Wyloo Metals Pty Ltd v Quarry Park Pty Ltd - [2024] WASCA 38

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WYLOO METALS PTY LTD -v- QUARRY PARK PTY LTD [2024] WASCA 38
CORAM:   BUSS P
MITCHELL JA
LIVESEY AJA

HEARD:   5 & 6 OCTOBER 2022 & 28 MARCH 2023
DELIVERED          :   17 APRIL 2024
FILE NO/S:   CACV 105 of 2021
BETWEEN:   WYLOO METALS PTY LTD
Appellant
AND
QUARRY PARK PTY LTD
First Respondent
MICHELLE ANNE BAKER, AS MINING REGISTRAR AT KARRATHA
Second Respondent
THE MINISTER FOR MINES AND PETROLEUM
Third Respondent
CAULDRON ENERGY LIMITED
Fourth Respondent
ONSLOW RESOURCES LTD
Fifth Respondent
REGENT POINT PTY LTD
Sixth Respondent
ANTHONY WARREN SLATER
Seventh Respondent
AMANDA GRACE, AS DELEGATE OF THE MINISTER FOR MINES AND PETROLEUM PURSUANT TO SECTION 12 OF THE MINING ACT 1978 (WA)
Eighth Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   TOTTLE J
Citation: WYLOO METALS PTY LTD v QUARRY PARK PTY LTD [2021] WASC 356
File Number            :   CIV 1315 of 2021

Catchwords:

Mining - Mining leases - Failure to comply with requirement that application for mining lease be accompanied by mineralisation report - Grant of mining lease made without jurisdiction - Grant of mining lease invalid - Original putative grantee registered as the holder of the mining lease - Original putative grantee agreed to sell and third party agreed to purchase the mining lease - Whether the third party purchaser of the mining lease protected by the second clause of s 116(2) of the Mining Act 1978 (WA) - Nature of the protection afforded by the second clause of s 116(2) - Whether the protection afforded by the second clause of s 116(2) extends to a third party purchaser before the third party purchaser is registered as the holder of the mining lease - Whether lapse of time between the invalid grant of the mining lease and the commencement by the plaintiff of the primary proceedings for impugning the grant a sufficient basis for exercising the judicial discretion to refuse declaratory relief

Legislation:

Goldfields Act 1895 (WA) (repealed)
Mining Act 1904 (WA) (repealed)
Mining Act 1978 (WA)
Mining Amendment Act 1985 (WA)
Mining Amendment Act 1996 (WA)
Mining Regulations 1981 (WA)
Transfer of Land Act 1893 (WA)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	Mr A J Myers KC (on 28 March 2023), Mr A J Papamatheos & Ms C McKay (on 5 & 6 October 2022 & 28 March 2023)
First Respondent	:	Mr S Penglis SC & Mr M T McKenna
Second Respondent	:	No appearance
Third Respondent	:	Mr C S Bydder & Mr A Shuy
Fourth Respondent	:	Mr D R Chandler
Fifth Respondent	:	Mr S Penglis SC & Mr M T McKenna
Sixth Respondent	:	Mr S Penglis SC & Mr M T McKenna
Seventh Respondent	:	Mr S Penglis SC & Mr M T McKenna
Eighth Respondent	:	No appearance

Solicitors:

Appellant	:	Clayton Utz (Sydney)
First Respondent	:	Gilbert + Tobin
Second Respondent	:	State Solicitor's Office
Third Respondent	:	State Solicitor's Office
Fourth Respondent	:	Lawton Macmaster Legal
Fifth Respondent	:	Gilbert + Tobin
Sixth Respondent	:	Gilbert + Tobin
Seventh Respondent	:	Gilbert + Tobin
Eighth Respondent	:	State Solicitor's Office

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

Abigail v Lapin [1934] AC 491
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247
Atkins v Minister for Mines (1996) 15 WAR 226
Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493
Betella v O'Leary [2001] WASCA 266
Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95
Breskvar v Wall [1971] HCA 70; (1971) 126 CLR 376
Brown v Brook [1971] HCA 30; (1971) 125 CLR 275
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211; (2014) 48 WAR 300
Conlan v Registrar of Titles [2001] WASC 201; (2001) 24 WAR 299
Courtenay v Austin (1961) 78 WN (NSW) 1082
Cowell v Stacey (1887) 13 VLR 80
Crocker Consolidated Pty Ltd v Wille [1988] WAR 187
Crout v Beissel [1909] VLR 207
Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520
Dearle v Hall (1828) 3 Russ 1; 38 ER 475
Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104
Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26; (2021) 274 CLR 177
Duperouzel v Cameron [1973] WAR 181
ENT19 v Minister for Home Affairs [2023] HCA 18; (2023) 97 ALJR 509
Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Federal Commissioner of Taxation v Apted [2021] FCAFC 45; (2021) 284 FCR 93
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Finesky Holdings Pty Ltd v Minister for Transport (WA) [2002] WASCA 206; (2002) 26 WAR 368
Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510
Frazer v Walker [1967] AC 569
Gibbs v Messer [1891] AC 248
Great Hannans Aurora GM Co v Barnes (1898) 1 WALR 1
Heid v Reliance Finance Corp Pty Ltd (1983) 154 CLR 326
Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234
IAC (Finance) Pty Ltd v Courtenay [1963] HCA 64; (1963) 110 CLR 550
Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; (2003) 145 FCR 1
Jonray (Sydney) Pty Ltd v Partridge Bros Pty Ltd [1969] 1 NSWR 621
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
King v Smail [1958] VR 273
Klewer v Attorney General (NSW) [2010] NSWCA 219
Lapin v Abigail [1930] HCA 6; (1930) 44 CLR 166
Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265
Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406
Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407
McDermott v The Registrar of Mines (1905) 7 WALR 270
Meadow Springs Fairway Resort Ltd (in liq) v Balanced Securities Ltd (No 2) [2008] FCA 471; (2008) 245 ALR 726
Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214
Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Moffett v Dillon [1999] VSCA 32; [1999] 2 VR 480
Mondelez Australia Pty Ltd v The Australian Manufacturing Workers Union (AMWU) [2020] HCA 29; (2020) 271 CLR 495
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506
Nicholas v The State of Western Australia [1972] WAR 168
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2; (2021) 272 CLR 33
Onslow Resources Ltd v Johnston [2020] WASC 310
Onslow Resources Ltd v Johnston [2021] WASCA 151
Performance Capital Mortgage Pty Ltd v Motive Finance & Leasing Pty Ltd [2010] NSWSC 429
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Rice v Rice (1853) 2 Drewry 73; 61 ER 646
Solicitor‑General v Mere Tini (1899) 17 NZLR 773
Sorna Pty Ltd v Flint [2000] WASCA 22; (2000) 21 WAR 563
Stern v McArthur [1988] HCA 51; (1988) 165 CLR 489
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Taddeo v Catalano (1975) 11 SASR 492
Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; (2003) 217 CLR 315
TEC Desert Pty Ltd v Commissioner of State Taxation (WA) [2010] HCA 49; (2010) 241 CLR 576
Telstra Corporation Ltd v Treloar [2000] FCA 1170; (2000) 102 FCR 595
Templeton v The Leviathan Pty Ltd [1921] HCA 55; (1921) 30 CLR 34
The Baker's Creek Consolidated Gold Mining Co v Hack (1894) 15 NSWLR (Eq) 207
The State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118
The State of Western Australia v Stocker [2022] WASCA 178
The State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
Transport Accident Commission v Treloar [1992] 1 VR 447
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
Walker v The State of Western Australia [2002] FCA 869; (2002) 191 ALR 654
Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817; (2000) 105 FCR 39
Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2021] WASC 30
Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134

Contents

BUSS P & LIVESEY AJA

Overview of the primary proceedings

The outcome of the appeal

Relevant provisions of the 1978 Act referred to by the primary judge

The primary judge's findings of fact in relation to the grant of the Mining Lease

The primary judge's reasons in relation to the validity of the grant of the Mining Lease

The primary judge's reasons in relation to whether s 116(2) of the 1978 Act applied to the Sale and Purchase Agreement

The primary judge's reasons in relation to whether Wyloo's claim for declaratory relief was statute barred

The primary judge's reasons in relation to whether there were any other reasons for refusing to grant Wyloo declaratory relief

The primary judge's conclusion in relation to Wyloo's action

The primary judge's orders in relation to Wyloo's action

Wyloo's grounds of appeal

Wyloo's orders wanted in the appeal

The interlocutory injunction made in the appeal

Wyloo's submissions in the appeal

The Minister's submissions in the appeal

Cauldron's submissions in the appeal

Quarry Park, Onslow, Regent and Mr Slater's submissions in the appeal

The organisation of the balance of these reasons

The first issue: the relevant principles of construction

The first issue: s 12 of the Goldfields Act 1895 (WA)

The first issue: s 85 of the Mining Act 1904 (WA)

The first issue: the distinction between a system of registration of title and a system of title by registration

The first issue: the legislative history of s 116(2) and related provisions of the 1978 Act

The first issue: the decision in Crocker Consolidated Pty Ltd v Wille

The first issue: the decision in Hunter Resources

The first issue: the decision in Atkins v Minister for Mines

The first issue: the decision in Forrest & Forrest

The first issue: s 116 as currently enacted and as enacted at all times that are material for the purposes of this appeal

The first issue: the proper construction of s 116(2) and the resolution of the first issue

The second issue: its resolution

The third issue: its resolution

The fourth issue: its resolution

The fifth issue: its resolution

The sixth issue: its resolution

The seventh issue: its resolution

The eighth issue: its resolution

Conclusion

MITCHELL JA

Summary

Background

Validity of the grant of the Mining Lease

Legal effect of valid and invalid grants and of registration

Section 116(2) of the 1978 Act

Statutory text

Application of the first clause in the present case

Application of the second clause to an invalidly granted tenement

Application of the second clause in the present case

Legislative history

The Goldfields Act 1895 (WA)

The Mining Act 1904 (WA)

The 1978 Act as enacted

Amendments to the 1978 Act

Conclusion as to the operation of s 116(2) of the 1978 Act

Section 18 of the 1978 Act

Exercise of discretion

Orders

BUSS P & LIVESEY AJA:

This appeal is concerned with the validity of the grant of mining lease M08/487 (the Mining Lease) and with the proper construction and application of s 116(2) of the Mining Act 1978 (WA) (the 1978 Act).

Overview of the primary proceedings

On 12 April 2013, the first defendant/first respondent (Quarry Park) was granted the Mining Lease over an area of land in the Pilbara region of Western Australia.
On 22 December 2020, Quarry Park, the fourth defendant/fourth respondent (Cauldron), the fifth defendant/fifth respondent (Onslow), the sixth defendant/sixth respondent (Regent) and the seventh defendant/seventh respondent (Mr Slater) executed a written agreement (the Sale and Purchase Agreement) pursuant to which Quarry Park agreed to sell and Cauldron agreed to purchase the Mining Lease and other mining tenements.
On 11 January 2021, the plaintiff/appellant (Wyloo) applied for prospecting licence P08/783 over the land the subject of the Mining Lease.
On 22 January 2021, Wyloo commenced proceedings in the General Division of the Supreme Court of Western Australia for declaratory relief to the effect that the grant of the Mining Lease was invalid and, consequently, the land the subject of the Mining Lease was open for mining.
On 27 January 2021, on the application of Wyloo, Tottle J (the primary judge) made an order for an interlocutory injunction as follows:
Until further order of the Court, an injunction is hereby granted pursuant to sections 16 and 25(9) of the Supreme Court Act 1935 (WA) restraining [Quarry Park and Cauldron], whether by themselves, their officers, servants, agents or otherwise, from executing or lodging, any transfer of [the Mining Lease].
On 11, 12 and 13 May 2021, the primary judge heard the primary proceedings.
On 22 October 2021, his Honour delivered judgment. His Honour held that:
(a)The grant of the Mining Lease was invalid.
(b)However, by entering into the Sale and Purchase Agreement, Cauldron dealt with Quarry Park and obtained the protection conferred by the second clause of s 116(2) of the 1978 Act.
(c)By the second clause of s 116(2), Cauldron was put in the same position it would have been in had the grant of the Mining Lease been valid.
(d)If Wyloo's claim for declaratory relief had not failed by reason of the operation of the second clause of s 116(2), Wyloo's claim would not have been statute barred and the lapse of time between the grant of the Mining Lease and the commencement of the primary proceedings would have been a reason for not exercising the discretion to grant declaratory relief.

