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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- Case
- [2022] WASC 109
- Decision Date
CaseChat Overview and Summary
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.