an existing title;
(b)the creation or assignment of a right (conditional or otherwise) to the assignment of an interest in an existing title;
…
(2)A dealing to which this section applies is of no force in so far as the dealing would, but for this subsection, have an effect of a kind referred to in subsection (1) in relation to a particular title until -
(a)the dealing, in so far as it relates to that title, has been approved by the Minister; and
(b)an entry has been made in the Register in relation to the dealing by the Minister in accordance with subsection (12).
…
Section 77 of the PGER Act provides:
Neither the Minister nor a person acting under his direction or authority is concerned with the effect in law of any instrument lodged with him in pursuance of this Division nor does the approval of a transfer or dealing give to the transfer or dealing any force, effect or validity that the transfer or dealing would not have had if this Division had not been enacted.
Mining Act dealings
Section 103C of the Mining Act provides:
…
(6)Neither the Minister nor an authorised officer is concerned with the effect any instrument lodged under this section may have at law other than for the purposes of this Act.
(7)The acceptance of an instrument for registration does not give to it any priority (other than in so far as registration may be taken to be constructive notice), force, effect or validity that it would not have had if this section had not been enacted.
(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 this section.
Time for applications
PGER Act
Section 72(4) of the PGER Act provides:
The Minister shall not approve the transfer of a title unless the application was lodged with the Minister within 3 months after the day on which the party who last executed the instrument of transfer so executed the instrument of transfer or within such longer period as the Minister, in special circumstances, allows.
Section 75 of the PGER Act provides:
…
(5)Subject to subsection (6), the Minister shall not approve a dealing unless the application for approval of the dealing is lodged with the Minister within 3 months after the day on which the party who last executed the instrument evidencing the dealing so executed the instrument or such longer period as the Minister, in special circumstances, allows.
(6)Where a dealing relating to a title was, immediately before the title came into existence, a dealing referred to in section 75A(1), the Minister shall not approve the dealing unless -
(a)a provisional application for approval of the dealing was lodged in accordance with section 75A(1); or
(b)an application for approval of the dealing is lodged with the Minister in accordance with this section within 3 months after the day on which the title came into existence or such longer period as the Minister, in special circumstances, allows.
Obligation on person lodging application to provide information
Sections 78 and 79 of the PGER Act enable the Minister to seek further information or documents relating to a transfer or dealing.
Amendment of the Register
PGER Act
Section 81A of the PGER Act provides:
(1)The Minister may alter the Register for the purposes of correcting a clerical error or an obvious defect in the Register.
(2)Subject to subsection (3), the Minister may, on application being made in writing to the Minister by a person or of the Minister’s own motion, make such entries in the Register as the Minister considers appropriate for the purposes of ensuring that the Register accurately records the interests and rights existing in relation to a title.
…
Section 82 of the PGER Act relevantly provides:
1)A person aggrieved by -
(a)the omission of an entry from the Register; or
(b)an entry made in the Register without sufficient cause; or
(c)an entry wrongly existing in the Register; or
(d)an error or defect in an entry in the Register,
may apply to the State Administrative Tribunal in its original jurisdiction for such order as the Tribunal thinks fit directing the rectification of the Register.
(2)The Tribunal may, in proceedings under this section, decide any question that it is necessary or expedient to decide in connection with the rectification of the Register.
…
Mining Act
Section 103G of the Mining Act provides:
(1)A person may apply in the prescribed manner and prescribed form for the amendment of particulars in the register relating to a mining tenement, or an application for a mining tenement, in which that person has an interest.
(2)If, on an application under subsection (1), an authorised officer is satisfied that there is reasonable cause for the amendment, the authorised officer may amend the particulars accordingly.
(3)An authorised officer may amend, add to and correct the register in such manner as is necessary to make the register an accurate record of the particulars it contains.
The primary object of the PGER Act
In Abbotts, the Court of Appeal explained that:
57The 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.
58The 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).
…
65An 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).
The matters in relation to the Mining Act referred to in Abbotts by the Court of Appeal apply equally to the objects and nature of the PGER Act.
One of the objects of the PGER Act is that the issue of titles, the transfer of and dealings in titles, should be subject to the stringent condition of Ministerial approval. The requirement for Ministerial approval is far more extensive than that under the Mining Act.
The effect of the Sale Agreement
At the heart of Oil Basins' application is the following contention:
2.1The entry recording Backreef Oil Pty Ltd (Backreef) as joint title holder with the Oil Basins Limited (Oil Basins) is 'wrongly existing' because prior to the date of the entry, 14 March 2014, Backreef had assigned all of its right, title and interest in the Permit Application to Buru Energy Limited (Buru) pursuant to a Sale Agreement dated 25 September 2012[.]
Oil Basins expands on that contention at paragraphs 54 57 of its submissions. Relevantly, those submissions state:
Backreef was not a title holder at the time of the Permit Request
54The entry made on the Register specifying Backreef as a title holder is 'wrongly existing' for the following reasons:
54.1On 25 September 2012, Backreef assigned the title of the Application Interest to Buru pursuant to the Sale Agreement.
54.2By reason of the Sale Agreement, at the time of executing its Permit Request on 28 February 2014, Backreef had assigned its title to the Application Interest.
54.3On 14 March 2014, pursuant to section 70(2)(a) of the PGER Act, the Minister (or his delegate) made an entry on the Register specifying 'the name of the holder of that title'.
