Tisala Pty Ltd v Hawthorn Resources Ltd - [2022] WASC 109

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   TISALA PTY LTD -v- HAWTHORN RESOURCES LTD [2022] WASC 109
CORAM:   HILL J
HEARD:   25 FEBRUARY 2020
DELIVERED          :   31 MARCH 2022
FILE NO/S:   GDA 10 of 2018
BETWEEN:   TISALA PTY LTD
Appellant
AND
HAWTHORN RESOURCES LTD
First Respondent
GEL RESOURCES PTY LTD
Second Respondent

ON APPEAL FROM:
For File No:   GDA 10 of 2018
Jurisdiction              :   WARDENS COURT OF WESTERN AUSTRALIA
Coram:   WARDEN O'SULLIVAN
File Number            :   M31/78, M31/79, M31/113, M31/284, G31/4, L31/32, L31/65

Catchwords:

Energy and resources – Appeal from Mining Warden's decision to grant partial summary judgment – Proper construction of s 20(5) of Mining Act 1978 (WA) – Meaning of 'occupier' – Whether appellant had lawful title derived from the owner of Crown Reserve 10041 – Appeal dismissed

Legislation:

Constitution Act 1890 (UK)
Land Act 1898 (WA)
Land Act 1933 (WA)
Land Administration Act 1997 (WA)
Mining Act 1904 (WA), s 28
Mining Act 1978 (WA), s 20(5)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	C A McKenzie
First Respondent	:	A J Papamatheos
Second Respondent	:	A J Papamatheos

Solicitors:

Appellant	:	McKenzie & McKenzie
First Respondent	:	Ensign Legal
Second Respondent	:	Ensign Legal

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

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Astor Theatre WA Pty Ltd v Zimmermann Investments Pty Ltd [2014] WASC 329
Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
BGC Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2019] WASC 248
Browne v Browne [2019] WASCA 1
Bundock Bros. v Bergyl and Co (1897) 8 QLJ 106
Commonwealth Dairy Produce Equalisation Committee Ltd v Hansen [1944] QSR 95
Commonwealth v Western Australia [1999] HCA 5; (1999) 196 CLR 392
Daruk Local Aboriginal Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140
Defendi v Szigligeti [2019] WASCA 115
Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Dial a Dump Industries Pty Ltd v Roads and Maritime Services [2017] NSWCA 73; (2017) 94 NSWLR 554
Dicom AWT Operations Pty Ltd v City of Stirling [2019] WASCA 117
Director General of Department of Transport v McKenzie [2016] WASCA 147; (2006) 77 MVR 306
Duperouzel v Cameron [1973] WAR 181
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27
Forrest & Forrest Pty Ltd v Honourable Marmion, Minister for Mines and Petroleum [2018] WASCA 32; (2018) 53 WAR 156
Hawthorn Resources Ltd v Tisala Pty Ltd [2018] WAWC 1
HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 261 ALR 220
James v State of Western Australia [2010] FCAFC 77; (2010) FCR 582
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Lamont v Commissioner of Railways [1964] NSWR 406; (1963) 80 WN (NSW) 1242
Mabo v Queensland [No 2] (1992) 175 CLR 1
Margaret River Resources Pty Ltd v His Honour Warden Calder SM [2008] WASCA 238
Melrose Farm Pty Ltd t/as Milesaway Tours v Milward [2008] WASCA 175; (2008) 175 IR 455
Meyer v Solomon [2021] WASCA 168
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 82 ALJR 1505
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Nova Resources NL v French (1995) 12 WAR 50
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
Perry v Clissold (1906) 4 CLR 374
Pourzand v Telstra Corporations Ltd [2014] WASCA 14
Qantas Airways Ltd v Chief Commissioner of State Revenue [2008] NSWSC 1049
Re Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175
Riordan v Australian Sports Drug Agency [2002] FCA 858; (2002) 120 FCR 424
Shilkin v Taylor [2011] WASCA 255
Smith v McCusker QC [2010] WASCA 55
Southern Region Pty Ltd v The Minister for Police and Emergency Services (2003) VSCA 105
Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Theseus Exploration NL v Foyster [1972] HCA 41; (1972) 126 CLR 507
Thompson v Siberia Mining Corp Pty Ltd [2021] WASCA 115
Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson trading as Holgerssons Complete Home Service [2019] WASCA 114
Urica Library System BV v Sanderson and Computers Pty Ltd [1997] NSWSC 454
Wedge v Service Finance Corp Ltd [2002] WASCA 54
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
Woodcock v South Western Electricity Board [1975] 2 All ER 545
YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395

HILL J:

Introduction

The respondents have been granted four mining leases by the Minister for Mines and Petroleum on which they operate the Anglo Saxon Gold Mining Project (Project), in accordance with an approved mining proposal. The Project traverses the Pinjin pastoral lease (No 49526) (Pinjin lease) as well as a number of adjoining Crown reserves.
The appellant is the pastoral leaseholder of the Pinjin lease. Since the mid‑1960s, the appellant (and its predecessors in the leasehold title) has also used the Crown reserves adjoining its pastoral lease. In particular, for over 50 years, since the 1960s, the homestead and water infrastructure for the Pinjin lease have been located on Crown Reserve 10041.
In May 2017, the respondents commenced proceedings in the Warden's Court against the appellant. The respondents contend that the appellant has interfered with their mining operations on the Pinjin lease and Crown Reserve 10041.
The appellant denies the respondents' allegations. It contends that, as a result of its physical occupation of the homestead on Crown Reserve 10041, and by reason of s 20(5) of the Mining Act 1978 (WA) (Act), the respondents are prohibited from mining within 100 m of the homestead without the appellant's written consent, which has not been provided.
On 4 December 2017, the respondents filed an interlocutory application for partial summary judgment which was heard by the Warden on 22 March 2018. On 20 June 2018, the Warden delivered his reasons for decision granting the application. Relevantly, the Warden held that the homestead did not fall within the Pinjin lease and the appellant was not an occupier of Crown Reserve 10041 for the purposes of s 20(5) of the Act.[1]
[1] Hawthorn Resources Ltd v Tisala Pty Ltd [2018] WAWC 1 [220] (Primary reasons).
By notice of appeal filed 2 August 2018, the appellant appeals against this decision. The matter came on for hearing before me on 25 February 2020.
For the reasons that follow, I have concluded that the appeal should be dismissed.

Factual background

The Pinjin lease comprises approximately 127,135 hectares within the Boulder and Menzies shires and is located about 170 km north‑east of Kalgoorlie.[2]
[2] Primary reasons [28].
In 1906, Crown Reserve 10041 was created for the purpose 'common' for the use of local residents and small scale farmers.[3]
[3] Primary reasons [29].
There was no evidence before the Warden as to when the original Pinjin lease was granted. Between 1964 and 1966, the Pinjin homestead was relocated from the Pinjin lease onto Crown Reserve 10041. Since that date, the appellant and its predecessors have continuously occupied the Pinjin homestead.[4] The Crown was aware the appellant had taken up residence at the Pinjin homestead on Crown Reserve 10041, that the Pinjin lease and several of the Crown reserves were used to varying degrees by the appellant,[5] and that Crown Reserve 10041 was the focal point for the water system that operated throughout and across the Pinjin lease.[6]
[4] Primary reasons [42].
[5] Primary reasons [32].
[6] ts 11.
In June 1967, the old pastoral leases were surrendered, and a new pastoral lease issued.[7] In May 1991, the pastoral lease was transferred to the appellant.[8] On 1 July 2015, a new pastoral lease of 48 years was granted to the appellant by the State of Western Australia.[9]
[7] Primary reasons [31].
[8] Exhibit 4, 'TIM-1'.
[9] Exhibit 3, 'TIM-18' - 'TIM-22'.
Between 1968 to 2015, various improvements were undertaken by the Pinjin leaseholder, both on the pastoral lease and surrounding Crown reserves. These works were the subject of correspondence with the Department of Lands and were approved by the Minister of Lands.[10] The approved development plans included approval of a development plan in 2015 to repair and refurbish the homestead, notwithstanding the fact it was not located on the Pinjin lease but on Crown Reserve 10041.[11]
[10] Exhibit 9, 'SK-3', 'SK-4', 'SK-7'; Exhibit 7 'LCT-23', 'LCT-24'.
[11] Primary reasons [37].
Since 2005, the Shire of Menzies (Shire) has been the body charged with the care, control and management of Crown Reserve 10041. The Shire has allowed the appellant to occupy this reserve to oversee its pastoral operations.[12]
[12] Primary reasons [36].
In 2016, the respondents received approval for the construction and operation of the Project.[13] The Project is partly located on the Pinjin lease, as well as on the various Crown reserves adjoining the Pinjin lease, including Crown Reserve 10041.
[13] Exhibit 1 [8], 'WDL-11'.
Prior to 14 October 2016, the Department of Lands requested the Department of Mines and Petroleum approve a request by the appellant for Crown Reserves 10041, 11438 and 9736 to be included in the Pinjin lease.[14] The Department of Planning, Lands and Heritage has confirmed in writing that it recognises the appellant's occupation of Crown Reserve 10041 and notes that it is not uncommon for pastoral infrastructure to be located outside the boundaries of a pastoral lease. The evidence before the Warden was that the Department of Planning, Lands and Heritage supports the amalgamation of the non-pastoral lease land into the appellant's pastoral lease '[t]o ensure clarity and transparency for all parties'.[15] Notwithstanding this request, this has not occurred.[16]
[14] Primary reasons [38].
[15] Primary reasons [41].
[16] Primary reasons [40].
The appellant asserts that, by reason of its physical occupation of the Pinjin homestead which is located on Crown Reserve 10041, the respondents are prohibited from constructing or operating the Project within 100 m of the homestead without the appellant's written consent. It is not in dispute that the appellant has not provided its written consent.