The outcome of the appeal

We would dismiss the appeal. Our reasons are as follows.

Relevant provisions of the 1978 Act referred to by the primary judge

The primary judge referred to numerous provisions of the 1978 Act, as at 12 April 2013 (being the date of grant of the Mining Lease). The provisions of principal relevance, for the purposes of this appeal, are as follows.
Section 8(1) provides relevantly that, in the 1978 Act, unless the contrary intention appears:
dealing means a transfer or mortgage of a legal interest in a mining tenement;
mining tenement means a prospecting licence, exploration licence, retention licence, mining lease, general purpose lease or a miscellaneous licence granted or acquired under this Act or by virtue of the repealed Act; and includes the specified piece of land in respect of which the mining tenement is so granted or acquired;
repealed Act means the Mining Act 1904.
Section 18 provides, relevantly, that '[a]ll Crown land, not being Crown land that is the subject of a mining tenement, is open for mining and as such is land … which may be made the subject of an application for a mining tenement, subject to and in accordance with this Act'.
Division 3 of Part IV is headed 'Mining lease' and comprises s 70O to s 85B.
Section 70O(1) provides that in Division 3 of Part IV:
guidelines means guidelines approved by the Director General of Mines for the purposes of this Division;
mine closure plan means a document that ‑
(a)is in the form required by the guidelines; and
(b)contains information of the kind required by the guidelines about the decommissioning of each proposed mine, and the rehabilitation of the land, in respect of which a mining lease is sought or granted, as the case requires;
mining proposal means a document that ‑
(a)is in the form required by the guidelines; and
(b)contains information of the kind required by the guidelines about proposed mining operations in, on or under the land in respect of which a mining lease is sought or granted, as the case requires; and
(c)contains a mine closure plan;
relevant mining proposal, in relation to a mining lease, means ‑
(a)a mining proposal that accompanied the application for the mining lease under section 74(1)(ca); or
(b)a mining proposal for which there is approval as described in section 82A(2)(b);
significant mineralisation has the meaning given in subsection (2).
Section 70O(2) defines 'significant mineralisation' as follows:
For the purposes of this Division there is significant mineralisation in, on or under land to which an application for a mining lease relates if exploration results in respect of a deposit of minerals located in, on or under that land indicate that there is a reasonable prospect of minerals being obtained by mining operations.
Section 71 provides relevantly that, subject to the 1978 Act, the Minister may, on the application of any person, 'after receiving a recommendation of … the warden in accordance with section 75, grant to the person a lease to be known as a mining lease on such terms and conditions as the Minister considers reasonable'.
Section 74 is concerned with applications for mining leases. Section 74 provides, relevantly:
(1)An application for a mining lease ‑
(a)shall be in the prescribed form; and
(b)shall be accompanied by the amount of the prescribed rent for the first year of the term of the lease or portion thereof as prescribed; and
(c)shall be accompanied by the prescribed application fee; and
(ca)shall be accompanied by ‑
(i)a mining proposal; or
(ii)a statement in accordance with subsection (1a) and a mineralisation report prepared by a qualified person; or
(iii)a statement in accordance with subsection (1a) and a resource report;
and
(d)shall be lodged in the prescribed manner.
(1AA)Instead of accompanying an application for a mining lease under subsection (1)(ca), a mining proposal may be lodged within the prescribed time and in the prescribed manner and, if so lodged, is to be treated for the purposes of this Division as a mining proposal that accompanied the application for the mining lease under section 74(1)(ca).
(1a)The statement referred to in subsection (1)(ca)(ii) and (iii) shall set out information about the mining operations that are likely to be carried out in, on or under the land to which the application relates including information as to ‑
(a)when mining is likely to commence; and
(b)the most likely method of mining; and
(c)the location, and the area, of land that is likely to be required for the operation of plant, machinery and equipment and for other activities associated with those mining operations.
…
(7)In this section ‑
JORC Code means the Australasian Code for Reporting of Exploration Results, Mineral Resources and Ore Reserves prepared by the Joint Ore Reserves Committee of the Australasian Institute of Mining and Metallurgy, the Australian Institute of Geoscientists and the Minerals Council of Australia as in force from time to time;
likely means reasonably likely having regard to the information available to the applicant when the application is made;
mineralisation report means a report that sets out details of exploration results in respect of a deposit of minerals located in, on or under the land to which the application relates, including details of ‑
(a)the type of minerals located in, on or under that land; and
(b)the location, depth and extent of those minerals and the way in which that extent has been determined; and
(c)analytical results obtained from samples of those minerals;
qualified person means a person who ‑
(a)is a member of a prescribed body; and
(b)complies with any requirement of the regulations as to relevant qualifications or experience;
resource report means a report ‑
(a)that sets out details of the mineral resources located in, on or under the land to which the application relates; and
(b)that complies with the JORC Code; and
(c)that has been made to the Australian Securities Exchange Limited.

Section 74A requires a report on significant mineralisation for certain applications. Section 74A provides:
(1)If an application for a mining lease is accompanied by the documentation referred to in section 74(1)(ca)(ii), the Director, Geological Survey shall give the Minister a report as to whether or not there is significant mineralisation in, on or under the land to which the application relates.
(2)For the purposes of preparing the report, the Director, Geological Survey may request the applicant to provide further information in relation to matters dealt with in the mineralisation report.
(3)The report shall be based solely on information contained in the mineralisation report and any further information provided by the applicant in response to a request under subsection (2).
(4)The Director, Geological Survey shall give a copy of the report to the mining registrar and the warden.
(5)The Director General of Mines shall ensure that the report is made available for public inspection at reasonable times.
(6)The regulations may require a person to pay a fee specified in the regulations ‑
(a)for inspecting the report; or
(b)for obtaining a copy of the report or any part of it.
(7)In this section ‑
mineralisation report means the mineralisation report that accompanied the application.
Section 75 is concerned with the determination of applications for mining leases. Section 75 provides, relevantly:
(1)A person who wishes to object to the granting of an application for a mining lease shall lodge a notice of objection within the prescribed time and in the prescribed manner.
…
(4)Subject to subsection (4a), if a notice of objection ‑
(a)is lodged within the prescribed time; …
(b)…
and the notice of objection is not withdrawn, the warden shall hear the application for the mining lease on a day appointed by the warden and may give any person who has lodged such a notice of objection an opportunity to be heard.
(4a)If the application for the mining lease is accompanied by the documentation referred to in section 74(1)(ca)(ii), the warden shall not hear the application unless ‑
(a)the warden has received a copy of the section 74A report in relation to the application; and
(b)the section 74A report states that there is significant mineralisation in, on or under the land to which the application relates.
(5)The warden shall as soon as practicable after the hearing of the application forward to the Minister for the Minister's consideration ‑
(a)the notes of evidence; and
(b)any maps or other documents referred to in the notes of evidence; and
(c)a report which recommends the grant or refusal of the mining lease and sets out the reasons for that recommendation.
(6)On receipt of a report under subsection … (5), the Minister may … grant or refuse the mining lease as the Minister thinks fit, and irrespective of whether ‑
(a)the report recommends the grant or refusal of the mining lease; and
(b)the applicant has or has not complied in all respects with the provisions of this Act.
…
(8)In the case of an application for a mining lease that is accompanied by the documentation referred to in section 74(1)(ca)(ii), the Minister shall refuse to grant the mining lease if the section 74A report states that there is no significant mineralisation in, on or under the land to which the application relates.
…
(10)In this section ‑
section 74A report means the report given to the Minister under section 74A.
Part IVA is headed 'Registration of instruments and register' and comprises s 103A to s 103H. It contains provisions with respect to the registration of certain instruments concerning a mining tenement and the compilation and maintenance of a register.
Section 103C provides:
(1)This section applies to the following instruments -
(a)a dealing;
(b)a discharge of a mortgage of a legal interest in a mining tenement;
(c)a withdrawal of an application for a mining tenement;
(d)a surrender under section 26A, 65 or 95;
(e)a tax memorial;
(f)a withdrawal of memorial.
(2)An instrument to which this section applies is to be -
(a)lodged for registration in the prescribed manner and prescribed form; and
(b)accompanied by the fee (if any) prescribed in respect of the instrument.
(3)Only an instrument to which this section applies may be registered.
(4)The registration of an instrument is to be effected by an authorised officer.
…
(6)Neither the Minister nor an authorised officer is concerned with the effect any instrument lodged under this section may have at law other than for the purposes of this Act.
(7)The acceptance of an instrument for registration does not give to it any priority (other than in so far as registration may be taken to be constructive notice), force, effect or validity that it would not have had if this section had not been enacted.
(8)A dealing does not pass any legal estate or interest in a mining tenement or in any way charge or encumber a mining tenement until it is registered in accordance with this section.
Section 103E provides:
Dealings affecting the same mining tenement take priority according to the date and time of their registration.
Section 103F is concerned with the compilation and maintenance of a register and provides:
(1)The Director General of Mines is to cause a register to be compiled and maintained.
(2)The register is to contain such particulars, relating to mining tenements and applications for mining tenements, as are prescribed.
(3)The register may be compiled and maintained in such form as the Director General of Mines determines.
(4)A person may, on payment of the prescribed fee, obtain at the Department at Perth or at the office of the mining registrar -
(a)a copy of an entry in the register relating to any mining tenement or application for a mining tenement; and
(b)subject to such requirements, if any, as are prescribed, a copy of a dealing or other instrument recorded in the register.
Section 116(1) provides:
The holder of a mining tenement granted pursuant to this Act is entitled, on payment of the prescribed fee, to receive an instrument of licence or lease as the case may be in such form as may be prescribed.
Section 116(2) provides:
Except in the case of fraud, a mining tenement granted or renewed under this Act shall not be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the grant or renewal of that tenement and no person dealing with a registered holder of a mining tenement shall be required or in any way concerned to inquire into or ascertain the circumstances under which the registered holder or any previous holder was registered, or to see to the application of any purchase or consideration money, or be affected by notice, actual or constructive, of any unregistered trust or interest any rule of law or equity to the contrary notwithstanding, and the knowledge that any such unregistered trust or interest is in existence shall not of itself be imputed as fraud.
Section 116(3) provides that, in s 116(2), 'registered, in relation to a holder or previous holder of a mining tenement, means that the name of the holder or previous holder is or was entered in the register as the holder of the mining tenement'.
Section 119(1) provides that, subject to the 1978 Act, 'a mining tenement may be sold, encumbered, transmitted, seized and sold to satisfy a judgment, or otherwise disposed of'.
By s 119(2):
A legal or equitable interest in or affecting a mining tenement is not capable of being created, assigned, affected or dealt with, whether directly or indirectly, except by an instrument in writing signed by the person creating, assigning or otherwise dealing with the interest.