54.4When the Minister made the entry of the 'name of the holder of that title' in the Register, Backreef had no right to be the 'holder of that title' by reason of the provisions of the Sale Agreement.
54.5The entry in the Register in the circumstances described in the previous sub-paragraph means that the Register is 'wrongly existing'.
Backreef cannot satisfy the Permit Conditions
55Further or alternatively, Backreef is 'wrongly existing' on the Register because Backreef is not capable of fulfilling any of the Permit Conditions by reason of it having assigned all of its right, title and interest in respect of the Permit to Buru. Backreef thereby abrogated both its ability to execute the Permit Request and its undertaking to fulfil the Permit Conditions.
56Neither Backreef nor Buru is able to complete any work in relation to the Permit and the Permit Conditions in accordance with the rights conferred on a permittee by section 38(1) of the PGER Act because:
56.1Despite being a permittee, Backreef does not have legal capacity to complete any work in relation to the Permit because it has assigned its right, title and interest in the Permit to Buru by the Sale Agreement.
56.2Buru is not a permittee and is not authorised to explore or carry on such operations in the permit area in accordance with section 38(1) of the PGER Act.
57In fact that is what has occurred. By way of example see the letter from Buru dated 17 April 201455 in connection with Buru's 'involvement'.
If Oil Basins cannot make out its contention in 2.1 above, its application must fail.
The Sale Agreement is to be interpreted in the context of the PGER Act since it relates to a transaction of rights, or possible rights, under the PGER Act.
The primary object of the PGER Act is carried out by making available specific blocks subject to reasonably stringent conditions.
Transfers and dealings under the PGER Act are subject to Ministerial discretion. Ministerial control under the PGER Act is more extensive than Ministerial control under the Mining Act.
The Sale Agreement is a commercial transaction and is to be interpreted so as to give effect to the commercial purpose of the agreement.
The purpose of the Sale Agreement is to transfer the petroleum exploration permit, once granted, to Buru. The Sale Agreement is:
a)conditional; and
b)executory.
The Sale Agreement is for the sale of Backreef's rights, titles and interest in the application for Petroleum Exploration Permit 05/07-8 (the Application Interest) (clause 4).
Clause 6 of the Sale Agreement requires Backreef to arrange for approvals under s 72 and s 75 of the PGER Act.
Since s 72 and s 75 of the PGER Act both require Ministerial approval for a transfer of the title, the Sale Agreement is to be read as conditional on such approval.
The purchase price is only payable upon the Permit Transfer (that is, the approval and registration of a transfer of the permit that results from the transaction pursuant to s 72 of the PGER Act) (clause 6).
Since the purchase price had not been paid when the title was issued, the Sale Agreement was executory.
It is implicit in the Sale Agreement that if the Minister did not consent to the transfer of the title to the petroleum exploration permit, Backreef would retain title for the following reasons:
1)the purchase price was payable on a transfer of the interest in the title; and
2)there is nothing in the terms of the Sale Agreement to conclude that Backreef intended to divest itself of its Sale Agreement interest in the application, irrespective of whether the Minister approved the transfer of the title once granted to Buru.
Oil Basins asserts that Backreef has absolutely assigned its title to Buru. The terms of the Sale Agreement do not support that assertion.
Accordingly, in relation to Oil Basins' contention that there was an absolute assignment of Backreef's interest in the application, that contention is not made out. Backreef retained an interest in the application and there is no error 'wrongly existing' in the Register.
Until the permit is granted, Backreef does not have any obligation under the PGER Act.
Although Oil Basins submits that Backreef abrogated its ability to execute the Permit request, no reasoning is advanced by Oil Basins to support that contention. Similarly, no reasoning is advanced as to why Backreef could not fulfil the Permit Condition.
The purpose of the PGER Act is to ensure that the issue and the transfer of a permit is subject to Ministerial approval. There is nothing in the Sale Agreement that is inconsistent with that purpose.
Was Backreef's intent in the application capable of assignment?
Even if, as a matter of construction, the Sale Agreement is to be construed as an absolute assignment, the question arises as to whether an interest in a petroleum exploration permit is capable of assignment.
As Oil Basins noted in its submissions, Abbotts affirmed the reasoning of Malcolm CJ in Watson v National Companies and Securities Commission [1988] WAR 3321. Murphy JA at [209] in Abbotts stated:
[A]n 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 expectancy ... and it may be accepted, that the same observations apply to an exploration licence. (See also [210] [211])
The similarities in the Mining Act and the PGER Act between an exploration licence and a petroleum exploration permit lead to the conclusion that the principle stated by Murphy JA in relation to an exploration licence applies equally to a petroleum exploration permit.
Abbotts held that, at the relevant date, the Option Deed did not confer any proprietary rights affecting the tenement in question. However, the Court held that the Option Deed did confer enforceable personal rights in contract. As a result of that holding in Abbotts, Oil Basins submits that:
Having regard to the facts and matters in this application, even if Backreef did not effectively assign the Application Interest to Buru at law, by reason of the personal contractual rights conferred by Backreef on Buru through the Sale Agreement, Backreef was fully controlled and constrained, and subject to direction, in respect of the Application Interest which it agreed to hold on trust. As a result, Backreef was not 'the applicant' for the Permit from the moment the Sale Agreement was executed.