Proceedings in the Warden's Court

On 9 May 2017, the respondents commenced proceedings in the Warden's Court.[17] The Plaint alleged the appellant had interfered with the respondent's mining operations on both the Pinjin lease and Crown Reserve 10041.
[17] Plaint 505998 as amended on 4 December 2017.
On 26 October 2017, the respondents filed an interlocutory application for an interim injunction restraining the appellant from interfering in any works or operations associated with the Project. On 27 October 2017, the Warden granted the injunction.
On 4 December 2017, the respondents filed an interlocutory application for partial summary judgment, together with an affidavit of their solicitor, Mr Masson, of the same date in support of the application.
On 5 December 2017, the Warden made programming orders in respect of the application for partial summary judgment. Relevantly, this required the respondents to file any further affidavit in support of the application by 6 December 2017, the appellant to file any affidavits in opposition to the application by 22 December 2017 and for the parties to file written submissions. The application was relisted for mention on 19 January 2018.
After the initial directions hearing, the then solicitors for the appellant identified a conflict of interest which prevented them from continuing to act for the appellant and, on 2 January 2018, ceased to act for the appellant. The appellant appointed new solicitors who filed a notice of acting on 11 January 2018.
Between 5 December 2017 and 18 January 2018, the respondents filed a further two affidavits in support of their application[18] and relied on two earlier affidavits.[19] The respondents also filed detailed written submissions on 6 March 2018.[20]
[18] Affidavit of Timothy Iren Masson sworn 6 December 2017; Affidavit of Timothy Iren Masson sworn 18 January 2018.
[19] Affidavit of William Donald Lloyd sworn 25 October 2017; Affidavit of William Donald Lloyd sworn 22 November 2017.
[20] Outline of submissions filed 6 March 2018.
Between 18 January 2018 and 20 March 2018, the appellant filed six affidavits in opposition to the application,[21] as well as detailed written submissions signed by senior counsel on 19 March 2018.[22]
[21] Affidavit of Kim Rosmund Samiotis sworn 18 January 2018; Affidavit of Lawrence Craig Thomas sworn 9 February 2018; Affidavit of Lawrence Craig Thomas sworn 13 February 2018; Affidavit of Steven Lionel Kean sworn 14 February 2018; Affidavit of Steven Lionel Kean sworn 20 March 2018; Affidavit of Leo Winston Thomas sworn 20 March 2018.
[22] Outline of submissions filed 19 March 2018.
The application was listed for hearing before the Warden on 22 March 2018. At this hearing, the appellant was represented by senior counsel. Senior counsel for the appellant did not request an adjournment of the hearing nor the opportunity to file further evidence. During the hearing, senior counsel for the appellant sought an opportunity to file further written submissions in reply, limited to matters which had been recently raised by the respondent. At the conclusion of the hearing, the Warden made orders for the respondent to file further written submissions by 27 March 2018 and for the plaintiff to have liberty to file responsive submissions by 29 March 2018. The Warden otherwise reserved his decision.
On 20 June 2018, the Warden delivered reasons for his decision. Formal orders to give effect to these reasons were made by the Warden on 20 July 2018.

Warden's reasons for decision

The Warden considered the respondents' application for partial summary judgment raised three questions for determination.[23] First, whether the term 'occupier' as used in s 20(5)(c) of the Act requires 'actual occupation under any lawful title granted or derived from the owner of the land'? Second, if yes, is the appellant an 'occupier' of Crown Reserve 10041? Third, does s 20(5)(e) of the Act only prohibit mining that is within 400 m of water works, race, dam, well or bore on a pastoral lease or does it extend to water infrastructure on Crown reserves?
[23] Primary reasons [12].
The first and second questions required consideration of the proper construction of s 20(5)(c) of the Act. The third question required consideration of the proper construction of s 20(5)(e) of the Act.
After tracing the legislative history of the Act, the Warden considered the meaning of the terms 'occupier' and 'actual occupation', both as to their ordinary and natural meaning and the definition of 'occupier' in the Act.
In answer to the first question, the Warden held that notwithstanding the use of the word 'includes', the term 'occupier' in s 20(5) is an exhaustive definition. As a result, s 20(5) requires actual occupation to be 'under any lawful title granted by or derived from the owner of the land'.[24] In his Honour's view, the words 'actual occupation' in s 20(5)(c) did not represent an intention to depart from this construction.[25]
[24] Primary reasons [14], [114] - [135].
[25] Primary reasons [136] - [158].
As a consequence, it followed that, in answer to the second question, the appellant's possession of Crown Reserve 10041 and its use of other Crown reserves without lawful title granted by or derived from the Crown did not render the appellant an 'occupier' of the Crown reserves for the purposes of s 20(5) of the Act. The fact that the appellant was in possession of Crown Reserve 10041 did not establish that either the Governor or the Minister for Lands had granted the appellant any form of title at any time.[26] Even if the Shire had the power to grant an interest, there was no evidence that it purported to exercise such a power nor was any interest registered as required by the Land Administration Act 1997 (WA) (LAA).[27]
[26] Primary reasons [192].
[27] Primary reasons [198].
In relation to the third question, the Warden held that s 20(5)(e) of the Act was confined to land which is the subject of a pastoral lease.[28] On this basis, this section did not prohibit mining within 400 m of water infrastructure on the Crown reserves.
[28] Primary reasons [217] - [219].

Notice of Appeal

On 11 July 2018, the appellant filed a notice of appeal. The notice of appeal contains 13 grounds of appeal, many of which raise similar issues. In summary, the issues raised on the appeal are:
(a)the proper construction of s 8, s 20(5)(c) and s 20(5)(e) of the Act (grounds 5, 7, 8 and 12);
(b)whether the issues raised by the respondents in their application for summary judgment were capable of being or should have been determined in a summary fashion or whether they should be determined after trial (grounds 1 and 2);
(d)whether the evidence adduced by the appellant was sufficient to discharge any evidentiary onus on an application for summary judgment and whether the Warden erred in his findings about the appellant's occupation of Crown Reserve 10041 (grounds 3, 4, 9, 10 and 11); and
(e)whether the Warden gave adequate reasons for his decision (ground 6) and afforded the appellant procedural fairness (ground 13).
Initially, the respondents contended the appeal was invalid and should be dismissed pursuant to s 147(1) of the Act.[29] However, at a directions hearing before Quinlan CJ[30] and at the commencement of the hearing before me, counsel for the respondents confirmed this contention was not pressed.[31]
[29] Respondents' notice as to purported notice of appeal filed 31 July 2018.
[30] ts (11 April 2019) 2.
[31] ts 9 - 10.
Under s 147(1) of the Act, any party aggrieved by any final judgment, determination or decision of a Warden's Court can appeal to the Supreme Court. Section 149 of the Act provides that:
Upon hearing of any appeal under this Act the Supreme Court –
…
(b) may confirm the order, determination or decision in respect of which the appeal is made and may dismiss the appeal; and
(c) may reverse, modify or vary such order, determination, or decision and may make such order in lieu therefore as it may think just; and
…
(e) may remit any case to the warden's court to be reheard.
Section 149 of the Act has generally been construed on the basis that, absent some contrary legislative intention, the powers granted under this section are to be exercised for the correction of error in the original decision, and not regardless of error at first instance.[32]
[32] Forrest & Forrest Pty Ltd v Honourable Marmion, Minister for Mines and Petroleum [2018] WASCA 32; (2018) 53 WAR 156 [58].
The appellant did not seek an order pursuant to s 148 of the Act that the appeal be by way of rehearing before a judge. For this reason, this appeal is an appeal in the strict sense and is required to be heard and determined on the basis of the evidence before the Warden's Court.[33] The notes, depositions, minutes of evidence, exhibits and other documents taken or filed in the Warden's Court or copies thereof certified to be correct by the Warden or mining registrar, may be used by the Supreme Court or any party to the appeal.[34]
[33] Mining Act 1978 (WA) s 148(2).
[34] Mining Act 1978 (WA) s 148(3).

Proper construction of the Act (grounds 5, 7, 8 and 12)

Each of these grounds contends the Warden erred in law in his construction of the relevant sections of the Act. Ground 5 concerns the Warden's interpretation of s 8 of the Act and grounds 7, 8 and 12 are in relation to the Warden's interpretation of s 20(5) of the Act.

Parties' submissions

The essence of the appellant's submission with respect to s 8 of the Act was that the Warden erred in finding the definition of 'occupier' was an exhaustive definition and that he did not place sufficient emphasis on the fact the definition was prefaced by the word 'includes' as well as the wider purpose of the Act.[35] The use of 'includes' as opposed to 'means' could only have been a deliberate act by the drafter given the use of both prefaces throughout s 8. This infers the term 'occupier' should not have been interpreted as being an exhaustive definition.[36]
[35] Appellant's submissions [128] - [131].
[36] Appellant's submissions [132] - [133].
The appellant contended the words 'under any lawful title granted by or derived from the owner of the land' had been included to make plain that mere occupation, such as by a trespasser, was insufficient and there was an additional requirement that occupation occur with the consent or permission of the legal owner. In this regard, the appellant submitted that, in the context of the Act, the term 'lawful title' does not equate to, or mean, 'legal title'. It contended that 'lawful' meant that the conduct was authorised, sanctioned or not forbidden by law whereas 'legal' meant the conduct was done or performed in accordance with the law or in a technical manner.[37] Counsel for the appellant submitted that the appellant's interest was 'some form of equitable lease and/or licence', without further specification.[38]
[37] Appellant's submissions [135] - [139].
[38] ts 12.
In relation to s 20(5)(c) of the Act, the appellant emphasised that this subsection referred to 'actual occupation' and did not include any reference to 'occupier' or a requirement for lawful title. The appellant contended the focus of s 20(5) was the protection of fixtures, fittings and 'things attached to the land'. On this basis, the appellant submitted the section was not primarily concerned with 'owners or whether people have any particular rights in relation to the land', but with the protection of physical property.
While ground 12 raised the proper construction of s 20(5)(e) of the Act, the appellant did not make any written or oral submissions in support of this ground of appeal at the hearing. It was not formally withdrawn and accordingly, I have considered this ground in these reasons.
The respondents submitted that the construction of the Act preferred by the Warden should be upheld. They contended that, if the construction proffered by the appellant was upheld, a person 'with apparent physical presence on an area of Crown land but no lawful title' could be an occupier within the terms of s 20(5)(c). This would enable them to withhold consent to any mining project and prevent it from occurring.[39] In their submission, this was not consistent with the purpose and objects of the Act.
[39] Respondents' submissions [16].
The respondents submitted that, notwithstanding the use of the word 'includes' in the definition of 'occupier', the meaning of occupier in s 20(5) of the Act was an exhaustive definition. The respondents emphasised that s 20(5) was only concerned with Crown land. For this reason, the land was always owned by someone other than the occupier. Counsel for the respondents emphasised that, as Crown land, it could only be dealt with in accordance with the prescriptive requirements of the relevant statutes.[40]
[40] Respondents' submissions [76].
Counsel for the respondents submitted that, on a proper construction of s 20(5)(c), it was necessary for the appellant to demonstrate that its actual occupation of the land in question was under a lawful title granted by or derived from the owner of the land. Because the land in question was Crown land, the interest must arise from statute[41] and title could not be granted except in accordance with the relevant statutory provisions.[42]
[41] Respondents' submissions [29] - [31].
[42] Respondents' submissions [37].
In relation to s 20(5)(e) of the Act, the respondents submitted there was no error in the Warden's construction of this provision. In their submission, the Warden's construction was consistent with a plain reading of the section.[43]

Disposition

[43] Respondents' submissions [91].