The primary judge's findings of fact in relation to the grant of the Mining Lease

The primary judge's findings of fact in relation to the grant of the Mining Lease, as recorded in his Honour's reasons, were as follows.
On 9 September 2011, Quarry Park applied for an exploration licence over land which included the land the subject of Quarry Park's later application for the Mining Lease [18].
The number of the exploration licence was E08/2329 [18].
On 16 November 2011, Quarry Park lodged with the Department of Mines and Petroleum (the Department) (later the Department of Mines, Industry Regulation and Safety) an application for a mining lease over approximately the land the subject of the Mining Lease [19].
The application lodged by Quarry Park on 16 November 2011 was accompanied by a letter from Quarry Park's director, Mr Slater, which read [19]:
Re Mineral Resource in support of Mining Lease application by Quarry Park Pty Ltd for ground applied for on 16th November 2011 on Ashburton River.
In accordance with sect 74(1)(ca)(ii), we provide our mineralisation report as follows:-
The Ashburton River is a source of river sand that is suitable for the manufacture of concrete in both sand and aggregate, it is a steeply banked and a controlled narrow channel flowing fast when in flood.
During the heavy rain seasons it has reached the high embankments but rarely overflows.
The deposit is laid down over a calcrete hardrock basement and the sand/shingle is deposited some 2 - 3 mts thick on the top of this calcrete.
The resource is highly suitable for the use in foundation works in fill material for the wheatstone LNG Project, where the ground conditions require a non plastic fill material due to the poor soil conditions and swampy location, this river sand will not only be suitable for this purpose but also for some trenching back fills to stabilise the piping works.
The sand is replenished when the river floods each year.
We have currently two nearby mining leases in [an] associated company which have been granted, sampling and testing for concrete has been conducted throughout these leases, the information in regards to the volume of resource has been consistent with a depth of 2.5 metres being the normal up to a maximum of 4 metres and an average width of 50 metres.
Research over the entire tenement has since been completed and the mining lease has been marked out for the purpose of mining these sands.
The Length of the application following the river is approx. 2 kms, if we use the principle of the length x width x depth we have a resource of:-
Length 2000 m
Width 50 m
Depth 2.5 m
Total 250,000 Bank Cubic Metres @ 1.5 t/m3 = 375,000 tonnes,
These above estimates are conservative in that the nearby other granted leases are proven to be in excess of 4 mts deep[.]
I have been involved in the Quarry and Mining industry since 1967 when my company was established and throughout my career I have been employed by many consulting engineering companies to find basic raw materials for road works including Main Roads Department.
I was the founder for the highly regarded base course material now marketed as 'Ferricrete' and used by Main Roads Department throughout the state of W.A.
I am qualified to make this statement and resource calculation in support of these applications.

Mr Slater was not at any material time a member of the Australasian Institute of Mining and Metallurgy or the Australian Institute of Geoscientists [20].
Nevertheless, Quarry Park asserted that Mr Slater's letter dated 16 November 2011 enlivened the Director, Geological Survey of Western Australia's jurisdiction under s 74A of the 1978 Act [20].
Quarry Park advertised its application for the Mining Lease. BHP Billiton Petroleum (Australia) Pty Ltd lodged an objection, but the objection was withdrawn by consent. There were no other objections to the application [21].
On 15 December 2011, a representative of the Director, Geological Survey of Western Australia sent an email to Mr Slater. The email referred to the requirement for a 'formal' mineralisation report and a 'Supporting Mining Statement'. It was apparent from the context that the reference to a 'Supporting Mining Statement' was to the requirement for a 'mining operations statement' within s 74(1a) of the 1978 Act [22].
On 4 January 2012, Quarry Park waived priority over that area of the land the subject of its application for an exploration licence that was also the subject of its later application for the Mining Lease [23].
On 26 July 2012, Quarry Park lodged with the Department a document that satisfied the requirements of a mining operations statement [24].
On 8 August 2012, Quarry Park lodged with the Department a mineralisation report [24].
On 17 August 2012, the Acting Executive Director, Geological Survey of Western Australia, confirmed that the mineralisation report satisfied the requirements of s 74(1)(ca)(ii) of the 1978 Act and that there was significant mineralisation involving sand and gravel or aggregate in, on or under the land the subject of Quarry Park's application for the Mining Lease [24].
On 20 August 2012, the Acting Mining Registrar for the Ashburton Mineral Field signed a document entitled 'Schedule of Compliance and Recommendation' for 'Application for Mining Lease No. 08/487'. In this document the Acting Mining Registrar ticked a box that contained the following statement addressed to the Minister for Mines and Petroleum (the Minister) [25]:
I am satisfied that the Applicant has complied in all respects with the provisions of the Act and this application is recommended for grant subject to the abovementioned endorsements/conditions numbered as per the list of eMiTs standard Endorsements/Conditions. (original emphasis)
On 8 April 2013, the State of Western Australia, the Minister, Quarry Park and the Burrabalayji Thalanyji Aboriginal Corporation executed a deed entitled 'Deed for Grant of Mining Tenement', pursuant to s 28(1)(f) and s 31(1)(b) of the Native Title Act 1993 (Cth), in respect of the Mining Lease and other mining tenements [26].
By letter dated 12 April 2013, the Director, Mineral Titles Division, informed Quarry Park that its application for the Mining Lease had been granted, subject to the endorsements and conditions set out in an attached schedule [27].
On 12 April 2013, the Mining Lease was entered into the register maintained by the Director General of Mines with the following details [27]:
(a)Identifier 'M 08/487';
(b)at 'Commence' the date '12/04/2013';
(c)at 'Granted' the date '12/04/2013'; and
(d)at 'Holder Notified' the date '12/04/2013'.
On 11 June 2013, exploration licence E08/2329 was granted to Quarry Park. The grant did not include the land the subject of the application for the exploration licence that had also included the land the subject of the application for the Mining Lease [28].

The primary judge's reasons in relation to the validity of the grant of the Mining Lease

Quarry Park submitted to the primary judge that the Mining Lease was validly granted. It argued that ultimately a mineralisation report and a mining operations statement were lodged with the Department. It also argued that there was a permissible distinction under the 1978 Act between failing to file a required document at all, on the one hand, and filing a required document that answered, in a general sense, the statutory criteria even though it was not wholly compliant. Quarry Park asserted that the letter dated 16 November 2011 answered the statutory criteria even though it was not wholly compliant.
His Honour rejected Quarry Park's submissions.
The primary judge held that the letter dated 16 November 2011 was not a mineralisation report because, relevantly, it was not prepared by a qualified person [30].
His Honour also held that the letter dated 16 November 2011 was not a mining operations statement. The letter did not purport to be a mining operations statement. It contained none of the information required by s 74(1a) and it did not answer the statutory criteria in any respect [30].
The primary judge added that, even if the letter dated 16 November 2011 could be regarded as 'not wholly compliant' with the statutory requirements, exact compliance with the statutory pre‑conditions was necessary. His Honour referred to Forrest & Forrest Pty Ltd v Wilson[1] and Onslow Resources Ltd v Johnston.[2]
[1] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [67], [70] ‑ [71] (Kiefel CJ, Bell, Gageler & Keane JJ).
[2] Onslow Resources Ltd v Johnston [2021] WASCA 151 [48] ‑ [50] (Quinlan CJ, Buss P and Beech JA).
His Honour concluded that:
(a)the Acting Mining Registrar's recommendation to the Minister that the application for the Mining Lease should be granted; and
(b)the Minister's grant of the Mining Lease,
were made without jurisdiction because essential pre‑conditions to the power to recommend and the power to grant were not satisfied [33].
Those essential pre‑conditions were the requirement that the application for the Mining Lease be accompanied by a mineralisation report and by a mining operations statement [33].
The grant of the Mining Lease was therefore invalid.

The primary judge's reasons in relation to whether s 116(2) of the 1978 Act applied to the Sale and Purchase Agreement

As we have mentioned, on 22 December 2020 Quarry Park and Cauldron executed the Sale and Purchase Agreement, pursuant to which Quarry Park agreed to sell and Cauldron agreed to purchase the Mining Lease and other mining tenements. See [3] above.
Also, as we have mentioned, on 11 January 2021 Wyloo applied for a prospecting licence over the land the subject of the Mining Lease. See [4] above.
The primary judge considered and resolved the following issues concerning the application of s 116(2) of the 1978 Act to the Sale and Purchase Agreement:
(a)First, what is the meaning of the term 'dealing with' in the context of that part of s 116(2) which states that 'no person dealing with a registered holder of a mining tenement shall be required or in any way concerned to inquire into or ascertain the circumstances under which the registered holder or any previous holder was registered'?
(b)Secondly, what is the scope of the protection afforded by s 116(2); in particular, does s 116(2) cure or validate the grant of a mining lease that was invalidly granted because of jurisdictional error?
As to the issue concerning the term 'dealing with' in s 116(2), his Honour said:
(a)Section 116(2) included the relevant part of that provision when the 1978 Act was enacted [61].
(b)The definition of 'dealing' in s 8(1) was inserted, in conjunction with the enactment of pt IVA, by the Mining Amendment Act 1996 (WA) [42]. The definition of 'dealing' was introduced to give effect to the establishment of the scheme embodied in pt IVA for the registration of a limited class of instruments, namely legal interests by way of transfer or mortgage in mining tenements. The definition was not introduced to alter the meaning of the term 'dealing with' in s 116(2) [64].
(c)The relevant part of s 116(2) 'is not confined to providing protection to those who take a transfer or mortgage of a legal interest in a mining tenement but extends to providing protection to those who have dealings with the registered holder of the mining tenement' [65].
(d)The term 'dealing with' in the relevant part of s 116(2) does not correspond with, and is not limited by, the definition of 'dealing' in s 8(1) [65].
As to the issue concerning the scope of the protection afforded by s 116(2), the primary judge observed that s 116(2) comprises two clauses.
His Honour noted that the first clause of s 116(2), which was inserted by the Mining Amendment Act 1985 (WA), reads:
Except in the case of fraud, a mining tenement granted or renewed under this Act shall not be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the grant or renewal of that tenement …