In contrast Backreef submits that:
3.… until such time as:
(a)the Sale Agreement between the [Backreef] and Buru is approved by the Minister as a dealing pursuant to s 75 of the PGER Act; and
(b)transfer of the [Backreef's] Permit interest is registered pursuant to s 72 of the PGER Act,
Buru has no legal interest in the application or the Permit under the PGER Act and any personal contractual rights as between [Backreef] and Buru have no force or effect as against the Minister.
4.The statutory scheme of the PGER Act has the effect that the Minister does not recognise any personal contractual rights or any bare trust arrangements (as contended for by [Oil Basins]) between the [Backreef] and Buru prior to granting approval under s 75 and the transfer under s 72, and consequently, [Backreef] remained the applicant for the Permit at all times.
The Tribunal accepts Backreef's submissions that Backreef remains the applicant for the purposes of the PGER Act. Any delay in transfer remains subject to Ministerial approval once the permit comes into existence. The Sale Agreement is subject to Ministerial approval. It follows that the Entry in the Register was not wrongly existing and Oil Basins' application should be dismissed.
Whatever personal contractual constraints existed, they did not derogate from the fact that Backreef was the applicant for the purposes of the application. Personal contractual rights cannot abrogate Backreef's statutory obligations.
The statutory scheme is not subverted by the Sale Agreement because the Minister is not bound by personal contractual rights. The Sale Agreement expressly contemplates Ministerial approval by compliance with s 72 and s 75 of the PGER Act. The Minister will be aware of the true applicant. Oil Basins' contention to the contrary is not made out.
Compliance with s 75A of the PGER Act
Oil Basins submits that:
60At no time prior to the grant of the Permit did Backreef inform the Minister that it had assigned its interest in the Permit Application to Buru. It also did not inform the Minister that it abrogated (to Buru) compliance with minimum work obligations contained in the Permit Conditions.
61Neither the Minister nor his delegate had been informed by Backreef that it had assigned all of its interest in the Permit Application or prospectively all of any title in the Permit to Buru prior to the grant of the Permit.
62By letter dated 1 July 2013 addressed to the 'Manager Petroleum Register' of the Department, Buru informed the Department that 'in September last year, Buru and Backreef entered into a Sale Agreement whereby Backreef would seek to assign to Buru the whole of Backreef's 50% interest in any permit granted following approval of the application'.
63Notably, the 1 July 2013 letter:
63.1was not and did not purport to be a request for provisional approval of a dealing relating to a title that may come into existence in the future in accordance with section 75A of the PGER Act; and
63.2insofar as it informed the Department that Backreef 'would seek to assign' Backreef's interest in the Permit Application to Buru misinformed the Department of the true position. In actual fact, by the Sale Agreement, Backreef had already sold all of its rights, title and interest in the Permit Application to Buru.
Backreef's letter of 1 July 2013 does not in its terms comply with s 75A(1)(a) in that it is not a provisional application in writing for approval by the Minister of the dealing.
The terms of the Sale Agreement provide that, once the title is issued to Backreef, Buru will arrange for requesting the approval and registration of:
a)this agreement as a dealing pursuant to s 75 of the PGER Act; and
b)a transfer of the Permit pursuant to s 72 of the PGER Act (Clause 6).
Once a permit is granted, the Sale Agreement would fall within s 75(1)(a) and (b) of the PGER Act.
Since, at the date of the Sale Agreement, the petroleum exploration permit had not yet come into existence and the Sale Agreement is a dealing which would, if the petroleum exploration permit title comes into existence, be a dealing to which s 75 and s 75A of the PGER Act applies.
Accordingly, s 75(6) of the PGER Act comes into effect. Although s 75(6) of the PGER Act comes into effect, a failure to comply with s 75(6) of the PGER Act is not an absolute bar to the Minister granting approval. A provisional application may be lodged with such longer period as the Minister allows.
The nature of public registers
Public registers of rights and transactions are a common feature in Australia.
Public registers serve an important function in conveying the information the subject of the register to the public.
The Acts under which public registers are established reflect a general intention that the register be correct and reliable (Lindgren J in H Lundbeck A/S v Commissioner of Patents 67 IPR 654 (H Lundbeck) at [403]).
Typically, an entry in a public register is a priority or power which displaces the rules of common law. The integrity of the register is therefore of the 'utmost importance to society' (McPherson J in General Credits (Finance) Pty Ltd v Registrar of Ships 44 ALR 571 at 574 575).
Examples of Registers
The Transfer of Land Act
An example of a public register is the register kept under s 48 of the Transfer of Land Act 1983 (WA) (the TL Act).
Section 58 of the TL Act provides:
No instrument until registered in manner herein provided shall be effectual to pass any estate or interest in any land under the operation of this Act or to render such land liable to any mortgage or charge or to make any dealing in respect of Crown land effective, as the case requires; but upon such registration the estate or interest comprised in the instrument shall pass or as the case may be the land shall become liable in manner and subject to the covenants and conditions set forth and specified in the instrument or by this Act declared to be implied in instruments of a like nature, or the dealing in respect of Crown land is made effective, as the case required.
Although under the TL Act instruments are not effective until registered, the register reflects the transfer of private rights.
The SR Act
Another example is provided in the register kept under s 56 of the Shipping Registration Act 1981 (Cth) (the SR Act).