The principles of statutory construction are well known. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all provisions of the statute.[44] This requires consideration of the ordinary and grammatical sense of the statutory words to be interpreted, having regard to their context and legislative purpose.[45]
[44] Director General of Department of Transport v McKenzie [2016] WASCA 147; (2006) 77 MVR 306 [46] (Buss P, Murphy JA & Beech J agreeing).
[45] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [4].
The approach to be taken by the court was summarised by Buss P in Meyer v Solomon as follows:[46]
The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision.
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.
However, legislative history and extrinsic materials cannot displace the meaning of statutory text. Further, the examination of legislative history and extrinsic materials is not an end in itself.
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose.
Section 18 of the Interpretation Act 1984 (WA) provides that, in the interpretation of a provision of a written law (including all Acts for the time being in force), 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. The requirement in s 18 that one construction be preferred to another can apply only where two constructions are otherwise open. If the ordinary meaning conveyed by the text of a provision is to be modified by reference to the purposes or objects underlying the written law, the modification must be able to be identified precisely as that which is necessary to give effect to those purposes or objects and it must be consistent with the text otherwise adopted by the draftsperson. Section 18 requires a court to construe a written law, and not rewrite it by reference to its purposes or objects. (citations omitted)
[46] Meyer v Solomon [2021] WASCA 168 [77] - [81].
The question of the proper construction of an instrument, including a statutory provision, can only have one correct answer.[47] For that reason, on an appeal concerning the proper construction of an instrument, the court must determine for itself the correct construction. It is not necessary for an appellant to show a specific error in the construction adopted at first instance[48] or for the court to determine the merits of the criticisms or alleged errors in the primary court's construction.[49]
[47] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [154].
[48] Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson trading as Holgerssons Complete Home Service [2019] WASCA 114 [47].
[49] Dicom AWT Operations Pty Ltd v City of Stirling [2019] WASCA 117 [100].
The principal object of the Act is to regulate access to and the exploitation of mineral resources in Western Australia. Part III of the Act concerns land within Western Australia that is open for mining. The Act sets out three categories of land that are open for mining; Crown land (Div 1), public reserves (Div 2), and private land (Div 3). Each of these divisions addresses the restrictions (if any) on the availability of land for mining and, among other things, when the consent of the owner and occupier of the land in question is required.
In relation to Crown land, all land within Western Australia defined in s 8 of the Act as 'Crown land' is available for mining. The definition of 'Crown land' is a negative definition; that is, it includes all land within Western Australia except for the types of land set out in that definition.[50]
[50] Commonwealth v Western Australia [1999] HCA 5; (1999) 196 CLR 392 [226] (Hayne J).
Section 20 is headed 'Protection of certain Crown land'. Relevantly, it provides that:
(5)Notwithstanding that any Crown land to which this subsection refers may be marked out as or be included in a mining tenement, a mining tenement or Miner's Right does not entitle the holder thereof to prospect or fossick on, explore, or mine on or under, or otherwise interfere with, any Crown land that is -
(a)for the time being under crop, or which is situated within 100 m thereof;
(b)used as or situated within 100 m of a yard, stockyard, garden, cultivated field, orchard, vineyard, plantation, airstrip or airfield;
(c)situated within 100 m of any land that is in actual occupation and on which a house or other substantial building is erected;
(d)the site of or situated within 100 m of any cemetery or burial ground;
(e)land the subject of a pastoral lease within the meaning of the Land Administration Act 1997 which is the site of, or is situated within 400 m of the outer edge of, any water works, race, dam, well or bore, not being an excavation previously made and used for mining purposes by a person other than a lessee of that pastoral lease,
without the written consent of the occupier, unless -
(ea)the warden in relation to any land other than land referred to in paragraph (c) otherwise directs; or
(eb)in the case of mining, it is carried out not less than 30 m below the lowest part of the natural surface of the land,
but nothing in this subsection prevents such a holder from passing and repassing over any Crown land that is situated within -
(f)100 m of any Crown land that is -
(i)for the time being under crop; or
(ii)used as a yard, stockyard, garden, cultivated field, orchard, vineyard, plantation, airstrip or airfield; or
(iii)in actual occupation and on which a house or other substantial building is erected; or
(iv)the site of any cemetery or burial ground;
or
(g)400 m of any Crown land that is the site of any water works, race, dam, well or bore,
in order to gain access to other land (not being Crown land referred to in paragraph (f) or (g)), for the purpose of prospecting or fossicking on, exploring, mining on or under, or marking out that other land but a warden shall not give a direction under paragraph (ea) unless he is satisfied that the land is bona fide required for mining purposes and he is satisfied that compensation in accordance with section 123 for all loss or damage suffered or likely to be suffered by an owner or occupier of the land has been agreed upon or otherwise determined, or is assessed and settled in accordance with this Act.
That is, the section requires the written consent of the 'occupier' of the land to prospecting, exploring, or mining within specified distances of the matters set out in s 20(5)(a) to s 20(5)(e). With the exception of s 20(5)(c), the Warden can direct that these activities occur, subject to compensation to an owner or occupier being agreed or determined. The exception concerns the area that is within 100 m of land that is in actual occupation and on which a house or other substantial building is built. In respect of this land, the Warden does not have the ability to 'otherwise direct' that mining occur.
Section 8 of the Act defines both 'occupier' and 'owner'. These definitions are specifically stated to apply 'unless the contrary intention appears'. Section 8 defines 'occupier' in the following terms:
Occupier in relation to any land includes any person in actual occupation of the land under any lawful title granted by or derived from the owner of the land.
In turn, 'owner' is defined to mean:
(a)the registered proprietor thereof or in relation to land not being land under the Transfer of Land Act 1893 the owner in fee simple or the person entitled to the equity of redemption thereof; or
(b)the lessee or licensee from the Crown in respect thereof; or
(c)the person who for the time being, has the lawful control and management thereof whether on trust or otherwise; or
(d)the person who is entitled to receive the rent thereof.
The question as to proper construction of 'occupier' in s 20(5) of the Act has not been the subject of detailed judicial consideration, although it has been the subject of comment, primarily in relation to the consideration and determination of native title claims. In Western Australia v Ward, the majority of the High Court expressed the view that:[51]
When the use of the term 'includes' is contrasted with use of the term 'means' in the definition of 'owner', it may be that the Act does not limit what otherwise might be meant by the term 'occupier'. However, it is not necessary to reach any conclusion on this matter, nor is it necessary to determine whether the relevant native title holders were 'occupiers' under the WA Mining Act.
[51] Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 [318] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).
The only other commentary on the definition of 'occupier' in s 20(5) is in the decision of the Full Court of the Federal Court of Australia in James v State of Western Australia.[52] In that case, the Full Court expressed the view, in the context of a native title claim, that:[53]
The Crown is not apt to be described as the 'owner' of land the subject of native title, and that title is not 'granted or derived from the Crown'. The difficulty is created by the fact that the definition is inclusive.
[52] James v State of Western Australia [2010] FCAFC 77; (2010) FCR 582.
[53] James v State of Western Australia [78].
In Margaret River Resources Pty Ltd v His Honour Warden Calder SM,[54] McLure JA referred to the definitions of both 'owner' and 'occupier' in considering the question as to whether a reserve under the control of the local Shire was 'private land' for the purposes of the Act. Her Honour noted that the terms 'owner' and 'occupier' are used in the Act in relation to all categories of land, including in imposing an obligation to give notice of any application under the Act. In that context, her Honour observed that '[t]he terms owner and occupier are wide enough to include persons who do not necessarily have an interest (legal or equitable) in the land itself'.[55]
[54] Margaret River Resources Pty Ltd v His Honour Warden Calder SM [2008] WASCA 238.
[55] Margaret River Resources Pty Ltd v His Honour Warden Calder SM [27] (McLure JA, Steytler P & Newnes AJA agreeing).
In considering the potential scope of the term 'concession', her Honour referred to the wide powers of the Crown to grant various interests in Crown land under the LAA including the power to grant leases, easements, profits a prendre, options to purchase, and licences. Of these, her Honour noted that it was only a licence that may not give rise to an interest in land.[56] McLure JA went on to state that:[57]
An alternative explanation for the expansive definition of owner (and occupier) in Pt III Div 3 of the Mining Act which relates to private land is that persons with rights and privileges short of an estate or interest in the land may be affected, financially or otherwise, by the grant of a mining tenement on private land such as to justify the extension to them of the rights and protections in that Division. The fact that a number of other rights and protections, including a right to compensation (s 123), are extended to owners and occupiers of Crown land and reserved land supports the alternative view.
[56] Margaret River Resources Pty Ltd v His Honour Warden Calder SM [31].
[57] Margaret River Resources Pty Ltd v His Honour Warden Calder SM [34].
It is not in dispute that the ordinary and natural meaning of the word 'includes' is that it is a term of enlargement. However, it is accepted that the word 'including' can serve a number of different functions in the definition of a term, namely:[58]
(a)to extend the meaning of the word beyond its ordinary meaning;
(b)to set out an exhaustive explanation of the meanings to be attached to the word; or
(c)to make clear that matters are included within the definition that otherwise may have been in doubt.
[58] Appellant's submissions [95]. See Urica Library System BV v Sanderson and Computers Pty Ltd [1997] NSWSC 454 (Sheller JA).
In YZ Finance Co Pty Ltd v Cummings, Kitto J noted:[59]
Unlike the verb 'means', 'includes' has no exclusive force of its own. It indicates that the whole of its object is within its subject, but not that its object is the whole of its subject. Whether its object is the whole of its subject is a question of the true construction of the entire provision in which the word appears. The well-known statement of Lord Watson in Dilworth v Commissioner of Stamps should not be taken so literally as to reduce the inquiry in a case like the present to an inquiry into the meaning of the word 'includes'. Strictly speaking, that word cannot be equivalent to 'means and includes'. But a provision in which it appears may or may not be enacted as a complete and therefore exclusive statement of what the subject expression includes. A provision which is of that character has the same effect as if 'means' had been the verb instead of 'includes'. The question whether a particular provision is exclusive although 'includes' is the only verb employed is therefore a question of the intention to be gathered from the provision as a whole.
[59] YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395, 402.
The purpose of a definition is to assist in the construction of the statute. For that reason, the definition cannot be construed in isolation but must be considered in the context in which it appears in the statute. As McHugh J stated in Kelly v The Queen:[60]
Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment.
[60] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [103].
In considering a definition using the word 'includes', the court will consider whether other matters can be identified in addition to those contained in the definition as falling within the word. If this can be done, this is an indication that the defined word is not an exhaustive definition.[61] However, where allowing the defined expression to have an unlimited meaning or operation would invalidate the definition, the definition should be read as exhaustive.[62]
[61] Re Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351, 364.
[62] Riordan v Australian Sports Drug Agency [2002] FCA 858; (2002) 120 FCR 424.
That is, the mere fact that the definition of 'occupier' contains the word 'includes' does not, of itself, mean that the definition cannot be exhaustive. On this basis, I do not accept the appellant's submission that this alone should have resulted in the application for partial summary judgment being dismissed. The question as to whether the definition is inclusive or exhaustive depends on the proper construction of s 20(5) of the Act.
Before turning to the specific text of s 20(5), it is useful to summarise its purpose and context. At a general level, the scope and purpose of the Act is to regulate mining in Western Australia, identify the land that is 'open for mining', and to set out the basis on which interests under the Act will be processed, granted, terminated or forfeited.[63] As the Court of Appeal confirmed in Thompson v Siberia Mining Corp Pty Ltd, an object of the Act is to:[64]
ensure as far as practicable that land which has either known potential for mining or is worthy of exploration will be made available for mining or exploration. It is made available subject to reasonably stringent conditions and if these, including expenditure conditions, show that the purposes of the grant are not being advanced, then the Act and regulations make provision for others who have an interest in those purposes on that land to apply for forfeiture so they may exploit the area.
[63] Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175 [20] (Pullin JA).
[64] Thompson v Siberia Mining Corp Pty Ltd [2021] WASCA 115 [17] quoting with approval Nova Resources NL v French (1995) 12 WAR 50, 57 ‑ 58.