The primary judge also noted that the second clause of s 116(2), as enacted at the material time, reads:
Except in the case of fraud … no person dealing with a registered holder of a mining tenement shall be required or in any way concerned to inquire into or ascertain the circumstances under which the registered holder or any previous holder was registered, or to see to the application of any purchase or consideration money, or be affected by notice, actual or constructive, of any unregistered trust or interest any rule of law or equity to the contrary notwithstanding, and the knowledge that any such unregistered trust or interest is in existence shall not of itself be imputed as fraud.
His Honour referred in some detail to Forrest & Forrest and reproduced, at [83] of his reasons, this passage from the reasons of Kiefel CJ, Bell, Gageler and Keane JJ in Forrest & Forrest [76] ‑ [77]:
Section 116(2) was not cast in terms which were apt to confer indefeasibility of title in respect of any non‑compliance with the requirements of the Act. Unlike s 75(6)(b), s 116(2) did not speak of a want of 'compliance' with the provisions of the Act, but of 'informality or irregularity' in the application or proceedings. 'Informality' means a want of legal form as distinct from a want of legal substance. The term 'irregularity' refers to a lack of regularity in the method or manner in which a power is exercised (Davis's Tutor v Glasgow Victoria Hospitals 1950 SC 382 at 385; M'Ginty v Glasgow Victoria Hospitals 1951 SC 200 at 211): it is a term used in deliberate contrast to an act beyond power. The failure of the warden to observe the requirement of s 75(4a) cannot fairly be described as an 'informality or irregularity in the application or in the proceedings previous to the grant' of the mining lease.
The concern of the Court of Appeal that upsetting titles to mining leases might cause unintended hardship was misplaced. To the extent that the titles of the second and fourth respondents were liable to be set aside, it may be said that they were the authors of their own misfortune. And as to those who took a transfer of a mining lease from them, such transferees would be protected by the second clause of s 116(2). In Hunter Resources Ltd v Melville ((1988) 164 CLR 234 at 259), Toohey J, noting the differences between s 116(2) of the Act and the Torrens system statutes whereby the registered proprietor holds free of any unregistered interest other than those expressly excepted, went on to say:
'It should not be assumed … that registration of the original grant cures any defects in the application leading to the grant. But it is unnecessary to express a view on that matter. Clearly enough, a person dealing with the registered holder will, in the absence of fraud, obtain the protection of s 116.'
The primary judge did not accept Wyloo's submission that the observations of Kiefel CJ, Bell, Gageler and Keane JJ in Forrest & Forrest [76] ‑ [77] in relation to the second clause of s 116(2) should be understood 'as being directed to the protection of a title held by a transferee of a mining lease granted validly' [87]. His Honour said that those observations were made in the context of 'a discussion of a mining lease granted invalidly' and that context did not support 'the confined interpretation for which Wyloo contended' [87]. His Honour added that 'a person taking a transfer from a registered holder of a valid mining lease does not require the protection afforded by the second clause of s 116(2)' [87]. His Honour then set out his understanding of the observations of Kiefel CJ, Bell, Gageler and Keane JJ in Forrest & Forrest [76] ‑ [77] as follows [88]:
My understanding of the effect of what was said by the majority is that a person dealing with a registered holder of a mining tenement which had not been granted validly, or a person dealing with a successor in title of the original grantee of such a title, was taken to be in the position that person would have been in had the mining tenement been granted validly. This interpretation addresses the concern of the Court of Appeal (upsetting titles to mining leases would cause unintended hardship) to which the observations of the majority were directed.
His Honour said that the second clause of s 116(2) has two parts, namely [96]:
(a)The first part provides [except in the case of fraud] no person dealing with a registered holder of a mining tenement shall be required or in any way concerned to inquire into or ascertain the circumstances under which the registered holder or any previous holder was registered.
(b)The second part provides [except in the case of fraud no person dealing with a registered holder of a mining tenement shall] be affected by notice, actual or constructive, of any unregistered trust or interest any rule of law or equity to the contrary notwithstanding, and the knowledge that any such unregistered trust or interest is in existence shall not of itself be imputed as fraud.
The primary judge concluded that the effect of the second clause of s 116(2) is 'to put a person dealing with the registered holder of a mining tenement that [was] not … granted validly in the same position as if the title had been granted validly and to protect that person from claims founded on any contended invalidity of the tenement' [99].
His Honour said that, as held by Kiefel CJ, Bell, Gageler and Keane JJ in Forrest & Forrest [76] ‑ [77], protection under s 116(2) is available, notwithstanding non‑compliance with s 74(1)(ca)(ii), s 74A and s 75. Parliament 'prioritised the protection of persons under s 116(2) over any statutory policy in s 74(1)(ca)(ii), s 74A and s 75' [106].

The primary judge's reasons in relation to whether Wyloo's claim for declaratory relief was statute barred

The primary judge noted that, having regard to his Honour's conclusions in relation to the application of s 116(2) to the facts and circumstances of the case, it was unnecessary for his Honour to consider the limitation defence. However, his Honour said that he would deal with that defence in case his conclusions in relation to the application of s 116(2) were wrong [107].
Part 2 of the Limitation Act 2005 (WA) is headed 'Limitation periods' and comprises s 11 to s 29.
Section 13 provides:
(1)An action on any cause of action cannot be commenced if 6 years have elapsed since the cause of action accrued.
(2)Subsection (1) does not apply to an action if Division 3 provides for a different limitation period for that action.
In s 3(1) the term 'action' is defined as follows:
action means ‑
(a)any civil proceeding in a court, whether the claim that is the subject of the proceeding or relief sought is under a written law, at common law, in equity or otherwise; or
(b)an arbitration under an arbitration provision,
but does not include proceedings for certiorari, mandamus, prohibition, habeas corpus or quo warranto except in sections 28, 86 and 87, in which it includes proceedings for certiorari, mandamus, prohibition or quo warranto;
The term 'cause of action' is not defined in s 3(1) or elsewhere in the Limitation Act. However, s 3(2) provides:
In this Act a reference to the accrual of a cause of action is a reference ‑
(a)to the accrual of the cause of action to a person (person A) to whom the cause of action accrues; and
(b)where relevant, to the accrual of the cause of action to a person through whom person A claims.
Division 3 of Part 2 of the Limitation Act comprises s 14 to s 29.
Section 27 provides:
(1)An equitable action cannot be commenced after the only or later of such of the following events as are applicable ‑
(a)the elapse of 6 years since the cause of action accrued; or
(b)the elapse of 3 years since time started running, on equitable principles, for the commencement of the action.
(2)In this section ‑
equitable action means an action ‑
(a)in which the relief sought is in equity; and
(b)for which (had a limitation period not been provided for under subsection (1) or section 13) the limitation period would not be determined in equity by analogy to the limitation period for any other kind of action.
The third defendant/third respondent (the Minister), Quarry Park and Cauldron contended, based on s 13(1), further or alternatively on s 27(1)(a), of the Limitation Act, that Wyloo's claim for declaratory relief could not be maintained because when Wyloo commenced the primary proceedings six years had elapsed since the cause of action upon which Wyloo's claim was based had accrued. In particular, it was contended that the cause of action upon which the claim was based had accrued on 12 April 2013 (being the date on which the Mining Lease was granted) and Wyloo did not commence the primary proceedings until 22 January 2021.
Wyloo contended that its claim for declaratory relief was not governed by the Limitation Act. In particular, it was contended that s 13(1) of the Limitation Act applied to 'actions on any cause of action' and Wyloo's claim for declaratory relief was not an action on any cause of action to which the Limitation Act applied because a claimant for declaratory relief was not required to establish a cause of action.
Wyloo contended, in the alternative, that, even if a claim for declaratory relief is characterised as a cause of action, time does not begin to run until the jurisdictional prerequisites for the grant of declaratory relief have been satisfied. Wyloo argued that the jurisdictional prerequisites for the grant of the declaratory relief it claimed were not satisfied until January 2021 when it marked out prospecting licence P08/783 over the land the subject of the Mining Lease.
Various facts relevant to whether Wyloo's claim for declaratory relief was statute barred are:
(a)On 12 April 2013, Quarry Park was granted the Mining Lease.
(b)On 18 March 2015, Wyloo was incorporated.
(c)On 22 December 2020, Quarry Park and Cauldron executed the Sale and Purchase Agreement.
(d)On 11 January 2021, Wyloo applied for prospecting licence P08/783 over the land the subject of the Mining Lease.
(e)On 14 April 2021, Wyloo applied for miscellaneous licence L08/250, which overlapped land the subject of the Mining Lease.
(f)On 16 April 2021, Wyloo applied for prospecting licence P08/803 and prospecting licence P08/804. Application P08/804 was in respect of an area that was identical to the area the subject of the Mining Lease. Application P08/803 overlapped part of the land the subject of the Mining Lease.
His Honour said that the essential questions raised by the limitation defence were [126]:
(a)Is an action in which a plaintiff merely claims a declaration 'an action on a cause of action' within s 13(1) of the Limitation Act?
(b)If so, when does the cause of action for a mere declaration accrue within s 13(1)?
The primary judge concluded that an action claiming a declaration is 'an action on a cause of action' within s 13(1) of the Limitation Act. His Honour was of that opinion for two reasons, namely [137]:
(a)First, subject to the specified exceptions, a purpose of the Limitation Act is to provide a limitation period for all civil proceedings, including actions for mere declaratory relief. This purpose may be discerned from the following:
(i)the long title of the Limitation Act from which it is clear that the purpose of the Act is to provide time limits for commencing civil legal proceedings generally, that is, not subject to unexpressed exceptions;
(ii)the breadth of the definition of action ('any civil proceeding in a court');
(iii)the specificity with which the categories of action excluded from the definition of action are identified;
(iv)the limited number of those exclusions; and
(v)the inclusion of a 'general limitation period' in s 13 not referrable to any particular category of action or cause of action.
(b)Second, if 'cause of action' is construed broadly as 'the fact or combination of facts which gives rise to the right to sue', there is no reason in principle why this should not encompass the fact or combination of facts which give rise to the right to seek declaratory relief, or in other words 'a controversy of a justiciable nature'.
However, his Honour was of the opinion, in effect, that a cause of action for a mere declaration does not arise until 'a justiciable controversy comes into existence and … accrues to the person who has a real interest in raising it' [147].
The primary judge acknowledged that the approach that he considered must be adopted was open to the criticism that 'so long as there is a person who may have a real interest in raising a justiciable controversy over an administrative act, the objects of the limitation legislation may be defeated because there would never be a point in time when the act could be treated as beyond attack' [148]. However, his Honour responded to that criticism by stating that a declaratory judgment is a discretionary remedy, and 'a substantial [lapse] of time between the impugned act and the challenge to its validity may weigh decisively against the grant of relief even if the limitation period has not expired' [148].
His Honour concluded, for the following reasons, that Wyloo's action was not statute barred [149]:
[W]hen Wyloo made its application for a prospecting licence over the land covered by mining lease M08/487 in January 2021 it raised a real question concerning the validity of the mining lease and it had a real interest in that question. The question had not been raised before. There was a proper contradictor and the question was not abstract or hypothetical and the determination of the question had real and foreseeable consequences. Wyloo raised a justiciable controversy and acquired a cause of action for declaratory relief.