In Tisand (Pty) Ltd and Others v The Owners of the Ship MV 'Cape Moreton' ('Ex Freya') [2005] FCAFC 68; (2005) 219 ALR 48, Ryan and Allsop JJ in the Federal Court stated, at [152] [153]:
… [I]t is clear that the SR Act, in its own terms, and framed as it clearly was (see McPherson J in General Credits (Finance) Pty Ltd v Registrar of Ships(1982) 61 FLR 329, at 334) by reference to the MSA 1894, does not provide title by registration. The register is evidence of title only: s 77. Ownership precedes, and, indeed, is a requirement for, registration. See also The 'Spirit of the Ocean' (1865) 34 LJ Adm 74 at 76 as to the Imperial legislation preceding the consolidating MSA 1894.
Nevertheless, various provisions dealing with statutory methods of transfer (ss 36 and 42), transmission (ss 37 and 43), priorities (s 39), power of disposition (ss 41 and 45), the recognition, but not entry, of trusts and equities (ss 46 and 47) and rectification and correction of the register (ss 59 and 60) in a number of respects displace or modify the legal rules that would otherwise regulate parties' rights: General Credits (Finance) Pty Ltd v Registrar of Ships at 334 and the cases there cited.
The Mining Act
The Register kept under the Mining Act reflects two aspects of registration. Some tenements (for example, prospecting licences) may be freely traded, whereas others (for example, exploration licences) are subject to some constraints.
In Abbotts, Buss JA (Newnes JA concurring) noted the observations made by Mr MW Hunt's inquiry into aspects of the Mining Act at [92] [95]:
92Section 64 of the Mining Act, as original 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.
93On 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.
94In 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 …
…
Ministerial control is a primary object of the PGER Act.
The Patents Act
In their submissions, both parties relied on the Patents Act 1990 (Cth) (the Patents Act).
Section 13 of the Patents Act provides:
(1)Subject to this Act, a patent gives the patentee the exclusive rights, during the term of the patent, to exploit the invention and to authorise another person to exploit the invention.
(2)The exclusive rights are personal property and are capable of assignment and of devolution by law.
…
Section 61 of the Patents Act provides:
(1)Subject to section 100A and paragraph 210A(2)(a), the Commissioner must grant a standard patent, by registering prescribed particulars of the patent in the Register, if:
(a)there is no opposition to the grant; or
(b)in spite of opposition, the Commissioner’s decision, or the decision on appeal, is that a standard patent should be granted.
(2)A standard patent must be granted within the prescribed period.
(3)The Commissioner must notify the patentee that the standard patent has been granted.
The grant of a patent is made subject to compliance with the Patents Act. Once compliance is established, the grant of a patent is not discretionary.
Section 186(1) of the Patents Act provides:
A Register of Patents is to be kept at the Patent Office. …
Section 190(1) of the Patents Act provides:
The Register must be available for inspection at the Patent Office by any person during the hours that it is open for business.
Section 189 of the Patents Act provides:
(1)A patentee may, subject only to any rights appearing in the Register to be vested in another person, deal with the patent as the absolute owner of it and give good discharges for any consideration for any such dealing.
(2)This section does not protect a person who deals with a patentee otherwise than as a purchaser in good faith for value and without notice of any fraud on the part of the patentee.
…
The Register of Patents does not give indefeasible title and is only prima facie evidence of any particulars registered in it (s 195(1) Patents Act) (Lindgren J in H Lundbeck at 665).
In Arbitron v Telecontrol Aktiengesellschaft [2010] FCA 302, Emmett J said at [170] [176]:
The Register of Patents is a record of the rights conferred under the Act. The presence of an entry in the Register does not of itself confer any rights. In that regard, the Register might be contrasted with the Register maintained under the Real Property Act 1900 (NSW) (the Real Property Act). Under the Real Property Act, title depends upon registration. Without registration, there is no title. In that regard, the title of a registered proprietor of an interest in land under the Real Property Act is to be contrasted with the title of the owner of land that is subject to common law or old system title in New South Wales. Under the Registration of Deeds Act 1897 (NSW) (the Registration of Deeds Act) title might be determined by the order of registration of deeds. However, title to land under the common law depends upon the juridical consequences of successive conveyances of the fee simply by deed, tracing title back, at least in theory, to a grant from the Crown.
The Register of Patents is more analogous to the register maintained under the Registration of Deeds Act than the register maintained under the Real Property Act. That is to say, ownership of a patent is not determined by reference to what is recorded in the Register of Patents. Rather, the Register of Patents is intended to record particulars of patents in force that have been the subject of a grant.
Under s 186, the Register is to contain, relevantly, a part dealing with standard patents. The Register may be kept wholly or partly by use of a computer. Under s 187(1), particulars of standard patents in force, and other prescribed particulars relating to standard patents, if any, must be registered in that part of the Register dealing with standard patents. Section 188 provides that notice of any kind of trust relating to a patent or licence is not receivable by the Commissioner and must not be registered.
Sections 195 and 196 makes clear that the analogy of the Registration of Deeds Act is more apt than that of the Real Property Act. Thus, s 195(1) provides that the Register is prima facie evidence of any particulars registered in it. Further, under s 196, a document in respect of which particulars have not been entered in the Register is not admissible in any proceedings in proof of the title to a patent or to an interest in a patent unless the Court or a Tribunal before which the proceedings are brought otherwise directs or the proceedings are for an order under s 192 or to enforce equities in relation to a patent or licence. It is clear, therefore, that the Register is not determinative of title or ownership of a patent.