Prior to the enactment of the Act, mining in Western Australia was governed by the Mining Act 1904 (WA). There are a number of relevant differences between the Act and the Mining Act 1904. Notably, the term 'owner' was defined the Mining Act 1904; the term 'occupier' was not.
Section 26 of the Mining Act 1904 conferred a number of privileges on the holder of a 'miner's right'. These included:
(a)the right to take possession of, mine and occupy Crown land for mining purposes (s 26(1));
(b)to take possession of and occupy Crown land as an authorised holding (s 26(2)); and
(c)to erect and remove any building or structure on any Crown land lawfully occupied (s 26(7)).
The only exemptions from these rights were set out in s 28 of the Mining Act 1904. These exemptions were:
(1) Land already occupied by virtue of a miner's right;
(2)Land in lawful occupation as a yard, garden, orchard, or cultivated field;
(3) Land in actual occupation on which a house or other substantial building has been erected; and
(4) Land on which an artificial dam or reservoir has been made or a well or bore sunk:
Provided that any such land, not being a claim, may be occupied as a claim -
(a)if the miner shall first make compensation for any improvements to the occupier of the laud, such compensation to be assessed by the Warden; or
(b)for mining below the surface on conditions prescribed by the regulations.
That is, the exemption in s 28 of the Mining Act 1904 enabled mining to occur on Crown land on which there was a house or substantial building in actual occupation, subject to compensation being paid to the occupier. There was no requirement, however, that the land be in 'lawful occupation'.
This balance between the competing rights of parties with interests in the same Crown land was altered by s 20 of the Act. While this section does not prevent the land from being included in a mining tenement, it introduced a requirement for the written consent of the 'occupier' to be obtained prior to mining occurring over particular areas of Crown land, namely within a buffer zone of 100 m of the specified areas. In all cases apart from 'land that is in actual occupation and on which a house or other substantial building is erected',[65] the Warden is able to override the views of the 'occupier' and direct that mining occur. As was noted in the second reading speech on the introduction of the Act, the protections in this section aim to provide safeguards and compensation to pastoralists while retaining the right to prospect for minerals without unduly restrictive provisions.[66] That is, the purpose of s 20 of the Act is to set out the balance which the legislature considers appropriate between mining and other land uses of the same Crown land.
[65] Mining Act 1978 (WA) s 20(5)(c).
[66] Mr Mensaros, Minister for Mines, Second reading speech, Legislative Assembly, 24 August 1978, p 2621.
The context for consideration of the proper construction of 'occupier' and 'actual occupation' in relation to Crown land includes this legislative history and the starting point is that all Crown land is available for mining unless it is subject to an exemption from the Minister (s 19) or protected (s 20). It also includes the position that all pastoral leases are granted over Crown land.
I turn then to the text of s 20(5) and the proper construction of 'occupier' and 'actual occupation' as they appear in this section.
In determining the proper construction of these terms, three issues of construction arise. First, whether the definition of 'occupier' applies or whether 'the contrary intention appears'. Second, whether the definition of 'occupier' in s 20(5) of the Act includes matters not expressly included in s 8 or whether this definition is exhaustive. Finally, whether the protection afforded by s 20(5)(c) is only to an 'occupier' who has actual occupation of a house or substantial building, or whether it protects any house or substantial building that is actually occupied.
As was noted by Handley AJ in Qantas Airways Ltd v Chief Commissioner of State Revenue, there is a presumption that defined words have their defined meaning, which should not be displaced without good reason.[67] The proper approach is to assume the term is given its defined meaning and then consider whether, in the particular context in which the term is used, a contrary intention has been shown.[68]
[67] Qantas Airways Ltd v Chief Commissioner of State Revenue [2008] NSWSC 1049 [38].
[68] Pearce, Statutory Interpretation in Australia (9^th ed, 2019) [6.12].
In Duperouzel v Cameron, Burt J summarised the approach to be adopted in the following terms:[69]
As by the Act the defined expression is to carry that meaning 'unless a contrary or other intention appears' the possibility always exists that an intention that it should bear a different meaning may appear, and should it appear, the definition must be departed from so as to accommodate that intention. But the contrary or other intention must, or so it seems to me, be found within the particular context in which the defined word appears, and when found, the definition is then departed from for the purposes of that particular provision only. It cannot be right to search through the Act to find a number of provisions not including the relevant provision in which the intention to depart from the definition appears and having found them, then to say that the contrary intention appears for all the purposes of the Act and hence for the purposes of the relevant provision.
Or in other and more particular words, one cannot say that because an intention appears in a number of sections of the Liquor Act (and whether it does so appear is not for me to decide), that the expression 'licensed premises' be understood to include a boat the subject of a packet license it therefore follows that it is used in that sense in, so that the statutory definition is not applicable to, s 126(1)(a).
What must appear is a contrary or other intention as to the meaning of the expression as it is used in that section, and as there is nothing to be found within that section which indicates any such intention the words as there appearing must be read with the defined meaning.
[69] Duperouzel v Cameron [1973] WAR 181, 182 - 183. See also Melrose Farm Pty Ltd t/as Milesaway Tours v Milward [2008] WASCA 175; (2008) 175 IR 455 [52] (Le Miere J).
Adopting this approach, I consider the definition of 'occupier' in the context of s 20(5) of the Act to determine whether 'the contrary intention appears'.
Section 8 of the Act defines a large number of terms. It is notable that the drafter has defined terms using both 'means' and 'includes'. On its face, this indicates a deliberate decision has been made to use 'includes' rather than 'means' in the definition of 'occupier', although, by itself, this is not determinative.[70] It is also relevant that the verb 'includes' is not followed by a list of specified things which have a common element.
[70] Lamont v Commissioner of Railways [1964] NSWR 406; (1963) 80 WN (NSW) 1242.
As set out above at [59], the use of the word 'includes' in the definition of 'occupier' can have one of three purposes. In considering which of these purposes applies in the context of s 20(5), it is necessary to first consider the ordinary and natural meaning of 'occupier'.
The Macquarie Dictionary defines 'occupier' as meaning 'a person having the legal right to reside, or who is residing, in a house, on land etc'.[71] The Oxford English Dictionary defines 'occupier' as meaning 'a person who takes or (more usually) holds possession; a person who holds or is in actual possession of property, especially a dwelling or land, or a position or office'; or 'a person living in a dwelling as its owner or tenant'.[72] That is, the natural and ordinary meaning of the word 'occupier' encompasses two separate concepts: first, a legal right of occupation and second, factual occupation of the land or premises in question. The natural and ordinary meaning of 'occupier' does not require these two concepts to co‑exist. Either one or the other may be present, although the focus is primarily on factual occupation. For this reason, on its natural and ordinary meaning, a squatter may be an occupier of premises even though their original entry was unlawful and there is no legal right for them to be there. That said, as noted by Dunn J in Woodcock v South Western Electricity Board, the meaning of the word 'occupier' may have a different meaning in different statutes.[73] Its meaning will depend on the context and purpose of the legislation in question.
[71] Macquarie Dictionary.
[72] Oxford English Dictionary.
[73] Woodcock v South Western Electricity Board [1975] 2 All ER 545, 549.
The definition of 'occupier' in the Act also encompasses two elements: first, actual occupation and second, lawful title derived from the owner of the land. In the Act, these elements are linked by the preposition 'under'. For this reason, these two elements are connected or related to each other and both elements must be present for a party to be an 'occupier'.
On this basis, I do not consider the definition of 'occupier' in the Act extends the usual definition of the word. Instead, the definition narrows the ordinary and natural meaning of the word. I also do not consider that the definition of 'occupier' in the Act includes within it a matter that would otherwise have been in doubt. As set out above at [78], the natural and ordinary meaning of 'occupier' encompasses those with a legal right of occupation who are in actual occupation of the property.
In considering whether the definition of 'occupier' is exhaustive, it is useful to consider whether it could include matters that are not expressly included within the definition. On its face, the definition of 'occupier' does not include an owner‑occupier. This is because an owner is not in occupation of the land under any title granted by or derived from the owner of the land. Rather, an owner occupies the land as an exercise of one of the bundle of rights they have as a consequence of ownership. The fact that the definition of 'occupier' excludes the 'owner' of the land is made clear by s 8(3) of the Act. This section states that a reference in the Act to an owner and occupier of private land includes a reference to a person who is both. On this basis, I consider the definition of 'occupier' does not include the owner of the relevant land.
In relation to other divisions of the Act, particularly private land, equitable interests, equities or contractual rights may exist pursuant to which a person has a right to occupy the land. For the purpose of this matter, it is not necessary to reach a concluded view as to whether these rights fall within the definition of 'occupier'. This will depend on whether the equitable rights are found to arise under a 'lawful title'. It is also possible that 'occupier' could include a party who occupies land by asserting a right of possession by way of adverse possession which will be 'good against all the world except the real owner'.[74] In my view, this is unlikely to be a 'lawful title granted by or derived from the owner of the land'. Accordingly, in other parts of the Act, it is possible that there are other matters besides those which are contained in the express words of the definition that could fall within the term 'occupier'. On this basis, without deciding the matter, I consider it is possible that the definition may not be an exhaustive definition for all purposes of the Act.
[74] Perry v Clissold (1906) 4 CLR 374, 377 (Lord MacNaughten).
However, for the following reasons, none of these examples apply to Crown land. First, all persons with rights in Crown land derive any right of occupation from the State as owner of the land, as explained below at [89] ‑ [95]. For this reason, the concept of an 'owner-occupier' does not arise in respect of Crown land. Second, in contrast to private land, all interests in Crown land are wholly regulated by statute. Unless there is statutory authority for the creation of an interest in Crown land, no interest will exist.[75] Put another way, there can only be lawful or legal title or interests in respect of Crown land. Finally, there can be no title by adverse possession in relation to Crown land.[76]
[75] Western Australia v Ward [216].
[76] Limitation Act 1935 (WA) s 36.
There is nothing in the language of s 20(5) of the Act to suggest there is any intention that the term 'occupier' should not have its defined meaning. In my opinion, from the language of s 20(5), in the context of div 1 of pt III of the Act and the purpose of the Act as summarised in [64] ‑ [70] above, the term 'occupier' in s 20(5) can only include a party in actual occupation of the land under a lawful title granted by or derived from the State, as owner of the Crown land. The appellant did not, in written or oral submissions, identify what other matters could fall within this definition. The only other matters which, in my view, may fall within this definition do not apply to Crown land. On this basis, I consider that 'occupier', in the context of s 20(5), is an exhaustive definition. In my view, this construction is consistent with the purpose of the Act, which is to facilitate and promote the mining of resources in Western Australia, and the section which is to provide protection to a limited class of persons for limited purposes.
For these reasons, it is my view that the Warden correctly held that the definition of 'occupier' in s 20(5) of the Act was exhaustive. On this basis, ground 5 should be dismissed.
I turn then to consider what is lawful title granted by or derived from the owner of the land. At the hearing before me, counsel for the appellant accepted the protections provided by s 20(5) of the Act did not extend to squatters or those persons or parties who have taken possession of the land without the permission of the owner or the Shire. In the appellant's submission, while these parties might be in occupation of the land, any occupation was not 'under lawful title granted by or derived from the owner of the land'. Counsel sought to distinguish the appellant's occupation of the land as occurring with the consent or acquiescence of the State or the Shire, that is, not unlawfully.
Given the land in question is Crown land, I do not accept that it is sufficient for the purposes of s 20(5) for occupation to occur with the consent or acquiescence of the State or Shire. As set out above at [83], an interest in Crown land can only be created if there is compliance with the relevant statutory instruments. Without this, no lawful interest exists. For this reason, unless the right of occupation on which reliance is placed is one provided for by the relevant legislation, occupation in accordance with that claimed right is not legally or lawfully authorised. In this regard, I do not accept the submission of the appellant that 'lawful title' means occupation that is not unlawful or which occurs with the permission of the owner. In my view, 'lawful title' refers to someone who lawfully enters into occupation of the land. The requirement that the 'lawful title' be granted or derived from the 'owner' of the land, in my view, supports a requirement that the lawful title be a proprietary or, at a minimum, a quasi-proprietary interest.[77] This will include instruments such as a licence or lease or sub-licence or sub-lease. The use of the phrase 'lawful title' as opposed to 'legal title' recognises that a licence will give a licensee lawful occupation of the land, but does not create a legal interest in the land.[78]
[77] Dial a Dump Industries Pty Ltd v Roads and Maritime Services [2017] NSWCA 73; (2017) 94 NSWLR 554 [180] (Leeming JA).
[78] Pourzand v Telstra Corporations Ltd [2014] WASCA 14 [124] (Murphy JA).
As a consequence, it is necessary to consider what is 'lawful title' in relation to Crown lands.
Crown lands are those part of the 'waste lands' in Western Australia that are still under the control of the State.[79] Pursuant to s 3 of the Constitution Act 1890 (UK), the 'waste lands' (including all 'royalties, mines, and minerals') were vested in the Western Australian legislature.
[79] Commonwealth v Western Australia [240] (Hayne J).
In 1898, the Land Act 1898 (WA) was enacted for the purpose of consolidating and amending the laws relating to the sale, occupation and management of Crown lands. Pursuant to s 4 of the Land Act 1898, the Governor was authorised to dispose of the Crown lands 'in the manner and upon the conditions prescribed by this Act or by any Regulations made thereunder'. Section 39 authorised the Governor to make reserves for a number of purposes, including '[f]or commons for the use of the inhabitants of any town or settlement' (s 39(14)). Where a reserve was created by the government, s 40 of the Land Act 1898 required 'a full and complete description of every such reserve, and of the purposes for which it is made' to be published in the Government Gazette.
In 1934, the Land Act 1898 (WA) was replaced by the Land Act 1933 (WA). The Land Act 1933 retained these provisions in s 7 (authorisation of the Governor to dispose of Crown land), s 29 (authorisation to make reserves including commons), and s 30 (the requirement for publication in the Government Gazette). Where a reserve was not immediately required for the purpose for which it was made, the Governor could grant a lease for a period not exceeding 10 years provided that, where the lease was for more than one year, applications were called for by notice in the Government Gazette (s 32).
Under s 13 of the Land Act 1933, 'all leases, licences, transfers and instruments' disposing of Crown lands were required to be signed by the Minister responsible for administration of the Act or an officer authorised by the Governor. No transfer, mortgage or sub‑lease of any lease or licence was valid without approval in writing of the Minister or an officer authorised by the Governor (s 143(1)).
In March 1998, the Land Act 1933 was replaced by the LAA. Relevantly, under the LAA:
(a)a person could not assign, sell, transfer or otherwise deal with interests in Crown land or create or grant an interest in Crown land without prior written approval of the Minister (s 18(1) and s 18(7));
(b)a person could not grant a lease or licence under the Act or a licence under the Local Government Act 1995 in respect of Crown land in a managed reserve without prior written approval of the Minister (s 18(2) and s 18(7));
(c)any act done in contravention of s 18(1) and s 18(2) was void (s 18(6)) unless approval was not required under s 46(3b) of the LAA;
(d)a dealing in relation to Crown land 'created or lodged' under the LAA was not effective until the dealing was registered (s 19);
(e)the Minister (rather than the Governor) had the power to create reserves on Crown land (s 41);
(f)the Minister can by order place the care, control and management of a reserve with a management body (s 46(1)) and confer on that management body the power to grant a lease, sublease or licence (s 46(3)). Where this occurs, Ministerial approval is not required for the grant of a lease, sublease or licence (s 46(3b)); and
(g)the Minister can grant licences (s 91) and easements (s 144) over Crown land.
The LAA also established the Pastoral Land Board (div 2, LAA) to manage and administer pastoral leases. The power to grant pastoral leases was retained by the Minister (s 101). Under the transitional provisions of the LAA, any land that was reserved under the Land Act 1933 is taken to be land reserved under s 41 of the LAA (cl 14(2), sch 2).
The effect of these provisions is that an equitable interest in Crown land, including Crown reserves, cannot be created. For this reason, the only interests that can be created in Crown land are 'lawful interests' or 'legal interests'. On this basis, it is only lawful interests or title created under the Land Act 1898, Land Act 1933, or LAA that will receive the protection granted by s 20 of the Act.