The primary judge's reasons in relation to whether there were any other reasons for refusing to grant Wyloo declaratory relief

The primary judge noted that, having regard to his Honour's conclusions in relation to the application of s 116(2) to the facts and circumstances of the case, it was unnecessary for his Honour to consider whether there were any other reasons for refusing to grant Wyloo declaratory relief. However, his Honour said that he would deal with that issue in case his conclusions in relation to the application of s 116(2) were wrong [150].
The Minister, Quarry Park and Cauldron contended that his Honour should refuse relief, in essence, for two reasons. First, the delay in challenging the validity of the Mining Lease. Secondly, the declarations sought would be inutile [151].
Various facts relevant to whether there were any other reasons for refusing to grant Wyloo declaratory relief are:
(a)On 9 September 2011, Quarry Park applied for exploration licence E08/2329 over land that included the land the subject of the Mining Lease. The area the subject of the application for exploration licence E08/2329 included part of pastoral lease N049514. The pastoral lease is known as Minderoo Station. At all material times, Forrest & Forrest Pty Ltd has been the lessee under the pastoral lease. Forrest & Forrest Pty Ltd objected to the grant of the application for exploration licence E08/2329. That part of the land the subject of the application for the Mining Lease was excised from the land the subject of the application for exploration licence E08/2329. Not all of the land that was the subject of the application for the Mining Lease was within the land the subject of the application for exploration licence E08/2329. That part of the land the subject of pastoral lease N049514 which overlapped the land the subject of the application for exploration licence E08/2329 was excised from the application for exploration licence E08/2329 and, consequently, Forrest & Forrest Pty Ltd withdrew its objection [153(a)].
(b)On 11 June 2013, E08/2329 was granted [exhibit 14].
(c)On 11 January 2021, Wyloo applied for prospecting licence P08/783 over the land the subject of the Mining Lease. The datum post for the application was on land that had been the subject of the application for exploration licence E08/2329 before that part of the land the subject of the application for the Mining Lease was excised from the land the subject of the application for exploration licence E08/2329 [153(b)].
(d)On 17 February 2021, Cauldron applied for prospecting licence P08/798 over land that included part of the land the subject of the Mining Lease [153(c)].
(e)On 14 April 2021, Wyloo applied for miscellaneous licence L08/250, which overlapped part of the land the subject of the Mining Lease [153(d)].
(f)On 16 April 2021, Wyloo applied for prospecting licence P08/803 and prospecting licence P08/804. Application P08/804 was in respect of an area that was identical to the area the subject of the Mining Lease. Application P08/803 overlapped part of the land the subject of the Mining Lease. The area the subject of application P08/803 was never the subject of the application for exploration licence E08/2329 [153(e)].
(g)On 13 August 2018, the term of exploration licence E08/2329 was extended for a period of five years [154].
(h)Since 12 April 2013, Quarry Park had incurred expenditure on the Mining Lease as follows [155]:
(i)$12,962.75 in rent;
(ii)$25,023.24 in rates to the Shire of Ashburton; and
(iii)$115,057.80 in royalties to the State.
(i)Since 12 April 2013, Quarry Park had incurred expenditure of about $2.5 million in respect of exploration and mining on the Mining Lease [156].
(j)Megan Daddow, a solicitor practising in Perth, gave evidence in a witness statement that was tendered at the hearing before the primary judge. His Honour accepted her evidence [157]. Ms Daddow said in effect that in April 2021, at the request of Wyloo's solicitors, she had undertaken a search of the Minedex database maintained by the Department in relation to the Mining Lease. Ms Daddow printed a copy of the results of her search. She then went to the offices of the Department where she inspected and took copies of all documents on the Department's file relating to Quarry Park's application. The documents included Mr Slater's letter dated 16 November 2011 and the mineralisation report which Quarry Park lodged with the Department on 8 August 2012 [157].
(k)Jess Oram, a director of Cauldron, gave evidence in a witness statement that was tendered at the hearing before the primary judge. Mr Oram was cross‑examined. His Honour said that Mr Oram gave truthful and reliable evidence which his Honour accepted. Mr Oram explained the steps he took to satisfy himself that Quarry Park held title to the Mining Lease and that the Mining Lease was in good standing. Mr Oram is an experienced geologist and an experienced mining exploration company executive. When considering the potential purchase by Cauldron of the Mining Lease, Mr Oram relied on the publicly available information recorded in the online mining tenement register maintained by the Department in determining whether the Mining Lease was in good standing. By 'good standing', Mr Oram meant that the Mining Lease was 'live'; the expenditure conditions were met (alternatively, an exemption had been granted); there were no unresolved objections, applications for forfeiture or applications for extension of the term that would represent a risk to the security of title to the Mining Lease; and there were no conditions that might adversely affect the feasibility of mining. Mr Oram inspected the register and noted that the Mining Lease was in good standing, but an absolute caveat had been lodged. The absolute caveat was removed. Mr Oram did not review the papers relating to the application for the Mining Lease. On the morning of the day on which the Sale and Purchase Agreement was executed, Mr Oram inspected the register again and was satisfied that the Mining Lease remained in good standing. If his inspection had not satisfied him that the Mining Lease was in good standing, he would have reconsidered whether Cauldron should purchase the Mining Lease. Mr Oram accepted that, before the Sale and Purchase Agreement was executed, he was aware of the decision in Onslow Resources Ltd v Johnston,[3] in which Smith J had held that a mining lease was invalid because the application for the mining lease was not contemporaneously accompanied by a mining operations statement. Mr Oram also accepted that, before the Sale and Purchase Agreement was executed, he was aware of the High Court's decision in Forrest & Forrest. Nevertheless, Mr Oram said he did not think to check the papers relating to the application for the Mining Lease [158] ‑ [160].
(l)On 18 March 2015, Wyloo was incorporated. John Andrew Henry Forrest was a director of Wyloo between 18 March 2015 and 7 August 2019. Since its incorporation in 1999, Mr Forrest has been a director of Forrest & Forrest Pty Ltd. Tattarang Pty Ltd is the ultimate holding company of both Wyloo and Forrest & Forrest Pty Ltd. Since 31 October 2018, Mr Forrest has been a director of and the sole shareholder in Tattarang Pty Ltd [162].
(m)There was no evidence as to when Wyloo first became aware of the matters on which it relied in the primary proceedings to assert that the grant of the Mining Lease was invalid [163].
(n)Prior to 12 January 2021, no one had made any assertion to the effect that the Mining Lease was applied for invalidly or granted invalidly, either on the basis of the matters relied on by Wyloo in the primary proceedings or on any other basis [164].
[3] Onslow Resources Ltd v Johnston [2020] WASC 310.

The primary judge expressed the opinion that the lapse of time between the grant of the Mining Lease and the commencement of the primary proceedings, during which any interested person was able to make inquiries concerning the validity of the Mining Lease, was a critical factor in relation to his Honour's exercise of the discretion to grant declaratory relief [180].
His Honour said that it would be 'fundamentally inimical to the public interest in the sound administration of the [1978 Act] to make a declaration that the [Mining Lease] is invalid, over eight years after its grant' [181]. His Honour added that, making a declaration of invalidity in those circumstances, would have 'the potential to undermine the confidence of those involved in the resources industry in the security offered by title to mining tenements' [181].
The primary judge concluded that the lapse of time between Wyloo's incorporation in 2015 and the commencement of the primary proceedings on 22 January 2021, combined with capacity for Wyloo to have ascertained Quarry Park's failure to have complied with the essential preliminaries to a valid grant of the Mining Lease during that period, constituted an additional reason for not granting declaratory relief [182].
His Honour said that he had not failed to take into account Wyloo's submission that there is 'a compelling public interest in the [1978 Act] being administered properly and ensuring that the Executive does not deal with the resources of the State otherwise than in accordance with Parliament's intention as manifested in the Act' [183]. However, his Honour was of the opinion that 'the public interest inherent in ensuring that challenges to administrative acts are brought promptly is a countervailing one which, in the circumstances of [the present case], should be accorded precedence' [183].
Although the primary judge accepted that, by reason of Quarry Park's failure to comply with the essential statutory requirements for a valid grant of the Mining Lease, Quarry Park was 'the author of its own misfortune', his Honour did not accept that Quarry Park 'would not be prejudiced by making a declaration of invalidity in respect of the [Mining Lease] after such a long [lapse] of time after the grant' [184]. His Honour was of the opinion that the prejudice would be palpable. His Honour elaborated that if a challenge to the validity of the grant of the Mining Lease had been made more promptly, Quarry Park would not have wasted its resources in carrying out work on an invalidly granted mining lease [184]. His Honour said that 'therein lies the unfairness of allowing a challenge to the validity of a grant to be brought after such [a lapse] of time' [184].
His Honour then expressed his conclusion that, had Wyloo been 'otherwise successful', his Honour would have refused to grant declaratory relief to Wyloo [185].
The Minister, Quarry Park and Cauldron also contended that if the grant of the Mining Lease was invalid then the land the subject of the Mining Lease formed part of exploration licence E08/2329. The primary judge outlined the contention as follows [186] ‑ [187]:
(a)Section 57 of the 1978 Act provides, relevantly, as follows:
(1)Subject to this Act the Minister may on the application of any person and after receiving a recommendation of the mining registrar or the warden in accordance with section 59, grant to that person a licence to be known as an exploration licence on such terms and conditions as the Minister may determine.
(2)The area of land in respect of which an exploration licence may be granted shall be a block or blocks but shall not be more than 70 blocks unless subsection (2aa) applies.
(2aa) If the area of land referred to in subsection (2) is in an area of the State designated under section 57A(1) it shall not be more than 200 blocks.
(2a) Where an exploration licence is granted in respect of 2 or more blocks the graticular sections that constitute those blocks shall -
(a)constitute a single area; and
(b)each have a side in common with at least one other graticular section in that area.
…
(2d) Where an application for an exploration licence is made with respect to 2 or more blocks, the land in respect of which the licence is granted may include part of a block if the rest of the block consists of land that is unavailable for exploration.
(2e) For the purposes of subsections (2c) and (2d) land is unavailable for exploration if that land is, or was when the application for the exploration licence was made, the subject of a current mining tenement (other than a miscellaneous licence).
…
(2f) Where the land in respect of which an exploration licence is granted comprises or includes part of a block ‑
(a)the licence is deemed to be granted in respect of that block for the purposes of subsections (2), (2a) and (2b); and
(b)that block is deemed to be subject to the licence for the purposes of section 65; and
(c)the boundaries of the land the subject of the licence shall be deemed to be the same as the boundaries of the block for the purposes of section 67A.
…
(2h) Where the land in respect of which an exploration licence is granted comprises or includes part of a block, no other exploration licence shall be granted in respect of that block or any part of that block.
(b)By s 57(2) and (2aa), the area over which an exploration licence may be granted shall be a block or blocks.
(c)By s 57(2d), where an application is made for two or more blocks, the land over which the exploration licence is granted may include part of a block if the balance of the block comprises land that is unavailable for exploration.
(d)By s 57(2e), land is unavailable for exploration if, when the application was made, the land is or was the subject of a current mining tenement.
(e)If the grant of the Mining Lease was invalid then the land the subject of the Mining Lease would not have been 'unavailable for exploration' within s 57(2e).
(f)In those circumstances, a question would arise as to whether the grant of exploration licence E08/2329 was valid despite the incorrect assumption as to the validity of the grant of the Mining Lease and, if so, whether the area covered the overlapping part of the Mining Lease, having regard to s 105B of the 1978 Act or otherwise.
His Honour rejected the contention of the Minister, Quarry Park and Cauldron as to the operation of s 57 in the context of the hypothesis that the grant of the Mining Lease was invalid. His Honour said that the land the subject of the Mining Lease was excluded from exploration licence E08/2329 when the exploration licence was granted in 2013 and when the exploration licence was renewed in 2018. His Honour said that the 1978 Act does not expressly provide a mechanism for absorbing the land the subject of an invalidly granted mining tenement which would otherwise have formed part of an exploration licence. In his Honour's view, there is no basis for implying a provision to that effect [188].
Finally, the primary judge noted, for completeness, that he did not accept that the invalidity of a mining tenement covering an area excluded from an exploration licence, on the basis that the area was unavailable for exploration, affects the validity of the exploration licence. At its highest, such a circumstance might constitute an irregularity in the grant of the exploration licence. By the first clause of s 116(2), the irregularity would not render the exploration licence impeachable or defeasible [189].

The primary judge's conclusion in relation to Wyloo's action

The primary judge concluded that Wyloo's action must be dismissed [190].