Section 189 provides that a patentee may, subject only to any rights appearing in the Register to be vested in another person, deal with the patent as the absolute owner of it. Section 189 does not protect a person who deals with a patentee otherwise than as a purchaser in good faith for value and without notice of any fraud on the part of the patentee and equities in relation to a patent may be enforced against the patentee, except to the prejudice of a purchaser in good faith for value.
Section 14 of the Act makes clear that a patent is assignable. Under s 14(1), an assignment of a patent must be in writing, signed by or on behalf of the assignor and assignee. An instrument of assignment will be registered. Further, the validity of the assignment and its juridical effect is in no way dependent upon registration. The Register of Patents is merely a public record of rights and their history. Thus, entries in the Register are never removed. Rather, they are only ever altered in a way that shows what changes have occurred. Even when the patent is revoked by order of a court, the entry in the Register is not removed. Rather, the entry is marked and endorsed with the terms of the order.
As a consequence of sealing a patent pursuant to s 61, the Commissioner records the details of the patent in the Register. It is the sealing of the patent that creates the rights of the patentee, not the entry of the consequences of sealing in the Register. The Commissioner's obligations are to register particulars of standard patents in force in that part of the Register dealing with standard patents. Even if a patent is sealed in contravention of s 64(2), it is nonetheless sealed and the Commissioner is therefore obliged to register particulars of it in the Register.
In Kimberly-Clark Australia Pty Ltd v Multigate Medical Products Pty Ltd [2010] FCA 1318 (Kimberly-Clark), Stone J said at [113]:
Understandably, Multigate does not ask for revocation however the conclusions stated above about the legal consequence of non-compliance is relevant to the consideration of whether the relief Multigate seeks should be granted. The Commissioner points to an important difference between ss 138 and 192, namely that the 'former is directed at rights, the latter at the recording of those rights'. I am persuaded by the Commissioner's submissions as to what follows from this distinction:
The Register is a public record of rights conferred under the Act and the history of those rights. The presence of entries in the Register does not itself confer rights. Entries in the Register are never removed. They are only ever altered transparently to show what changes have occurred. Even when a patent is revoked by court order, the entry in the Register is not removed, but clearly marked and indorsed with the terms of the order. Similarly, there is no removal of the specification. In fact the Register does not contain specifications of patents. The Commissioner keeps records of all specifications filed, and retains such specifications even when the patent has been revoked.
The Commissioner submits that s 192(1) cannot be used, in effect, to revoke a patent in circumstances where there would be no grounds for revocation under s 138(3) of the Act. An order made pursuant to s 192(1) cannot be used to affect substantive rights under the Act. Section 192(1) was intended merely to allow for the correction of clerical errors, or other mistakes of that type in the Register - it was not intended to operate as a mechanism to challenge the validity of patents generally. This is quite clear from the text of the subsection. The alternative construction would undermine the proper working of the Act. …
An order under s 192(1) in the terms sought by the respondent … would therefore not in itself change the fact that a valid, sealed, patent is in force. All it would do would be to create an incongruity between the Register and reality, whereas the entire point of s 192(1) is to remove such incongruities.
The rights reflected in a public register
Public registers may reflect:
a)rights based in common law, for example, dealings in land (TLA), dealings in ships (SR Act); or
b)rights created by statute, for example, patents (Patents Act), prospecting licences (Mining Act), exploration licences (Mining Act), and petroleum exploration permits (PGER Act).
Public registers may also reflect:
a)rights which may be freely dealt with by the holder, for example, dealings in land (TLA), dealings in ships (SR Act) dealings in patents (Patents Act), prospecting licences (Mining Act); or
b)rights which may not be freely dealt with by the holder because statutory third party consent is required, for example, exploration licences (Mining Act) and petroleum exploration permits (PGER Act). Typically those rights which require statutory consent are rights created by statute.
Public registers may also reflect that:
a)a failure to obtain consent to a transaction only constitutes a breach without any further consequence, for example, s 82(1)(d) Mining Act, Abbotts at [105]; or
b)a failure to obtain consent to a transaction has the consequence that the transaction is ineffective (s 72 PGER Act).
Public registers may also reflect:
a)a defeasible title (SR Act); or
b)an indefeasible title (TLA).
Public registers reflect a continuum between those reflecting purely private transactions and those reflecting a high degree of control typically by requiring consent by the Minister, or the Minister's delegate.
The nature of the public register kept under an Act inevitably impacts on the nature of the power of amendment conferred under an Act.
For example, in General Credits (Finance) Pty Ltd v Registrar of Ships and Another (1982) 44 ALR 571 (General Credits), McPherson J stated (at 575):
The conclusion that follows is that, in establishing an Australian Register of Ships and a process of registration therein, the legislative intention was to impute to them a purpose, function, and effect similar to those of the Imperial legislation. The register and registration are likewise intended in particular respects to displace rules of the general law by which questions of legal and equitable ownership of ships and interest therein are to be determined. It is in this context that the statutory power of rectification under s 59 of the Act is to be viewed. It is inherently improbable that the power to rectify the register was or is intended to be exercised in derogation of what McLachlan describes as the 'integrity of the register' The occasions for invoking that power which are specified in s 59(1) themselves suggest that this is so. Priorities and other rights attained under the Act are not to be overridden lightly, if at all, in the exercise of the power which the section confers; otherwise, much of the utility of a public register of the kind in question would be removed.