The final issue of construction to be resolved on this appeal is the inter‑relationship of 'occupier' and 'actual possession' in s 20(5)(c) of the Act. In relation to the phrase 'actual occupation', in my view, this requires there to be acts of physical occupation; constructive possession will not be sufficient. This requires occupation in fact, which is more than nominal or notional.[80]
[80] Daruk Local Aboriginal Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140, 162.
This view is consistent with the views expressed by the majority of the High Court in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council in considering whether the particular lands in question were not 'lawfully used or occupied', that:[81]
[R]ecurring physical acts on the land, by which the land is made to serve some purpose, will usually constitute a use of the land. And a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land.
[81] Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 82 ALJR 1505 [69].
In this regard, I do not accept the appellant's submission that the purpose of s 20(5)(c) is to protect fixtures on the land. In my view, the purpose of this sub‑section is to define the circumstances in which land which is otherwise open for mining cannot be mined and to balance the competing interests of those seeking to use the same land. The view is reinforced by the remaining sub-paragraphs of s 20(5) which protect crops, stockyards, airfields and airstrips, cemeteries and water infrastructure. For this reason, I do not accept the submission that 'actual possession' must be read separately from the words 'without the written consent of the occupier'. In my view, when s 20(5) is read as a whole, the section creates a buffer zone around the specified areas of an 'occupier' unless their written consent is provided or direction is given by the Warden.
For the reasons set out above, I do not consider there is any merit in grounds 7 and 8 and these grounds should also be dismissed.
Ground 12 of the appeal concerns s 20(5)(e) of the Act. On its face, this subsection prevents land 'the subject of a pastoral lease' which is the site of water infrastructure or within 400 m of such infrastructure being the subject of prospecting, exploration or mining without the written consent of the 'occupier' or the direction of the Warden.
That is, unless the water infrastructure is located on a pastoral lease, s 20(5)(e) does not afford any protection to the infrastructure. This is consistent with the conclusion of the Warden at [221] of his Honour's reasons for decision.
There is no basis for the contention that the Warden 'imported the[se] words [the subject of a pastoral lease]' into the construction of this sub-section. These words are expressly included in the sub‑section and must be given their full meaning and effect.
In my view, there is no merit in this ground of appeal and ground 12 of the appeal ought be dismissed.