The primary judge's orders in relation to Wyloo's action

On 22 October 2021, upon publishing his reasons for judgment, the primary judge made orders, relevantly, to this effect:
(a)Wyloo's action be dismissed (order 1);
(b)if, by 2 November 2021, no notice of appeal is filed in relation to his Honour's orders and no application is made to the Court of Appeal for an injunction pending appeal, the order for an interlocutory injunction made by his Honour on 27 January 2021 be vacated (order 6) (see [6] above); and
(c)there be liberty to apply on two clear days' notice in respect of the interlocutory injunction made on 27 January 2021 (order 7).

Wyloo's grounds of appeal

Wyloo relies upon seven grounds of appeal.
The grounds, as amended, read:
1.The learned Primary Judge erred in law in finding (at TJ [6(c)], [99]) that s 116(2) of the [1978 Act] validates an invalid mining lease granted in circumstances where none of the Director, Geological Survey, the mining registrar or warden, or the Minister (ss 71, 74A(1), 75(2), (4) and 75(6)) had jurisdiction to report on, hear, or grant (respectively) the purported application for [the Mining Lease] because a condition precedent to the existence of that jurisdiction (s 74(1)(ca)(ii)) had not been met, when the learned Primary Judge should have found:
(a)that s 116(2) cannot validate an invalid grant of a mining lease granted without jurisdiction; and
(b)alternatively, if s 116(2) may validate an invalid grant of a mining lease granted without jurisdiction (which is denied), it can only do so upon registration of a transfer in accordance with the [1978] Act.
2.In the alternative to ground 1, the learned Primary Judge erred in law in finding (at TJ [6(b)], [45] ‑ [66]) that the meaning of the word 'dealing' in s 116(2) of the [1978] Act is not as defined in s 8(1) of the [1978] Act.
3.The learned Primary Judge (at TJ [6(d)(ii)], [177] ‑ [185]) did not take into account a material consideration, or acted upon a wrong principle, in failing to identify that the refusal to declare that [the] purported [Mining Lease] lacked any legal force or effect did not confer upon that invalid mining lease any legal force or effect, including that no legal force or effect would be conferred such that the land purportedly subject to [the] purported [Mining Lease] would cease to be Crown land open for mining under s 18 of the [1978] Act.
4.The learned Primary Judge in identifying 'palpable' prejudice to Quarry Park … said to justify a refusal to grant declaratory relief (at TJ [184]), erred in fact and mistook the facts by:
(a)finding as a matter of fact that, since 12 April 2013, Quarry Park had 'incurred expenditure in exploration and mining amounting to approximately $2.5 million in respect of [the Mining Lease]' (TJ [156]); and
(b)ignoring the issue on the pleadings and the agreed fact between the parties that Quarry Park had 'reported expenditure on or in connection with mining' (Defence of Quarry Park, [15]; Exhibit 1: Statement of Agreed Facts, [22]) (not that Quarry Park had, in fact, expended such monies in each year since 2013 or was (at trial) proving expenditure of such monies since 2013).
5.The learned Primary Judge erred in fact and law in identifying 'palpable' prejudice to Quarry Park … said to justify a refusal to grant declaratory relief (at TJ [184]), by mistaking the facts in finding that Quarry Park had 'wasted its resources working an invalid mining lease' (at TJ [184]) in circumstances where no evidence was led to support a factual finding that any capital or funds spent (which is not admitted) would have been 'wasted'.
6.The learned Primary Judge (at TJ [6(d)(ii)], [181]) erred in law by acting on a wrong principle, or allowing an extraneous matter to guide or affect him, in considering that it would be 'fundamentally inimical to the public interest in the sound administration of the [1978] Act to make a declaration that a mining lease is invalid, over eight years from its purported grant', where:
(a)a purported decision was made without jurisdiction and lacks legal force or effect;
(b)the passage of time does not overcome non-compliance with the clear words and purpose of ss 74, 74A and 75 of the [1978] Act;
(c)the passage of time does not overcome the need for compliance with procedures mandated by the [1978] Act for the valid allocation of the mineral rights of the Crown in right of the State of Western Australia;
(d)Crown land the subject of an invalid mining lease remains open for mining within s 18 of the [1978] Act, to be made the subject of applications for mining tenements by others for the benefit of the State; and
(e)the Minister, by s 10(1), shall administer the [1978] Act, and this statutory duty is not limited in time.
7.The learned Primary Judge (at TJ [1], [6(d)(ii)], [177] ‑ [185]) erred in law by acting on a wrong principle, or allowing an extraneous matter to guide or affect him, in analogising, or deeming, the appellant's claim ‑ brought by writ of summons indorsed with a statement of claim ‑ as an application for judicial review pursuant to O 56 of the Rules of the Supreme Court 1971 (WA) for the purpose of applying a time limit in O 56 r 2(4) (at TJ [1], [167] ‑ [182]).

Wyloo's orders wanted in the appeal

Wyloo's orders wanted in the appeal, as amended, claim, relevantly, orders that the appeal be allowed; order 1 of the orders made by the primary judge on 22 October 2021 be set aside (see [96] above); and, instead:
(a)it be declared that:
(i)the Mining Registrar did not have jurisdiction to recommend the purported application for [the Mining Lease] as the purported application was not accompanied by, as required by section 74(1)(ca)(ii) of the [1978 Act], a mineralisation report prepared by a qualified person or a statement in accordance with subsection (1a);
(ii)the Minister (and the Delegate, or any other authorised delegate) did not have jurisdiction to purport to grant the purported application for [the Mining Lease] under sections 71 and 75(6) of the [1978 Act]; and
(iii)the purported grant of [the Mining Lease] on 12 April 2013 was invalid and of no legal force or effect;
(b)it be declared that the land the subject of the purported [Mining Lease] was at 10 January 2021 Crown land open for mining which was, for the purpose of section 18 of the [1978 Act], capable of being marked out and made the subject of application for prospecting licence [P]08/783 by Wyloo …;
(c)it be declared that the land the subject of the purported [Mining Lease] which the application for miscellaneous licence [L]08/250 by Wyloo … overlaps was at 15 April 2021 Crown land open for mining and which miscellaneous licence, if granted, will be without any reservation of rights under section 117(2) of the [1978 Act] in favour of any purported holder of [the] invalid [Mining Lease];
(d)it be declared that the land the subject of the purported [Mining Lease] was at 15 April 2021 Crown land open for mining which was, for the purpose of section 18 of the [1978 Act], capable of being marked out and made the subject of an application for prospecting licence [P]08/804 by Wyloo …;
(e)it be declared that part of the land the subject of the purported [Mining Lease] was at 15 April 2021 Crown land open for mining which was, for the purpose of section 18 of the [1978 Act], capable of being marked out and made the subject of an application for prospecting licence [P]08/803 by Wyloo …;
(f)it be declared that the entry into [the Sale and Purchase Agreement] does not:
(i)constitute a lawful 'dealing' with [the] invalid [Mining Lease]; or
(ii)otherwise operate to validate [the] invalid [Mining Lease] which is of no force or effect,
for the purpose of section 116 of the [1978 Act]; and
(g)an injunction is hereby granted restraining Quarry Park … and Cauldron …, or any of them, whether by themselves, their officers, servants, agents or otherwise, from executing or lodging any transfer of [the] purported [Mining Lease].

The interlocutory injunction made in the appeal

On 9 November 2021, Mitchell JA ordered, by consent, that:
Until further order of the Court, an injunction is hereby granted restraining [Quarry Park and Cauldron], whether by themselves, their officers, servants, agents or otherwise, from executing or lodging, any transfer of [the Mining Lease].

Wyloo's submissions in the appeal

Counsel for Wyloo's submissions in the appeal were, in summary, as follows.
Section 116(2) of the 1978 Act, properly construed, does not validate an invalid grant of a mining lease granted without jurisdiction (ground 1(a)).
Alternatively, if s 116(2) may validate an invalid grant of a mining lease granted without jurisdiction, it can only do so upon registration of a transfer in accordance with the 1978 Act (ground 1(b)).
Further, as to the alternative contention:
(a)The language of s 134 of the Transfer of Land Act 1893 (WA) (and its equivalents), which is in near identical terms to substantive parts of the second clause of s 116(2), has been interpreted only to confer protection upon a person dealing with a holder upon registration of a transfer. There appears to be no reason why this interpretation should not apply to equivalent words in the 1978 Act.
(b)However one may characterise what was said by the majority in Forrest & Forrest [77], that obiter dictum does not apply in this case. That is because what was said is expressed to apply only to a 'transfer' where there is a 'transferee'. This Court need not be concerned with the application of [77] of Forrest & Forrest in this case.
(c)Registration of a transfer can only occur in accordance with s 103C and s 119 of the 1978 Act and reg 75 of the Mining Regulations 1981 (WA) (the Mining Regulations). It is only if these provisions, together with any others that apply, may be satisfied (which is not admitted), that an invalid mining tenement may be transferred. Quarry Park and Cauldron are presently restrained by Mitchell JA's order made on 9 November 2021 from attempting to execute and register a transfer of the invalid Mining Lease.
(d)Given the above, the Mining Lease remains invalid and unable to be transferred.
The primary judge did not make a finding that the land the subject of the purported Mining Lease was not open for mining under s 18 of the 1978 Act (ground 3).
The primary judge erred by failing to identify that refusing to declare that the purported Mining Lease lacked legal force or effect did not confer upon that invalid mining lease any legal force or effect.
As part of this error, the primary judge failed to identify that the land the subject of the purported Mining Lease would continue to be land open for mining under s 18 of the 1978 Act in that the land was not subject to a valid mining tenement.
The primary judge was addressed about Wyloo's various mining tenement applications. His Honour recorded that Wyloo 'maintains the land the subject of [the Mining Lease] was open for mining because the grant was invalid and of no legal force or effect' [3]. His Honour was aware that declaratory relief about the land being open for mining was sought.
As to the orders wanted, pursuant to proposed order 2(g) of Wyloo's orders wanted, Wyloo seeks a permanent injunction substantially in the terms of the interlocutory injunction granted by Mitchell JA on 9 November 2021. That is:
An injunction is hereby granted restraining [Quarry Park and Cauldron], or any of them, whether by themselves, their officers, servants, agents or otherwise, from executing or lodging any transfer of the purported [Mining Lease].
An injunction may be granted in aid of statutory rights, including to enforce a statutory scheme, on an application by an affected party with standing to sue for the enforcement of the statute.
Wyloo is the applicant for prospecting licences P08/783, P08/803 and P08/804 under s 40(1) of the 1978 Act, and miscellaneous licence L08/250 under s 91(1) of the 1978 Act, over the Crown land open for mining under s 18.