The approach adopted to amend a register which reflects purely private transactions will be different to those that reflect Ministerial control of transactions. The approach to amending a register which reflects purely personal rights will be different to a register which reflects the exercise of a Minister's discretion.
The nature of the rights conferred by registration under the PGER Act
Oil Basins submits:
49There is a distinction to be drawn between the Register of Patents and the Register maintained by the Minister under the PGER Act based on the rights conferred by the entries made on the respective registers. The Commissioner of Patents submitted that the Patents Register 'is a public record of rights conferred under the Act and the history of those rights. The presence of entries in the Register does not itself confer rights'. It was noted by Stone J that section 192 is only concerned with 'recording rights'.
50In contrast to the Register of Patents, the fact of registration under the PGER Act confers title. The Act sets out a detailed regime which, among other things, prescribes the rights and obligations of the title (permit) holder as 'permittee'. Section 38(1) of the PGER Act provides:
38 Rights conferred by permit
(1)A petroleum exploration permit, while it remains in force, authorises the permittee, subject to this Act and in accordance with the conditions to which the permit is subject, to explore for petroleum, and to carry on such operations and execute such works as are necessary for that purpose, in the permit area.
51As a result of the clearly defined difference in the rights conferred by an entry in the Register under the PGER Act and the rights conferred by an entry in the Register of Patents described in Kimblerly-Clark, Justice Stone's adoption of the Commissioner's submissions in Kimberly-Clark should be distinguished and not applied in respect to the Register kept by the Minister under the PGER Act.
Backreef submits:
17.As regards the distinction between the rights arising from the grant of a permit and the rights, if any, associated with the registration of a title on the Register, [Backreef] says:
(a)By s 39(1)(a) of the PGER Act, a permit commences on the day on which the permit is granted. The Permit was granted on 14 March 2014.
(b)By s 70 of the PGER Act, the Minister is required to keep a Register of titles granted by him. The register is therefore a record of titles previously granted by the Minister.
(c)The entering of a memorial in the Register by s 70(2) of the PGER Act of the names of the permit holders to whom a new title has been granted occurs after the grant of the title by the Minister and is not a requirement for the commencement of a permit.
(d)The Register is therefore a record of rights conferred by the PGER Act and intended to record particulars of titles in force that have been the subject of a grant.
(e)The presence of an entry in the Register in relation to a newly granted title does not of itself confer any rights; the rights are conferred by the grant itself.
(f)This might be contrasted with the transfer of existing titles under s 72(10) of the PGER Act, where a transfer is only deemed to be registered upon the entry in the Register of the memorandum of transfer of a title. Without registration, there is no vesting of title in the transferee.
18.It is within this context that s 82(1)(c) must be interpreted. An 'entry wrongly existing' is therefore an entry on the Register which is contrary to the rights conferred by the grant of the title.
19.In this case, the entry on the Register showing [Backreef] as the joint holder of the Permit is in accordance with the grant of the Permit and therefore not an entry wrongly existing within the context of s 82(1)(c) of the PGER Act.
20.This position is further supported by the following:
(a)By s 70(1) and s 70(2) the Minister is bound to enter in the Register a memorial in respect of each title granted by him. Since the Minister granted the Permit to the [Oil Basins] and [Backreef] jointly, the Minister was bound to enter [Oil Basins] and [Backreef] on the Register as joint holders and as a consequence the entry on the Register is not 'an entry wrongly existing.
(b)Emmett J in Arbitron v Telecontrol Aktiengesellschaft [2010] FCA 302 at [166] to [177], albeit in a patents context, considered whether an entry of a patent in the register of patents under s 192 of the Patents Act 1990 (Cth), was an entry wrongly made. In this regard:
(i)Section 192(1) of the Patents Act is almost identical to s 82(1)(c) of the PGER …
(ii)Emmett J concluded at [177] that:
Since the Patent was sealed pursuant to s 61, albeit in contravention of s 64(2), the Commissioner was required to register particulars of the Patent in the Register. The entry of particulars of the Patent in the Register was not made without sufficient cause. It was made because the Commissioner was bound to make it. Similarly, since the Patent was granted by being sealed, in accordance with s 61, the entry of particulars of the Patent in the Register does not wrongly exist.
(iii)The conclusion reached by Emmett J, given the analogy between s 192(1) of the Patents Act and s 82(1)(c) of the PGER Act, supports [Backreef's] positon that the entry on the Register showing the [Backreef] as the joint holder of the Permit is not 'an entry wrongly existing' within the context of s 82(1)(c) of the PGER Act, but rather a correct entry reflecting the grant of the Permit.
The Tribunal accepts Backreef's contentions.
The Minister grants the right, albeit that it is not effective until registration. The Entry reflects the grant of the permit by the Minister.
The grant of a permit by the Minister is analogous to the grant of a patent upon it being sealed.
However, an important difference between the PGER Act and the Patents Act is that transfers and dealings under the PGER Act are subject to Ministerial approval, unlike patents which may be traded freely.
Section 77 of the PGER Act
Section 77 of the PGER Act permits the Tribunal to examine an underlying transaction. However, having done so in this case, the underlying timeline does not lead to an entry 'wrongly existing'.