Was this an appropriate vehicle for summary judgment? (grounds 1 and 2)

The appellant contends the Warden erred in determining there was no question of fact or law requiring determination at trial (ground 1) and that the Warden erred in law in failing to apply the applicable principles of summary judgment in his reasons for decision (ground 2).
The Warden summarised the relevant principles of summary judgment at [20] ‑ [27] of the Primary reasons. The appellant does not contend there was any error in the Warden's summation of the law. Rather, the appellant submits the Warden failed to apply these principles correctly.

Parties' submissions

In support of its contention in ground 1 of its appeal that the Warden erred in determining there was no real question of fact or law which required determination following trial, the appellant raised three separate arguments. First, that on the appellant adducing evidence in relation to the previous pastoral leaseholder who first occupied Crown Reserve 10041 and other reserves in the 1960s, the Warden should have determined there were issues of fact that could only be determined at trial. Second, the appellant was denied a reasonable opportunity to collate and provide evidence of the authorisation given by the Crown for the appellant and its predecessors to occupy Crown Reserve 10041 and other Crown reserves from the 1960s. Third, the matters the subject of the summary judgment application related to complex questions of law that should not have been determined on an application for summary judgment and should have been determined at trial.
The appellant submitted that for the respondents to succeed on their application for partial summary judgment, it was necessary for them to show that the appellant did not have a lawful interest granted or derived from the owner of the land. At the hearing, the appellant adduced evidence that it had occupied Crown Reserve 10041 and the other Crown reserves without objection since this time. The appellant contended that this evidence was sufficient to discharge any evidentiary onus on it and raised a factual issue which could only be determined at trial.
The appellant placed considerable emphasis on the timetable for the programming of this matter and the impact of the change of solicitors that occurred during this period. The appellant contended that, resulting from the late change of solicitors and the fact that the appellant's current solicitors had not received the file from the previous solicitors as at 18 January 2018, the affidavits filed on behalf of the appellant between 18 January 2018 and 20 March 2018 were prepared in haste.
The appellant submits that access to historical documentation from 1964 was essential to a proper consideration of the matter. At the time the appellant filed its affidavit material, the appellant had sought access to records and documents but had not received a fulsome response. The appellant contended that if it had been given more time to respond to the application, it could have undertaken a full and thorough investigation, including by issuing subpoenas to various government departments[82] and cross‑examination of witnesses. The inability to use these interlocutory processes was, in the appellant's submission, a denial of procedural fairness.[83]
[82] Appellant's submissions [57] - [62].
[83] Appellant's submissions [65].
The appellant also submitted that the Warden made a number of findings of fact adverse to the appellant even though 'insufficient time had been provided to the appellant to put all relevant material before the court'[84] and 'in circumstances where there has been limited opportunity to obtain information from government departments'.[85] The appellant submitted 'it was not open' to the Warden to conclude there was a lack of authorisation for the appellant's occupation of Crown Reserve 10041 on an application for summary judgment. Counsel for the appellant submitted that, had the appellant been afforded the opportunity to use interlocutory processes prior to trial, additional material would have been available to them.[86]
[84] Appellant's submissions [75].
[85] Appellant's submissions [76].
[86] Appellant's submissions [79].
The appellant contended that where the Warden had noted no evidence had been presented on certain matters, it was unreasonable for the Warden to draw a conclusion adverse to the appellant in circumstances where the appellant had not had an opportunity to make enquiries to ascertain these matters.[87] By way of specific example, the appellant referred to the Warden's observation in relation to the letter from the Under Secretary for Lands that:[88]
first, the development plan the Minister is said to have approved is not attached to the letter. Second, the letter makes no reference to the Reserve 10041 or the Pinjin Homestead or that the development plan includes improvement to the land the subject of the Reserve.
[87] Appellant's submissions [108] - [109].
[88] Primary reasons [196].
At the hearing before me, counsel for the appellant agreed these matters were not raised at the hearing before the Warden. However, the appellant contended that given the chronology of the matter and the affidavits that were filed, it was necessary for the Warden to consider whether this was an appropriate vehicle for summary judgment[89] and 'to provide the appellant an opportunity to rectify those issues.'
[89] ts 15.
Finally, the appellant submits the matters raised on the application related to complex questions of law that could not be determined by way of summary judgment and should have been determined at trial. In this regard, the appellant contended the question as to the proper construction of the Act, particularly where a central question was the use of 'includes' as opposed to 'means' in the definition of 'occupier' in s 8 of the Act, could only be resolved at a final hearing and should not have been resolved on a summary determination. Counsel for the appellant relied on the decision of Smith J in BGC Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd[90] where her Honour held it was not appropriate on an application for summary judgment to finally resolve the proper construction of the clause under consideration in that case.[91]
[90] BGC Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2019] WASC 248.
[91] BGC Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [77].
In relation to ground 2, counsel for the appellant submitted that while the Warden correctly summarised the principles governing an application for summary judgment at [20] ‑ [27] of his reasons, he did not refer to those principles again in his decision or why he considered the matter was appropriately the subject of an application for summary judgment. Specifically, the appellant contended the Warden did not address why he considered there was no reasonable argument in relation to the proper construction of s 20(5) of the Act.[92]
[92] ts 16.
The respondents emphasised that the appellant engaged in the substantive point of construction of the Act before the Warden and did not raise issues about the adequacy of its evidence, including whether it required more time or was seeking to put on further evidence.[93] The respondents denied the appellant was not given an adequate opportunity to investigate the matter and put on evidence. The respondents drew attention to the fact that the appellant 'failed to seek to adduce on this appeal the specific evidence that it asserts it lost the opportunity to present below and could have changed the result below'.[94]
[93] Respondents' submissions [50] - [51].
[94] Respondents' submissions [53] - [54].
The respondents contend that the question of construction of s 20(5)(c) was 'ripe' for summary determination and the appellant had not shown any error in the Warden's exercise of procedural discretion to determine the point on the partial summary judgment application. In this regard, the respondents emphasised that at the hearing before the Warden, senior counsel appeared on behalf of the appellant, made fulsome submissions on the question of law and did not contend the issue could not be determined summarily.[95] The Warden identified the relevant principles and exercised his discretion on the basis that the point had been fully argued, with substantial written and oral submissions from both parties. This was done so because, in the respondents' submission, the matter called for prompt resolution (in circumstances where an urgent interim injunction had been sought by the respondents and granted by the Warden). On this basis, counsel for the respondents submitted there was no merit in the appellant's contention that this question should not have been determined by summary judgment.
[95] Respondents' submissions [55].
Counsel for the respondents denied any further time would have assisted the appellant. Given the finding of the Warden that the appellant must have lawful title granted or derived from the owner of the land, it was unnecessary for the appellant to enquire into possible historical activities on the Crown reserves.[96] These historical documents do not assist in the proper construction of s 20(5) of the Act nor whether the appellant has lawful title to the homestead located on the Crown reserve and, accordingly, were irrelevant. Any additional documents that might be located would not create a genuine issue of fact requiring resolution at trial.
[96] Respondents' submissions [41] - [42].
In relation to ground 2, the respondents submitted this ground of appeal could not succeed because it is clear from the Warden's decision that he applied the principles of summary judgment he had identified.[97] The respondents contend the appellant's complaint concerns the result arising from the Warden's application of the principles as opposed to an error of law in the identification of the principles.

Disposition

[97] Respondents' submissions [63] - [64].

It is trite that summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care and it is only in the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted.[98] This applies in a summary judgment application supported by evidence.[99]
[98] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24]; Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].
[99] Spencer v The Commonwealth of Australia [24]; Fancourt v Mercantile Credits Ltd, 99.
A summary judgment application is not the occasion to resolve which argument is to be accepted, particularly where not all of the relevant facts have been agreed.[100] A party should not be denied the opportunity to put his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes.[101]
[100] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [33].
[101] Spencer v The Commonwealth of Australia [24]; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Shilkin v Taylor [2011] WASCA 255 [30] - [41].
In determining whether there is a real question to be tried:
(a)it is settled that where there is a serious point of law raised by a defendant, the matter should not be determined summarily; unconditional leave to defend should be given;[102]
(b)a judge has a discretion in deciding whether the question of law raised is so difficult it should not be decided summarily. No doubt sometimes some explanation or reference to authorities will be necessary to enable a judge to decide whether a question is really unarguable;[103]
(c)the applicant for summary judgment bears the legal onus of establishing there is no real question to be tried, after which the evidential burden shifts to the respondent to show there is a triable issue or an arguable defence;[104]
(d)the defendant does not have to show a defence on the balance of probabilities but must, at least, show cause as to why there is an arguable defence.[105] Even where the defendant cannot point to a specific issue which ought to be tried, he or she may be able to satisfy the court that the circumstances ought to be investigated;[106]
(e)extensive argument may be necessary to demonstrate that a party's case is so clearly untenable that it cannot possibly succeed.[107] If after argument, there remains real certainty as to the applicant's right to judgment without further investigation of the facts, summary judgment must be refused; and
(f)where the plaintiff's application fails, the appropriate course is to allow the matter to proceed to trial; summary judgment differs from a preliminary issue to be determined before trial. An application for summary judgment is not the occasion for determining, adversely, to the plaintiff and finally, a question of law.[108]
[102] Theseus Exploration NL v Foyster [1972] HCA 41; (1972) 126 CLR 507, 515 (Gibbs J) citing Bundock Bros. v Bergyl and Co (1897) 8 QLJ 106 (Griffith CJ) and Commonwealth Dairy Produce Equalisation Committee Ltd v Hansen [1944] QSR 95, 98 (Mansfield J).
[103] Theseus Exploration NL v Foyster, 515 (Gibbs J); Astor Theatre WA Pty Ltd v Zimmermann Investments Pty Ltd [2014] WASC 329 [26].
[104] Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 [54].
[105] Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27 [4].
[106] HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153 [95]; Wedge v Service Finance Corp Ltd [2002] WASCA 54 [24] - [31].
[107] Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332, 334.
[108] Primary reasons [27] citing Southern Region Pty Ltd v The Minister for Police and Emergency Services (2003) VSCA 105 [14] (Phillips JA with whom Buchanan JA agreed).
In determining whether a question of construction is appropriate for summary judgment, the court needs to consider whether it has had the benefit of 'full argument' sufficient to resolve the issue of construction and for the court to be satisfied it is appropriate to finally determine the proper construction of the matter in issue.[109]
[109] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [94] (Murphy JA).
Relevant factors in determining whether a question of construction should be determined on a summary basis include whether the competing constructions reconcile all of the relevant words of the clause or section under consideration and whether there are any facts before the court. In BGC Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd, Smith J expressed the view that, where there are no facts and the submissions do not reconcile all of the operative words, the constructional choice should only be resolved in a final hearing.[110]
[110] BGC Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [73] - [75].
The issues in this case turn on the proper construction of the Act. If the construction put forward by the respondents is correct, there is little evidence that is relevant or admissible. In these circumstances, in order for the appellant to successfully defend the claim for summary judgment, it would be necessary to adduce evidence that it has an arguable claim it is an occupier under a 'lawful title' granted in respect of Crown Reserve 10041.
As was noted by Toohey J in Mabo v Queensland [No 2]: [111]
Possession is conclusion of English law, a law alien to indigenous inhabitants before annexation. … Occupation on the other hand is a question of fact. In some cases the person in occupation is not the possessor of land … But it may be presumed, in the absence of circumstances which show possession is in another, that the occupier of land is also in possession.
[111] Mabo v Queensland [No 2] (1992) 175 CLR 1, 212.
In this case, it was not in dispute that, as a matter of fact, the appellant occupied the homestead on Crown Reserve 10041. For this reason, on the application for summary judgment, it was necessary for the respondents to satisfy the Warden that, on a proper construction of the Act, there was no serious question to be tried that the appellant was also in possession of Crown Reserve 10041.
There are only three circumstances in which the appellant could be 'in possession' of or have a lawful interest in Crown Reserve 10041. First, if the appellant had a lease of Crown Reserve 10041, and that interest was registered. Second, if the appellant had a licence, sub‑lease or sub‑licence in Crown Reserve 10041, which had the prior written approval of the Minister. Any such interest could, but was not required to, be protected by a caveat, pursuant to s 20 of the LAA. Third, where the Minister has conferred on a management body the power to grant a lease or licence, that management body had granted the appellant a lease or licence in Crown Reserve 10041. In each of these circumstances, all relevant documents will be registered against the title, publicly available through the Government Gazette, or within the knowledge of the appellant. There was no evidence before the Warden that any of these circumstances applied to the appellant. As such, there was no matters that required factual resolution on the application.

