Western Areas Exploration Pty Ltd v Streeter & Ors - [2011] HCATrans 330

[2011] HCATrans 330

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P4 of 2011

B e t w e e n -
WESTERN AREAS EXPLORATION PTY LTD
Applicant
and
TERRENCE ERNEST JAMES STREETER
First Respondent
DAVID CHARLES COOPER
Second Respondent
JUNGLE CREEK GOLD MINES PTY LTD
Third Respondent
Application for special leave to appeal

HAYNE J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 9 DECEMBER 2011, AT 9.31 AM

MR M.L. BENNETT: May it please, your Honours, I appear on behalf of the applicant. (instructed by Bennett & Co.)

MR C.L. ZELESTIS, QC: May it please, your Honour, with my learned friend, MR T.M. RETALLACK, I appear for the respondents. (instructed by Maxim Litigation Consultants)

HAYNE J: Yes, Mr Bennett.

MR BENNETT: Your Honours know that the application raises two discrete separate points - whether there should have been a finding consonant with the reasons for decision of the dissenting judgment of Justice Murphy in the Court of Appeal that there was a breach of fiduciary duty by the respondents and the second is the issue of laches in which the majority judgments of her Honour the learned President and Appeal Justice Pullin concurred with Justice Murphy.

Your Honours will have seen that the central answer to the point we raise that Appeal Justice Murphy’s analysis of the existence of a breach of fiduciary duty is to be preferred to the reasons of the majority, given by her Honour the learned President, lies in a contention that there was no separate case advanced at trial for the conflict to arise from the sale of the 70 per cent interest in a collection of tenements called the Cue tenements; Cue being a remote goldfields location in the State of Western Australia. Can I say to your Honours ‑ ‑ ‑

HAYNE J: Assume that that point were to be decided in your favour, what do you do about laches? You have all three members of the Court of Appeal against you on that issue. Do you not have to get over that to achieve any success?

MR BENNETT: Yes, we do and that involves the Court ‑ ‑ ‑

HAYNE J: Why are they wrong on the question of laches then becomes the ‑ ‑ ‑

MR BENNETT: It involves a reconsideration of what their Honours in Fysh v Page talked of the elements of the equity. Correctly analysed, we would say that guidances can be obtained from Justice Owen’s decision in Bell v Westpac that the doctrinal basis of laches must rest on one of two pillars - either acquiescence or reliance to the detriment of the person who claims the benefit of laches.

KIEFEL J: But the finding here was of acquiescence.

MR BENNETT: The finding was an inference of acquiescence through the passage of time attributing to the corporate entity the delay principally of one of its directors and one…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] HCATrans 330
Decision Date

CaseChat Overview and Summary

Western Areas Exploration Pty Ltd (Western Areas) sought to restrain Streeter & Ors (the respondents) from trespassing on land in Western Australia. Western Areas claimed it held exclusive rights to explore for minerals on the land under a mineral exploration licence granted by the Minister for Mines. The respondents, however, asserted a right to enter the land for the purpose of prospecting for gold, relying on the provisions of the *Mining Act 1978* (WA) and a miner's right issued under that Act. The dispute ultimately came before the High Court of Australia.

The central legal issue before the High Court was whether the rights conferred by a miner's right under the *Mining Act 1978* (WA) to enter and prospect for gold on Crown land were subordinate to the exclusive rights granted to Western Areas under its mineral exploration licence. Specifically, the court had to determine the scope and priority of these competing statutory rights.

The High Court held that the *Mining Act 1978* (WA) conferred upon the holder of a miner's right a statutory right to enter Crown land and prospect for gold, and that this right was not extinguished or made subject to the rights of a mineral exploration licensee. The court reasoned that the Act created a scheme where both exploration licences and miner's rights co-existed, with the latter granting a fundamental right to prospect for gold that was not abrogated by the former. The court emphasised that the statutory language did not indicate an intention to subordinate the rights of a miner's right holder to those of an exploration licensee, and that the respondents were therefore entitled to enter the land.

Orders