In this context, it appears to me that s 116(2) as enacted was directed to protecting the position of a person who gained a legal interest in a mining tenement through registration rather than modifying the general rules governing priorities between competing equitable interests or equities. Those priorities are established not by the strict application of technical rules but by the ascertainment of which party has the better equity in all the circumstances. If the equities are in all other respects equal, priority in time gives the better equity.[121]
[121] See, for example, Rice v Rice (1853) 2 Drewry 73; 61 ER 646, 648; Abigail v Lapin (501 - 504); Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265, 276; Heid v Reliance Finance Corp Pty Ltd (1983) 154 CLR 326, 333 (Gibbs CJ, Wilson J agreeing), 339 - 341 (Mason and Deane JJ).
Generally, actual or constructive notice of a prior equitable interest may affect the conscience of the person acquiring the later interest so that he or she takes the later equitable interest subject to the earlier interest. However, that rule is not without its exceptions and involves considering the conduct of both parties in determining the priority of equitable interests.[122] In Moffett,[123] Brooking JA (Buchanan JA agreeing) held that the rule that a person taking with notice of an equity takes subject to it is distinct from the rule that where equities are equal the first in time prevails. However, his Honour also recognised that the rule that a bona fide purchaser for value without notice of a prior equity takes free from it is confined to purchasers of a legal estate and does not extend to purchasers of an equity.[124]
[122] See Courtenay v Austin (1961) 78 WN (NSW) 1082, 1097; Taddeo v Catalano (1975) 11 SASR 492, 498 - 501; Moffett v Dillon [1999] VSCA 32; [1999] 2 VR 480, 485 - 491 (Brooking JA), 506 (Buchanan JA) 501 - 506 (Ormiston JA); Performance Capital Mortgage Pty Ltd v Motive Finance & Leasing Pty Ltd [2010] NSWSC 429 [37] - [38]; Dixon v Barton [2011] NSWSC 1525 [155]; Meadow Springs Fairway Resort Ltd (in liq) v Balanced Securities Ltd (No 2) [2008] FCA 471; (2008) 245 ALR 726 [105] - [107].
[123] Moffett (491).
[124] Moffett (489).
Priorities as between holders of equitable interests in personality are qualified by the rule in Dearle v Hall,[125] to which the terms of s 116(2) of the 1978 Act seem inapposite. As noted at [473] above, mining tenements are personal property.
[125] Dearle v Hall (1828) 3 Russ 1; 38 ER 475, discussed in J D Heydon et al, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (5^th ed, 2015) [8-095] - [8-215].
The language of the second clause of s 116(2) is more naturally directed towards modifying the rules determining the priority of legal interests over other interests than determining the priorities of competing equitable interests.
For these reasons, the protection offered by s 116(2) of the 1978 Act as originally enacted was conferred only on registration of a 'dealing' which was necessary to create a transfer of legal interest in a mining tenement.

Amendments to the 1978 Act

The operation of the second clause of s 116(2) as enacted was not relevantly altered by subsequent amendments to the 1978 Act.
Section 85 of the Mining Amendment Act 1985 (WA) added the first clause of s 116(2) of the 1978 Act. It did not apply to the present situation for the reasons explained above and did not expand or contract the operation of what then became the second clause of s 116(2) of the 1978 Act.
The Mining Amendment Act 1996 (WA) (1996 Amendment Act) added the registration provisions which are found in pt IVA of the 1978 Act. The amendment moved the provisions dealing with the Register and registration from the Regulations to the 1978 Act. There was a contraction of the kinds of transactions creating or transferring interests in a mining tenement which were required to be registered. Section 103C(1) of the 1978 Act now identifies the instruments to which the section applies. An identified instrument which creates an interest in the mining tenement is a 'dealing', specified by s 103C(1)(a) of the 1978 Act. Under s 103C(3), only an instrument to which s 103C applies may be registered. Under s 103C(8), a 'dealing' does not pass any estate or interest in a mining tenement or in any way charge or encumber a mining tenement until it is registered in accordance with s 103C. The 1996 Amendment Act also introduced the definition of 'dealing' to s 8(1) of the 1978 Act. By this means the 1996 Amendment Act reduced the scope of the transactions which could be registered under the 1978 Act, and which had to be registered in order to create or transfer a legal interest, from all transactions to a transfer or mortgage of a legal interest in a mining tenement.
If the new definition of 'dealing' introduced by the 1996 Amendment Act to s 8(1) of the 1978 Act did not apply to the term appearing in s 116(2) then the operation of the second clause of s 116(2) would be significantly altered. Prior to the 1996 Amendment Act, there had been a correlation between the transactions which could be registered, and which were required to be registered in order to create or transfer a legal interest, and the transactions which the second clause of s 116(2) protected. That correlation would be maintained if, but only if, the definition of 'dealing' in s 8(1) of the 1978 Act were to apply to the term used in the second clause of s 116(2) of that Act.
Following its insertion into s 8(1) by the 1996 Amendment Act, the definition of 'dealing' will apply to the use of that term in s 116(2) unless the contrary intention appears.[126] The general principles as to when a contrary intention will be discerned were summarised by Buss JA (Newnes JA agreeing) in Commissioner of State Revenue v Abbotts Exploration Pty Ltd,[127] in holding that the terms 'dealt with' and 'dealing' in s 64 of the 1978 Act were not used in the defined sense.[128] Those general principles were applied by the primary judge in the present case.[129]
[126] See the chapeau to s 8(1) of the 1978 Act and s 3(1) of the Interpretation Act 1984 (WA).
[127] Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211; (2014) 48 WAR 300 [117] - [119].
[128] See Abbotts Exploration [120] - [127].
[129] Primary decision [47] - [48].
While I agree with the statement of general principle, I have taken a different view from the trial judge as to the application of that principle to the present case.
The first matter relied on by the primary judge was that the ordinary and natural meaning of the term 'dealing' can be accommodated within s 116(2) without imposing any strain on the syntax or grammar whereas some adjustment was required to insert the definition.[130] This is not a factor which should carry substantial weight. Some modification of the terms of the definition is required because 'dealing' is used in the definition as a noun and is used in s 116(2) as a verb. However, by s 9 of the Interpretation Act, where a word or phrase is defined in a written law, other parts of speech and grammatical forms of the word or phrase have corresponding meanings. It does not follow from grammatical difficulty in reading a definition into an operative provision that one does not construe the operative provision by reference to the definition.[131]
[130] Primary decision [50].
[131] See Federal Commissioner of Taxation v Apted [2021] FCAFC 45; (2021) 284 FCR 93 [80] (Thawley J, Allsop CJ agreeing).
The second matter relied on by the primary judge was that the expression 'dealing with' is used in other provisions in the 1978 Act in a manner that makes it clear that it is not being used in its defined sense.[132] I accept that is the case, as the decision in Abbotts Exploration illustrates, and that it is a relevant factor to consider. However, the fact that a contrary intention is apparent from the context in which the term 'dealing' is used in other provisions does not answer the question of whether the term is used in its defined sense in s 116(2) of the 1978 Act. The contrary intention must emerge from the context in which the term appears in s 116(2) of the 1978 Act.
[132] Primary decision [51] - [52].
The third matter to which the primary judge referred was the legislative history. After referring to the history, the primary judge accepted the Minister's submission that the defined term 'dealing' was introduced into the 1978 Act to give effect to the establishment of a scheme for the registration of a limited class of instruments, namely legal interests by way of transfer or mortgage in mining tenements, and not to change the meaning of the expression 'dealing with' in s 116(2).[133]
[133] Primary decision [64].
I accept that a primary purpose of the definition of 'dealing' was to identify, and reduce the scope of, the transactions which could be registered under s 103C of the 1978 Act. However, the second clause of s 116(2) of the 1978 Act did not, prior to the amendment, operate independently of the provisions allowing and requiring instruments to be registered. As I have noted, prior to the enactment of the 1996 Amendment Act, all of the transactions protected by the second clause of s 116(2) could be registered and were required to be registered to create or transfer a legal interest in the mining tenement. Section 116(2) operated to protect a person once a legal interest in the mining tenement was created or transferred, which could only occur on registration. The application of the definition to s 116(2) would preserve the correlation of the transactions protected by s 116(2) and the instruments which could be registered. If the definition did not apply, then the operation of the second clause of s 116(2) would be significantly extended by a side wind to apply to unregistered equitable interests. This is a factor which counts strongly in favour of the existence of an objective legislative intention to apply the definition of 'dealing' to s 116(2) of the 1978 Act. Further, there is nothing in this legislative history which evinces a contrary intention that the term 'dealing' was not used in its defined sense in s 116(2) of the 1978 Act.
In my view, the 1996 Amendment Act preserved the previous operation of the second clause of s 116(2) of the 1978 Act in protecting persons engaged in transactions with the registered holder of a mining tenement once the transaction was registered. It did so by enacting the definition of 'dealing' which identified the transactions which could be registered under s 103C of the 1978 Act and which were protected by the second clause of s 116(2) of that Act.
My conclusion is consistent with the views expressed in the passage from Forrest & Forrest quoted at [455] above, which refers to 'those who took a transfer of a mining lease'. That transfer occurs on registration. However, the conclusion which I have reached is not driven by that passage of the High Court's reasons, in which I accept that the majority was not necessarily speaking exhaustively.
Other amendments to s 116 of the 1978 Act do not affect this conclusion. Section 16 of the 1996 Amendment Act also inserted the definition of 'registered' in s 116(3) of the 1978 Act. That definition tends to confirm that the person with whom someone obtaining the protection of the second clause of s 116(2) must deal is the person whose name is or was entered in the Register as the holder of the mining tenement rather than a person who has received a valid grant or transfer of a mining tenement. However, it does not materially assist in determining whether the second clause of s 116(2) provides protection before or only after registration of a transfer or mortgage of a legal interest in a mining tenement. An amendment in 2012 merely made a presently immaterial modification to s 116(1) of the 1978 Act.[134]

Conclusion as to the operation of s 116(2) of the 1978 Act

[134] Section 34 of the Mining Amendment Act 2012 (WA).

For the reasons explained above, the first clause of s 116(2) does not apply to the present case as the invalidity of the Mining Lease does not arise from 'any informality or irregularity' within the meaning of that provision. The primary judge was correct to so hold.
I agree with the primary judge's view that, in a case where it applies, the effect of the second clause of s 116(2) is to put a person dealing with the registered holder of a mining tenement that had not been granted validly in the same position as if the title had been granted validly and to protect that person from claims founded on any contended invalidity of the tenement.[135] However, I have taken a different view from the primary judge as to when the second clause of s 116(2) applies.
[135] Primary decision [99].
In my view the second clause of s 116(2) as it currently stands protects only persons taking a transfer or mortgage of a legal interest in a mining tenement once that transfer or mortgage is registered. That is the most natural meaning of the language used in the provision understood in the context of other provisions of the 1978 Act, including the definition of 'dealing' in s 8(1), the provisions for the registration of legal interests in mining tenements and the provision for caveats to protect unregistered interests. The legislative history of the provision, including the settled meaning of equivalents to s 134 of the TLA from which the language of the second clause of s 116(2) was taken, confirms that meaning.
As Cauldron Energy has not obtained a registration of the transfer of the Mining Lease and the consequent legal title to the Mining Lease, it cannot rely on the protection of the second clause of s 116(2). Nor can Quarry Park rely on the second clause of s 116(2) as it obtained the Mining Lease by direct grant rather than any dealing with a registered holder of the mining tenement.