If, on the other hand, the appellant's construction of the relevant provisions is to be preferred and all that was required was for the appellant to establish occupation of Crown Reserve 10041 with the permission and consent of the lawful owner, it is my view that the appellant adduced sufficient evidence before the Warden to discharge the onus on a summary judgment application.
That is, the question as to whether the respondents are entitled to partial summary judgment depends on whether there is a reasonably arguable basis on which the appellant's construction of the Act could be correct. This position was accepted by senior counsel for the appellant at the hearing before the Warden. Specifically, senior counsel submitted there was a clear legal answer to the proper construction of s 20(5) of the Act, but that it was not the construction contended by the respondents.[112]
[112] ts (22 March 2018) 99.
At the hearing before me, the appellant contended this was not an appropriate vehicle for summary judgment for three primary reasons. First, the application required a 'complex determination' of s 8 and s 20(5) of the Act; second, the application 'required there to be an agreed statement of facts'; and third, determination of the application required investigation of the circumstances in which the homestead was moved to Crown Reserve 10041 which could only be obtained from historical records held by various government departments. I do not accept any of these contentions.
As the authorities make plain, complex questions of law can be determined summarily. The fact that it was necessary for the Warden to refer to numerous authorities does not, of itself, mean the application should not have been granted. This is consistent with the approach adopted by the appellant at the hearing before the Warden.
In relation to the second matter, in this case, the question as to the proper construction of the Act did not proceed in the absence of relevant factual evidence. At the hearing before the Warden, the appellant conceded it did not have a lawful title to Crown Reserve 10041 but submitted that its occupation was with the knowledge and permission of the lawful owner.[113] This submission is consistent with the evidence before the Warden. This occupation did not, however, bring the appellant within the protection afforded by s 20 of the Act.
[113] ts (22 March 2018) 68.
Finally, the question as to whether the appellant had 'lawful title' in Crown Reserve 10041 was capable of determination from publicly available records or matters that were within the appellant's knowledge. Historical records of the Department and other government bodies will not assist the determination of this factual question. While I accept these records may explain the circumstances as to how and why the homestead was moved to Crown Reserve 10041 and the assumptions that were made by various parties at that time, ultimately, these matters are not relevant to the determination of whether the appellant has a 'lawful title granted by or derived from' the State or the Shire in Crown Reserve 10041. The factual question on the application is whether, on the transfer of the pastoral lease to the appellant in 1991, any lawful title to the homestead on Crown Reserve 10041 was granted to the appellant. This is a factual matter which the appellant should be able to address from its own records or from publicly available information.
In this case, given the conclusion I have reached as to the proper construction of the Act, I do not consider the Warden erred in determining the application summarily. That said, had the Warden decided not to grant summary judgment, I also would not have considered this to have been an error. While this matter is one which was capable, in my view, of being determined on legal argument by the parties, it would have been open to the Warden to form the view that the extent and complexity of the matters of law that required determination should be resolved at a final hearing. However, having heard full argument on the substance of the matter, it was open to the Warden to determine the matter summarily. Similarly, with these arguments having being raised on appeal with the benefit of detailed written and oral submissions, it is my view that on a proper construction of the Act, the appellant has no defence to the claim for partial summary judgment and the respondents are entitled to partial summary judgment.
In my view, the appellant has not established any error in the Warden's approach to the relevant principles of summary judgment or their application in the matter before him. I do not consider there is any merit in either of these grounds of appeal. For these reasons, grounds 1 and 2 of the appeal should be dismissed.

Did the appellant discharge its evidentiary onus on an application for summary judgment and did the Warden err in his findings as to the appellant's occupancy of Crown Reserve 10041? (grounds 3, 4, 9, 10 and 11)

Each of these grounds of appeal challenges the Warden's findings in relation to the evidence regarding the appellant's occupation of Crown Reserve 10041.
Ground 3 contends the Warden erred in law in directing himself as to what may amount to no evidence and erred in fact in finding the appellant produced no evidence of the Crown's authorisation for the Pinjin homestead to be relocated to Crown Reserve 10041. Ground 4 claims the Warden erred in law and fact in finding that the appellant, without lawful title or permission granted by or derived from the Crown, occupied or possessed Crown Reserve 10041 and other Crown reserves. Ground 9 challenges the Warden's failure to draw an inference from the letter from the Under Secretary for Lands dated 7 May 1975 that the appellant had a licence to occupy or otherwise a lawful interest in Crown Reserve 10041. Ground 10 contends the Warden erred in fact in finding the executive government acquiesced in the appellant's continued occupation and improvements on Crown Reserve 10041. Finally, ground 11 contends the Warden erred in law and fact in finding the appellant was not a lawful occupier of Crown Reserve 10041 pursuant to s 20(5) of the Act.

Parties' submissions

The appellant submits that evidence of its authorisation to occupy Crown Reserve 10041 was produced at the hearing before the Warden which established the Pastoral Lands Board (and before that, the Under Secretary for Lands) gave directions to undertake improvements on Crown Reserve 10041 from 1975 or at least 2015. Specifically, the appellant relied on correspondence between the pastoral lease holder and the Under Secretary for Lands dated 7 May 1975, a development plan of 1975 in which proposed improvements upon Crown Reserve 10041 and other Reserves were delineated, as well as correspondence from the Pastoral Lands Board dated 18 February 2015. In the event this evidence was not considered sufficient to discharge any evidentiary onus, the appellant emphasised the historical nature of the relocation of the homestead and repeated its submissions on grounds 1 and 2 that the Warden should have afforded the appellant the opportunity to adduce further evidence in relation to this issue.
At the hearing before me, counsel for the appellant addressed the nature of the interest the appellant has in the Crown land in question. Counsel submitted that, in so far as the legislation is concerned, they are in 'actual occupation', not unlawfully nor with the acquiescence of the State, but at the direction of the State and have been so since 1975.[114]
[114] ts 12.
Counsel for the appellant submitted that, due to the 'haste' in which the matter was summarily decided, the real position in relation to the appellant's occupation of the Crown reserve was still unknown. This was because the appellant had not been able to subpoena all the relevant records or information.[115] Counsel for the appellant conceded there was no evidence before the Warden that the appellant had paid rent or made any other payments to the Crown in relation to the use of the Crown reserve but reiterated that it may be possible to adduce this evidence by subpoenaing records from various government departments.[116] In the appellant's submission, because of the nature of the issues raised by the respondents, the appellant required discovery or production of documents or subpoenas in order to demonstrate that summary determination was not appropriate.[117]
[115] ts 11 - 12.
[116] ts 12.
[117] ts 15 - 16.
The appellant contended the Warden failed to take into account s 3 of the LAA which provides that an interest, in relation to Crown land, does not include the care, control and management of a reserve. The appellant submitted that the prohibition in s 18 of LAA did not extend to care, control and management of the Crown reserve and that the Shire had power to grant permission or a licence to the appellant to occupy the Crown reserve.
The respondents submitted that [30] and [32] of the Warden's decision are statements about the absence of evidence of authorisation as opposed to findings of fact. On this basis, counsel for the respondents contended grounds 3 and 4 must fail.
In any event, the respondents contended these statements were irrelevant to the ultimate decision. This was because authorisation of the relocation of the homestead was a separate and distinct issue to that of whether the appellant had lawful title to Crown Reserve 10041 granted or derived from the owner of the land. Counsel for the respondents emphasised that the Warden found the correspondence from the Under Secretary for Lands did not amount to a grant of a lease in respect of the Crown reserve, which was consistent with the concession by the appellant at the hearing that it had no lawful title over the areas of the Crown reserves.[118]
[118] Respondents' submissions [70] - [71].
Similarly, in relation to grounds 9, 10, and 11, the respondent submits that the documents on which the appellant relies do not support an inference being drawn that the appellant had been granted a lawful interest in Crown Reserve 10041 in compliance with s 32 of the Land Act 1933 or subsequently, s 18 and s 46 of the LAA. In their submission, the documents, at best, could be treated as permission to use Crown Reserve 10041. This did not create a lawful interest in the reserve.

