Tisala Pty Ltd v Hawthorn Resources Ltd

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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

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Details
Case
[2022] WASC 109
Decision Date

CaseChat Overview and Summary

Tisala Pty Ltd brought an action against Hawthorn Resources Ltd, contesting the latter's mining activities on Crown land, which Tisala claimed was in violation of statutory provisions. The Supreme Court of Western Australia was tasked with interpreting and applying relevant statutory provisions to determine whether Hawthorn's activities were lawful. The primary legal issue before the court was the proper construction and interpretation of the statutory provisions governing mining activities on Crown land within Western Australia. The court had to decide whether the statutory language restricted mining activities on certain types of Crown land without explicit consent from the land's occupier.

The court approached the matter by considering the legislative intent behind the statutory provisions and the language used within them. The court emphasised that the interpretation of statutory provisions should lead to a single, correct answer, and it was not necessary for the appellant to demonstrate specific errors in the primary court's interpretation. The court also highlighted that it was not required to evaluate the merits of criticisms or alleged errors in the primary court's interpretation. In determining the correct interpretation, the court looked at the overall legislative framework and the specific provisions of the statute. The court concluded that the statutory provisions did not absolutely prohibit mining activities on all types of Crown land but imposed certain restrictions and required consent under specific circumstances.

The court's reasoning led to the conclusion that Hawthorn's mining activities were not in violation of the statutory provisions, as they had obtained the necessary consents and complied with the conditions specified in the Act. The court upheld the decision of the primary court, dismissing Tisala's claims. The court did not make any specific orders but affirmed the legality of Hawthorn's mining activities on the Crown land in question.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.