The basis for an amendment
Comparative Legislation
Both s 81A(1) and s 82(1) of the PGER Act allow amendment and use a similar form of words to those that appear in other Acts. However, caution needs to be exercised in applying authorities relating to amendment provisions in other Acts to the PGER Act. Whether those authorities are of assistance depends on the nature of the Register.
A clerical error or an obvious defect
Section 81A(1) of the PGER Act provides that the Minister may alter the Register for the purposes of correcting a clerical error or an obvious defect in the Register.
Similar phrases appear in other Acts (for example, Patents Act s 117 (U.K.) and s 60 of the SR Act). However, those Acts use the word 'mistake' rather than 'defect'.
Section 60 of the SR Act provides:
The Registrar may correct, or cause to be corrected, any clerical error or obvious mistake in the General Register or International Register.
Although s 81A(1) of the PGER Act refers to a 'defect', the authorities referring to the correction of a 'mistake' are relevant and useful. For the purposes of these reasons, it is unnecessary to determine the significance, if any, of the use of the word 'defect' rather than 'mistake'.
'A clerical error'
Section 117 of the Patents Act 1903 1950 provided:
The Commissioner may on request in writing accompanied by the prescribed fee correct any clerical error in the Register of Patents … .
In R v Commissioner of Patents; Ex parte Martin 89 CLR 381 at 406, Fullagar J, (Kitto and Taylor JJ agreeing) held:
[Clerical error] is no doubt, one of a somewhat elastic character, … In the New Oxford Dictionary one meaning attributed to the word 'clerical' is 'Of or pertaining to a clerk or penman: esp. in "clerical error", an error made in writing anything out'. According to Webster, on meaning of the word 'clerical' is 'Of or relating to a clerk or copyist', and an example given is 'clerical error, an error made in copying or writing'. Probably no one would deny that a clerical error may produce a significant and even profound, effect as for example, in a case in which a writer or typist inadvertently omits the small word 'not'. … The mistake, however innocently made, consists in a simple mis-statement of fact, and that is the whole of the matter. (See also Austming Trade Pty Ltd v MindsInSync Inc 104 IPR 148 (Austming) at [15]; Johnson & Johnson v Self Care Corporation Pty Ltd 109 IPR 260 (Johnson) at [19]).
'Obvious defect'
Section 31(1) of the Patents Act 1949 (U.K) provided:
After the acceptance of a complete specification, no amendment thereof shall be effected except by way of disclaimer, correction or explanation, and no amendment thereof shall be allowed, except for the purpose of correcting an obvious mistake …
In General Tire & Rubber Company (Frost's) Patent (1972) FSR 83, the Court stated:
Looking first at the matter as one of construction, it is to be noted that the words used in the statute are 'except for the purpose of correcting an obvious mistake' and not 'for the purpose of correction when a mistake has obviously been made'.
It is the mistake which must be obvious and not the fact that it has been made. This implies, to my mind, that both the fact of mistake and the correction necessary must be clear to the reader's mind, and it is not enough if he merely appreciates the presence of a mistake. If, in a mathematical context, it is said '2 and 2 make 5', the reader would immediately say: '5 is an obvious mistake for 4'. If, however, there is more than one possible correct answer to the question, particularly where the answers may depend on intention or judgment, the reader would say: 'Obviously a mistake has been made but I cannot tell you what is the right answer'. The wording of the section itself therefore, to my mind, shows an intention in favour of the first construction rather than the second.
(See also Austming at [15] and Johnson at [30])
In General Credits at 574, McPherson J stated:
… There is an additional power granted by s 60 and vested in the Registrar to correct a clerical or obvious mistake in the register. But it is plainly not within the scope of the authority conferred by this section to alter by expunging the registration which has here taken place.
'Wrongly existing'
PGER Act
Section 82(1) of the PGER Act provides:
(1)A person aggrieved by -
(a)the omission of an entry from the Register; or
(b)an entry made in the Register without sufficient cause; or
(c)an entry wrongly existing in the Register; or
(d)an error or defect in an entry in the Register,
may apply to the State Administrative Tribunal in its original jurisdiction for such order as the Tribunal thinks fit directing the rectification of the Register.
SR Act
Section 59 of the SR Act relevantly provides:
(1)If:
(a)an entry is omitted from the General Register or International Register;
(b)an entry is made in the General Register or International Register without sufficient cause;
(c)an entry wrongly exists in the General Register or International Register; or
(d)there is an error or defect in an entry in the General Register or International Register;
whether or not by reason of a decision of an officer (including a decision that the officer was empowered by this Act to make) a person aggrieved or the Registrar may apply to the Supreme Court of a State or Territory for rectification of that register, and the Court may make such order as it thinks fit directing the rectification of that register.
…
(3)A Court may, in proceedings under this section, decide any question that it is necessary or expedient to decide in connection with the rectification of the General Register or International Register.
Patents Act
Section 191A of the Patents Act provides:
(1)The Commissioner may rectify the Register if the Commissioner is satisfied, on the balance of probabilities, whether on application or otherwise, of any of the following:
(a)the omission of an entry from the Register;
(b)an entry made in the Register without sufficient cause;
(c)an entry wrongly existing in the Register;
(d)an error or defect in an entry in the Register.
(2)The Commissioner must, on application, make a declaration as to a person’s entitlement to a patent, or a share in a patent, if the Commissioner is satisfied, on the balance of probabilities, that the Register does not properly record a person’s entitlement to a patent, or a share in a patent:
(a)because the patent, or a share in the patent, was granted to a person who was not entitled to it; or
(b)because the patent, or a share in the patent, was not granted to a person who was entitled to it; or
(c)for any other reason.