Disposition

These grounds of appeal are inextricably linked to the proper construction of the Act. As indicated above at [128], if it was sufficient for the purposes of s 20(5) for the appellant to occupy the land without objection from the State or the Shire, the application for partial summary judgment would need to have been dismissed. This is because while the respondents may have tendered evidence that the appellant did not have a lawful title which gave them a right to occupy the land, the appellant discharged any evidentiary onus on them to adduce evidence that their occupation of the land was known by the State and approved by the Shire who had the responsibility for the care and management of the common reserve.
However, as set out above, in my view, this is not the proper construction of s 20(5). I consider that the appellant could only have a lawful interest in the land in three circumstances: first, where the appellant had a lease of Crown Reserve 10041, which interest was registered; second, the appellant had a sub‑lease, licence or sub‑licence of Crown Reserve 10041 which had the prior written approval of the Minister; or third, the Minister conferred on a management body the power to grant a lease or licence and that management body had granted the appellant a lease or licence in Crown Reserve 10041.
The factual question of whether the appellant has a lawful interest or 'lawful title' in Crown Reserve 10041 depends on whether the title showed the appellant had a registered interest, alternatively whether the appellant had a sub‑lease, licence or sub‑licence which received prior written approval from the Minister, or alternatively what specific rights were conferred on the Shire and whether the Shire granted the appellant any interest in the Crown Reserve 10041.
In relation to the first of these options, the respondents adduced evidence before the Warden of title searches in respect of Crown Reserve 10041. It was apparent from these searches that the appellant did not have a registered interest in relation to Crown Reserve 10041.[119]
[119] Primary reasons [184].
The second option contains information that is within the possession of the appellant. The appellant should know whether it has a sub‑lease, licence or sub‑licence of Crown Reserve 10041 and whether prior written approval for any transfer was received from the Minister. No evidence was adduced by the appellant of any prior written approval having been obtained.
In relation to the third option, the vesting order vested in the Shire the obligation to care, control and manage Crown Reserve 10041.[120] It did not include the power to lease or grant licences. For this reason, while I accept that the Minister for Lands granted to the Shire a bundle of rights in relation to this Crown reserve, the bundle did not include the right to lease or licence the land or any portion of it to the appellant. On this basis, any correspondence between the Shire and the appellant in respect of Crown Reserve 10041 is not relevant to the determination of whether the appellant has a 'lawful title granted by or derived from the owner of the land'.
[120] Exhibit 3, 'TIM-8', pg 192.
On the evidence before the Warden, it was apparent that the State and the Shire were aware of the appellant's occupation of Crown Reserve 10041. On this basis, it was open to the Warden to find the executive government acquiesced in this. However, in my view, unless there was evidence that the authorisation of the relocation of the homestead constituted a licence to occupy Crown Reserve 100141 and that this licence was transferred to the appellant with the prior written approval of the Minister, this evidence will not be relevant to the application. The factual question before the Warden was not why the Pinjin homestead was relocated but whether, when the pastoral lease was transferred to the appellant in 1991, this included the transfer of any lawful interest in Crown Reserve 10041 or whether subsequently, any lawful interest was granted. There was no evidence before the Warden of either of these matters.
For these reasons, there is no merit in these grounds of appeal and they ought be dismissed.

Did the Warden give adequate reasons (ground 6) and afford the appellant procedural fairness? (ground 13)

The appellant contends the Warden failed to give adequate reasons for his determination that the word 'includes' did not extend the meaning of s 8 of the Act beyond 'actual occupation under any lawful title granted by or derived from the owner of the land' (ground 6). The appellant also contends that it was denied procedural fairness (ground 13).

Parties' submissions

The appellant advanced no written submissions in support of ground 6 of the appeal. At the hearing, counsel for the appellant submitted that the Warden did not address in his reasons the basis upon which he rejected the argument that 'includes' was used deliberately in the definition of 'occupier' and that it did not equate to 'means'.[121]
[121] ts 18.
In relation to ground 13, the appellant contends the Warden reached adverse findings of fact in relation to its authorisation to be on Crown Reserve 10041 and denied the appellant a reasonable opportunity to respond to the interlocutory application.
The appellant also submits that the prospects of adverse findings of fact were not made apparent to the appellant throughout the course of the proceedings. Given the importance of these matters to the Warden's ultimate determination, the appellant says the likelihood of these findings of fact should have been disclosed to the appellant at the hearing, or, at the least, prior to determination. Had this occurred, the appellant says it would have had the opportunity to respond to these issues and adduce further evidence.
The respondents submitted there was no merit in ground 6 of the appeal and contended the Warden gave fulsome reasons for his decision. In this regard, the respondents emphasised the detail contained in the Warden's 48 page reasons for decision which set out the legislative history of the relevant sections of the Act, considered the text, context and purpose of these provisions and the reasons for his conclusion.
The respondents also denied the appellant was not afforded procedural fairness by the Warden. They submitted that each of the matters relied upon by the appellant were matters on which the appellant was on notice that findings could be made and were central to the issue for determination – namely, the legal basis for the appellant's physical presence on Crown Reserve 10041. The respondents emphasised that these matters were the subject of both written and oral submissions at the hearing before the Warden and that the appellant was given the opportunity to file additional written submissions which also addressed these matters.
The respondents also contended there was no evidence as to how the appellants could have adduced further evidence or what evidence could have been adduced which would have altered the result.[122]

Disposition

[122] Respondents' submissions [96].

The principles which govern the assessment of whether adequate reasons have been given by the primary court were summarised by the Court of Appeal in Browne v Browne in the following terms:[123]
The principles relevant to an evaluation of the adequacy of reasons are well established and include the following:
(1)Reasons for decision need not be lengthy or elaborate.
(2)Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.
(3)It is certainly not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails. Considering that party's submissions is an aspect of what procedural fairness requires.
(4)In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's consideration. (citations omitted)
[123] Browne v Browne [2019] WASCA 1 [80].
At [114] - [135] of the Primary Reasons, the Warden sets out eight reasons for his conclusion that the word 'occupier', when used in s 20(5) of the Act, was exhaustive. These reasons address the text, context and purpose of the Act which led the Warden to the conclusion he reached. In my view, there is no merit to ground 6.
In relation to ground 13, the general requirement of procedural fairness is that no order should be made which is adverse to a party's interests without the party first having had the opportunity to be heard.[124] On this basis, it is clear that the Warden was obliged to afford the appellant procedural fairness. The issue raised by the appellant in this case is the content of the requirement of procedural fairness and whether the Warden was obliged to give notice to the appellant of the findings he was proposing to make.
[124] International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 261 ALR 220 [39] (French CJ).
As was noted by the Court of Appeal in Defendi v Szigligeti:[125]
Although sometimes expressed in terms referring to a necessity for a hearing, the fundamental requirement of procedural fairness is (relevantly for present purposes) that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions.
The requirements of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances. The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court, and the legislation and rules which govern them. (citations omitted)
[125]Defendi v Szigligeti [2019] WASCA 115 [47] - [48].

In this case, on the filing of the application for partial summary judgment, directions were made for the filing of evidence and submissions. The appellant was afforded an opportunity to adduce evidence at the hearing, which it took up, and was represented by senior counsel at the hearing. Detailed written submissions were filed prior to the hearing in support of the position the appellant contended. At the hearing, no complaint was made by the appellant that it should be afforded the opportunity to file further evidence. Its request to file further written submissions on the matters which had been raised recently by the respondents was acceded to by the Warden.
The basis for the application for partial summary judgment was the proper construction of s 20(5) of the Act and whether the appellant had a lawful interest in Crown Reserve 10041. In these circumstances, I do not consider that procedural fairness required the Warden to give notice that he intended to make a factual finding that the appellant was not authorised to occupy this reserve. Answering this question was a necessary element of the application before him. In these circumstances, I do not consider there is any merit in the suggestion that the appellant was denied procedural fairness.
I am also not satisfied that there has been any practical injustice in this case as the appellant has not shown that it lost the opportunity to put any evidence or argument before the Warden.
In any event, a departure from the rules of natural justice will not always result in an upholding of the appeal and the setting aside of the order under review. After hearing the submissions the parties wish to make and considering what further evidence, if any, the party seeks to adduce, an appeal court may be satisfied that these matters would not produce a different outcome.[126]
[126] Smith v McCusker QC [2010] WASCA 55 [59] (Pullin JA).
In this case, given the conclusion I have reached on the other grounds of appeal, a rehearing of the application would not result in a different outcome. Accordingly, no purpose would be served by allowing the appeal, setting aside the order and directing a rehearing. A rehearing is not necessary if there is no possibility of a different outcome.
For this additional reason, ground 13 of the appeal should not be upheld.

Conclusion

For the reasons set out above, the decision of the Warden to grant partial summary judgment should be confirmed and the appeal dismissed.

Final observation

While it is clear, from the reasons set out above, that I do not consider there is any legal merit to the arguments of the appellant, I accept that for the appellant, as well as many observers, the result of this appeal is deeply unsatisfactory.
The eviction of the employees and directors of an Aboriginal pastoral corporation from the homestead and living quarters which have been in the same position for more than 50 years could well be regarded as unfair. The evidence before the Warden was that the relocation occurred after discussions with the relevant government departments. No objection has been taken to their occupancy of the Crown reserve since that time. Nevertheless, the result of these events is that the occupants are left without security as to their continued occupancy.
In this case, the life of mine of the respondents' project is less than two years.[127] While I accept the respondents have made a financial offer to construct accommodation for the employees at an alternative agreed site,[128] any such offer cannot address the emotional connection these people may have to this land or to the buildings they occupy. For these people, the position that 'It's not a house. It's a home' may well be apt.[129]
[127] Affidavit of William Donald Lloyd sworn 25 October 2017 'WDL-10', p 12.
[128] Affidavit of William Donald Lloyd sworn 22 November 2017 'WDL-55'.
[129] The Castle (1997).
That said, the role of this court on the appeal is to consider the proper construction of the legislation that has been enacted by Parliament. It is the role of Parliament, and not the courts, to consider whether the result of this construction is what was intended and whether it represents the appropriate balance between those parties with an interest in the same land.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FD
Associate to the Honourable Justice Hill
31 MARCH 2022