Section 18 of the 1978 Act

Section 18 of the 1978 Act relevantly identifies Crown land open for mining that may be the subject of an application for a mining tenement subject to and in accordance with that Act. The identified land is all 'Crown land, not being Crown land that is the subject of a mining tenement'. The term 'mining tenement' is defined in s 8(1) of the 1978 Act and relevantly includes a 'prospecting licence' and a 'mining lease' which is 'granted or acquired under this Act'. That definition operates by reference to the grant or acquisition of a mining tenement rather than its registration.
The Mining Lease is not a mining tenement as defined as it was not granted under the 1978 Act and the agreement for its transfer was not an effective 'acquisition' of a mining tenement prior to registration of a transfer. There is no warrant for reading the reference to a 'mining tenement granted … under this Act' in the definition of 'mining tenement' as encompassing a mining lease purportedly granted under the 1978 Act contrary to the requirements of the 1978 Act which condition the existence of the power to make the grant.
I note that the plurality in Forrest & Forrest, in the passage quoted at [455] above, refers to titles which are 'liable to be set aside'. I do not read that passage as determining that registration of the grant of a mining tenement means that the tenement is valid until set aside. That was not a question which the court was called on to determine.
To hold that the registration of a mining tenement is effective to create rights until it is set aside is inconsistent with the concept that the title of a grantee of a mining tenement derives from the terms of the grant rather than the registration of the grant (see [436] above). It would also be inconsistent with the express terms of s 103C(7) of the 1978 Act, which provides that:
The acceptance of an instrument for registration does not give to it any priority (other than in so far as registration may be taken to be constructive notice), force, effect or validity that it would not have had if this section had not been enacted.
Further, the language of s 18 of the 1978 Act and the associated definition of 'mining tenement' relevantly operates by reference to the grant rather than the registration of the grant of the tenement.
The Subject Land was not 'Crown land that is the subject of a mining tenement' within the meaning of s 18 of the 1978 Act. As such, it was Crown land that was open for mining and could be the subject of a valid application for a prospecting licence by Wyloo Metals in January 2021 and April 2021.[136] Further, the mining registrar or warden considering whether to grant Wyloo Metals a prospecting licence under s 42 of the 1978 Act are not relevantly constrained by s 43(1) of that Act which provides, subject to presently immaterial exceptions:
Where an application for a prospecting licence relates to land that is, or was when the application was made, the subject of a mining tenement, any prospecting licence granted in respect of that application shall not include that land.
[136] I note that there is no challenge to the primary judge's conclusion at primary decision [186] - [188] that, even if the Mining Lease was invalid, the Subject Land was not Crown land open for mining on the basis that it was subject to an exploration licence.

Exercise of discretion

Grounds 3 - 7 of Wyloo Metals' appeal challenge the primary judge's conclusion that, had Wyloo Metals been otherwise successful, declaratory relief should be refused on discretionary grounds.
There were essentially three factors which led the primary judge to that conclusion.
First, the primary judge observed:[137]
[S]ince 2013 it was open to any member of the public to make the inquiries necessary to determine whether Quarry Park had complied with the essential preliminaries for the grant of the mining lease and subject to satisfaction of the pre-requisites for declaratory relief, to challenge the grant. Further, as [Wyloo Metals] asserts against [Cauldron Energy], the High Court's decision in [Forrest & Forrest] and its significance was well-known in the exploration and mining industries. In those circumstances the elapse of time between the grant of the mining lease and the commencement of this action, during which it was open to any person interested to make inquiries about the validity of the mining lease, is a factor, and in my opinion, a critical factor, bearing on the exercise of the discretion to grant declaratory relief.
[137] Primary decision [180].
Secondly, the primary judge said:[138]
In my opinion, it would be fundamentally inimical to the public interest in the sound administration of the [1978 Act] to make a declaration that the mining lease is invalid, over eight years after its grant. Making a declaration of invalidity in those circumstances would have the potential to undermine the confidence of those involved in the resources industry in the security offered by title to mining tenements.
[138] Primary decision [181].
Thirdly, the primary judge observed that:[139]
[T]he elapse of the time between [Wyloo Metals'] incorporation [in 2015] and the commencement of the proceedings [in January 2021], coupled with the capacity for it to have established Quarry Park's failure to have complied with the essential preliminaries to a valid grant of the [Mining Lease] at any time since its incorporation, constitute an additional reason for not granting declaratory relief.
[139] Primary decision [182].
The primary judge concluded that the public interest in ensuring that challenges to administrative acts are brought promptly should be given precedence over the public interest in the proper administration of the 1978 Act and ensuring the executive does not deal with the State's resources otherwise than in accordance with that Act.[140] The primary judge also noted that, while Quarry Park was the author of its own misfortune, it would be prejudiced by a declaration as to invalidity made so long after the grant. His Honour said:[141]
Had a challenge to the validity of the grant been made more promptly Quarry Park would not have wasted its resources working an invalid mining lease and therein lies the unfairness of allowing a challenge to the validity of a grant to be brought after such an elapse of time.
[140] Primary decision [183].
[141] Primary decision [184].

In my view, the primary judge erred in principle in failing to have regard to the impact of the invalidity of the Mining Lease on the status of the Subject Land as Crown land open for mining and the rights of Wyloo Metals as an applicant for a prospecting licence. I have concluded that the Subject Land was Crown land open for mining under s 18 of the 1978 Act. It follows that when Wyloo Metals applied for a prospecting licence over that land it exercised the right to do so conferred by s 18, s 40 and s 41 of the 1978 Act. Subject to the exercise of the Minister's power to terminate the application for a prospecting licence under s 111A, Wyloo Metals has the right to have its applications considered by a mining registrar or warden under s 42 of the 1978 Act. Section 43 of the 1978 Act does not operate to preclude the grant of a prospecting licence on the basis that the Subject Land was already subject to a mining tenement.
The justiciable controversy to be resolved by the primary proceedings was raised by the parties' assertion of inconsistent rights in relation to the mining on the Subject Land. Quarry Park and Cauldron Energy asserted rights said to arise from the grant or purported grant of the Mining Lease including the exclusive rights to mine the land conferred by s 85 of the 1978 Act. Wyloo Metals asserted the right to apply for a prospecting licence over the Subject Land and to have that application considered by a mining registrar or warden in accordance with the 1978 Act. I have concluded that, as a matter of law, Wyloo Metals has the right it asserted and Quarry Park and Cauldron Energy do not have the rights they asserted.
In determining whether Wyloo Metals should nevertheless be denied the discretionary relief it sought, it was necessary to bring into account the impact of refusing relief on the rights which Wyloo Metals has established. The fact that Wyloo Metals had the right to apply for a prospecting licence and has the right to have that application properly considered in accordance with the 1978 Act must be taken into account in deciding to refuse relief which would recognise those rights. The fact that the registration of the transfer of the Mining Lease to Cauldron Energy would, by operation of s 116(2) of the 1978 Act, effectively extinguish Wyloo Metals' existing rights is also a consideration which a proper exercise of the discretion should take into account. Registration of a transfer to Cauldron Energy would likely follow from the refusal of declaratory relief by the court.
The fact that Wyloo Metals was seeking relief recognising the rights which it had also affects the way in which the issue of delay must be considered. While Wyloo Metals might have discovered the deficiency in the title to the Mining Lease at any time, the mere discovery of that fact would not have elevated its interest in the matter beyond that of any member of the public so as to give it standing to seek curial relief.[142] The justiciable controversy in this case, and standing to challenge the validity of the Mining Lease, arose only when Wyloo Metals resolved to apply for a prospecting licence over the Subject Land, asserting rights which were inconsistent with those purportedly granted by the Mining Lease. There was no time limit imposed on Wyloo Metals making an application for a prospecting licence over that land. It could do so at any time at which the Subject Land had the status of Crown land open for mining. Wyloo Metals acted promptly to seek declaratory relief on 22 January 2021 shortly after it had applied for a prospecting licence on 11 January 2021.
[142] See Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493, 526 - 528 (Gibbs J), 537 - 538 (Stephen J), 547 - 548 (Mason J).
The primary judge's contrary approach involved an error of principle which requires this court to re-exercise the discretion. Grounds 3 and 6 are established to the above extent, which requires me to consider for myself the manner in which the discretion should be exercised. It is unnecessary to otherwise resolve grounds 3 - 7.
I see no justification for denying Wyloo Metals declaratory relief in support of the rights which it has established in these proceedings. As I have noted, Wyloo Metals acted promptly and without delay in seeking curial relief after it applied for a prospecting licence. Wyloo Metals was entitled to apply for a prospecting licence at any time that the Subject Land was Crown land open for mining. By virtue of the invalidity of the Mining Lease, the Subject Land was Crown land open for mining at the time Wyloo Metals' applications for a prospecting licence were lodged. There was no delay by Wyloo Metals that would justify a discretionary refusal to grant relief. To the extent that Cauldron Energy has expended funds in reliance on the existence of the Mining Lease, it was (as the primary judge recognised) the author of its own misfortune in failing to comply with the statutory preconditions for the grant of a valid mining tenement. On the other hand, Wyloo Metals exercised the statutory right which it had to apply for a prospecting licence and had not engaged in any conduct which disentitled it from that right.
Unlike the primary judge, I would give little weight to the consideration that the grant of relief might 'undermine the confidence of those involved in the resources industry in the security offered by title to mining tenements'.[143] From the establishment of the Constitution of the State it has been fundamental that the management of Crown land and mines and minerals thereon is vested in the legislature.[144] No effective grant of rights to exploit the mineral resources of the State may be made except in the manner Parliament has authorised.[145] The Mining Lease was purportedly granted in a manner which Parliament did not authorise. The 1978 Act makes no provision for security of that title prior to the registration of a transfer or mortgage which engages the second clause of s 116(2) of that Act. The terms of the 1978 Act do not disclose a statutory purpose of securing the title of persons who have directly received a purported grant of a mining tenement which the 1978 Act did not authorise.
[143] Primary decision [181].
[144] Nicholas v The State of Western Australia [1972] WAR 168, 172 (Jackson CJ, Virtue SPJ agreeing), 174 (Burt J).
[145] Forrest & Forrest [64].
Having regard to these matters, I would exercise the court's discretion to declare that the Mining Lease is invalid and that the Subject Land was Crown land open for mining at the time of Wyloo Metals' applications for a prospecting licence.
Wyloo Metals seeks a permanent injunction restraining Quarry Park and Cauldron Energy from executing or lodging any transfer of the Mining Lease.[146] It is not clear to me on what basis the court would impose such a restraint, apart from preserving the subject matter of the appeal pending its determination as was done by the interim injunction. Quarry Park would not be acting unlawfully by executing and lodging a transfer even if the Mining Lease was invalid. It seems to me that, if any restraint were to be imposed, it should be directed to what the Minister and Department should do with a transfer if it were lodged for registration. But that is not the order that Wyloo Metals seeks.
[146] Amended orders wanted, par 2(g).
It is unnecessary to finally resolve the issues averted to in the previous paragraph. Once that declaratory relief is granted, it does not appear to me to be necessary to grant injunctive relief preventing the registration of the transfer of the Mining Lease to Cauldron Energy. Counsel for the State informed the court that, if a declaration of invalidity is made, the Register will be amended by the Director General of the Department under s 103F or an authorised officer under s 103G and any transfer lodged for registration will be rejected under s 103D(1)(b) of the 1978 Act.[147] That is the appropriate course for the Department to take once a declaration of invalidity is made. In that way, the grant of declaratory relief will be sufficient to protect Wyloo Metals' interests.
[147] Third respondent's supplementary submissions, par 46.
The appeal having been determined, the interlocutory injunctions granted by the primary judge on 27 January 2021 and by me on 9 November 2021 should be discharged.

Orders

For the above reasons, I would:
1.allow the appeal;
2.set aside the primary orders made on 22 October 2021;
3.substitute a declaration that the Mining Lease is invalid and that the Subject Land was Crown land open for mining at the time of Wyloo Metals' applications for a prospecting licence; and
4.discharge the interim injunction granted by this court on 9 November 2021 and the interlocutory injunction granted by the primary judge on 27 January 2021.
I would hear from the parties as to the precise form of these orders, and as to the costs of the appeal and of the primary proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable President Buss
17 APRIL 2024