(3)If the Commissioner makes a declaration under subsection (2), the Commissioner must rectify the Register accordingly.
Section 192 of the Patents Act provides:
(1)A person aggrieved by:
(a)the omission of an entry from the Register; or
(b)an entry made in the Register without sufficient cause; or
(c)an entry wrongly existing in the Register; or
(d)an error or defect in an entry in the Register;
may apply to a prescribed court for an order to rectify the Register.
…
The width of the power of amendment s 82 of the PGER Act
The power of amendment conferred by s 82 extends beyond clerical error or obvious defect. The error alleged by Oil Basins would be beyond the scope of an amendment based on a clerical error or obvious defect.
Examples of an error wrongly existing under other Acts
SR Act
A common exercise of the power to rectify the Register under the SR Act is where a change in ownership has not been reflected in the Register.
In Adstream Harbour Pty Limited v The Register of the Australian Register of Ships [2005] FCA 1324, Allsop J stated at [13]:
I was satisfied on all the evidence that ownership of all the shares in the tugs was from July 2005 with the applicant. An oversight occurred in not registering the sales from Farwood. I was satisfied that Howard Smith interests had all been paid and that no creditor was affected. The Register as at late June 2005 was an incorrect reflection of ownership of the tugs. The Register is, of course, a record of ownership; entry on the Register does not give title or ownership: see s 77 of the Act …
(See also Chevron Australia Pty Ltd v The Registrar of the Australian Register of Ships [2011] FCA 265)
The power of rectification conferred by s 59 of the SR Act may be exercised where the Register is not a correct reflection of ownership. In those circumstances, the power of rectification is exercised upon a consideration of the underlying private rights relating to the transaction. These private rights are not subject to Ministerial approval.
Patents Act
In Neobev Pty Ltd v Bacchus Distillery Pty Ltd (Administrators Appointed) No 4 [2014] FCA 21 (Neobev), Justice Besanko made an order directing that the Patents Register be rectified so as to remove a person named as a coinventor.
In Parke Davis Pty Ltd v Sanofi & Commissioner of Patents (1982) AIPC 90-010, Fullagar J had made an order extending the term of the letters patent 272333.
An entry giving effect for that order was made in the Register of Patents. The Full Federal Court (Bowen CJ and Ellicott J) allowed an appeal against Fullagar's decision and made an order rectifying the Register on the basis that 'such an order is consequential upon our decision that Fullagar J lacked jurisdiction and that his order should be set aside.
Neobev needs to be seen in context. Specifically:
a)The Patents Register is only concerned with recording rights (Kimberly-Clark at [113]); and
b)The private rights arising from once a Patent has been granted the transactions recorded in the Patents Register reflect private rights, not transactions which are not subject to Ministerial consent.
The power of rectification that may be exercised under s 191A and s 192 of the Patents Act may be exercised when there is an error in the Register arising from a failure to comply with the Patents Act.
The initial granting of a patent arises in consequence of an applicant satisfying the Commissioner or a court that the requirements of the Patents Act have been met.
When is an entry 'wrongly existing'?
Very few cases have considered when an entry is 'wrongly existing' in a register. Two categories emerge:
a)when there is a failure to comply with the provision of an Act that gives rise to a statutory right, for example, the Patents Act; or
b)where a register which reflects underlying private rights does not correctly reflect the state of those underlying private rights.
Obviously, those two categories are not exhaustive.
The initial grant of a petroleum exploration permit is a matter within the Minister's discretion. An applicant under the PGER Act only obtains the statutory rights constituted by a petroleum exploration permit when the Minster exercises his or her discretion in the applicant's favour. An application under the PGER Act does not give rise to a statutory right analogous to an application for a patent. A patent must be granted (sealed) under the requirements of the Patents Act and arises only when the requirements of the Patents Act are met. Accordingly, if the requirements of the Patents Act are not met, no right to a patent arises and the grant of a patent is subject to late challenge.
One can imagine circumstances where private underlying rights might be relevant to a transfer of a petroleum exploration permit or a dealing in a petroleum exploration permit so that s 82(1) of the PGER Act comes into play. However, it is difficult to see how they could apply in relation to the initial grant of a permit. In any event, it is unnecessary to speculate on what those circumstances might be since no case is made out in the circumstances of this application.
Having regard to the purpose of the PGER Act, namely, to reflect Ministerial approval for the grant of a petroleum exploration permit, the error contended for by Oil Basins would not lead to an error 'wrongly existing' in the Register.
A person aggrieved
Backreef submitted that Oil Basins was not a person aggrieved. This point does not arise since the Tribunal has dismissed Oil Basins' contention that an entry wrongly existed in the Register. However, if Oil Basins' contentions were accepted, then an entry 'wrongly existing' in the Register would impact on its interests and Oil Basins would have been a person aggrieved.
The consequences of an entry 'wrongly existing' in the Register
Although submissions were made concerning the effect of an entry 'wrongly existing' in the Register, since the Tribunal has found that there was not an entry 'wrongly existing' in the Register, the Tribunal has not dealt with that issue.
Conclusion
Oil Basin's application is dismissed.
Order
1.Oil Basins Limited's application is dismissed.
I certify that this and the preceding [197] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT
0
17
7