Wyloo Metals Pty Ltd v Quarry Park Pty Ltd - [2021] WASC 356

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   WYLOO METALS PTY LTD -v- QUARRY PARK PTY LTD [2021] WASC 356
CORAM:   TOTTLE J
HEARD:   11, 12 & 13 MAY 2021
DELIVERED          :   22 OCTOBER 2021
FILE NO/S:   CIV 1315 of 2021
BETWEEN:   WYLOO METALS PTY LTD
Plaintiff
AND
QUARRY PARK PTY LTD
First Defendant
MICHELLE ANNE BAKER, AS MINING REGISTRAR AT KARRATHA
Second Defendant
THE MINISTER FOR MINES AND PETROLEUM
Third Defendant
CAULDRON ENERGY LIMITED
Fourth Defendant
ONSLOW RESOURCES LTD
Fifth Defendant
REGENT POINT PTY LTD
Sixth Defendant
ANTHONY WARREN SLATER
Seventh Defendant
AMANDA GRACE, AS DELEGATE OF THE MINISTER FOR MINES AND PETROLEUM PURSUANT TO SECTION 12 OF THE MINING ACT 1978 (WA)
Eighth Defendant

Catchwords:

Mining law - Judicial review - Where failure to comply with statutory requirements for the grant of a mining lease - Grant invalid

Mining law - Judicial review - Meaning of expression 'person dealing with a registered holder of mining tenement' in s 116(2) of the Mining Act 1978 (WA) - 'Dealing with' not confined to the transfer or mortgage of a legal interest in a mining tenement

Mining law - Judicial Review - Protection afforded by s 116(2) of the Mining Act 1978 (WA) to a person dealing with a registered holder of a mining tenement - Where mining tenement not the subject of a valid grant - Person dealing with registered holder of mining tenement protected from consequence of invalidity

Limitation period - Administrative law - Whether an action seeking mere declaratory relief is 'an action on a cause of action' for the purposes of the Limitation Act 2005 (WA) - Action for a mere declaration an action on a cause of action to which Limitation Act 2005 (WA) applies

Limitation period - Administrative law - Relevance of elapse of time between impugned exercise of statutory power and commencement of action for declaratory relief - Declaratory relief refused where elapse of time approximately eight years

Mining law - Where land covered by mining tenement excised from grant of exploration licence under s 57 of the Mining Act 1978 (WA) - Whether excised land forms part of exploration licence in the event that grant of mining tenement invalid - Excised land does not form part of exploration if mining tenement available

Legislation:

Crown Suits Act 1947 (WA)
Federal Court of Australia Act 1976 (Cth)
Goldfields Act 1895 (WA)
Interpretation Act 1984 (WA)
Limitation Act 2005 (WA)
Mining Act 1904 (WA)
Mining Act 1978 (WA)
Mining Amendment Act 1985 (WA)
Mining Amendment Act 1996 (WA)
Mining Regulations 1981 (WA)
Native Title Act 1993 (WA)
Rules of Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Transfer of Land Act 1893 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	AJ Myers QC & AJ Papamatheos & CE McKay
First Defendant	:	D Chandler
Second Defendant	:	No appearance
Third Defendant	:	AJ Sefton SC & A Shuy
Fourth Defendant	:	D Chandler
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Clayton Utz (Sydney)
First Defendant	:	Lawton Macmaster Legal
Second Defendant	:	State Solicitor's Office
Third Defendant	:	State Solicitor's Office
Fourth Defendant	:	Lawton Macmaster Legal
Fifth Defendant	:	Lawton Macmaster Legal
Sixth Defendant	:	Lawton Macmaster Legal
Seventh Defendant	:	Lawton Macmaster Legal
Eighth Defendant	:	State Solicitor's Office

Cases referred to in decision:

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Atkins v Minister for Mines (1996) 15 WAR 226
Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406
Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Buttrose v Attorney-General (NSW) [2015] NSWCA 221; (2015) 324 ALR 562
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
Commonwealth of Australia v State of Western Australia [1999] HCA 5; (1999) 196 CLR 392
Crocker Consolidated Pty Ltd v Wille [1988] WAR 187
Davies v Minister for Urban Development and Planning [2011] SASC 87; (2011) 109 SASR 518
Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536
Hall v City of Burnside [2006] SASC 283; (2006) 102 SASR 298
Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234
Judamia v Western Australia (Unreported, WASC Full Court, Library No 960114, 1 March 1996)
Lewis Securities Ltd (in Liq) v Carter [2018] NSWCA 118; (2018) 355 ALR 703
Nova Resources NL v French (1995) 12 WAR 50
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2; (2021) 386 ALR 212
Onslow Resources Ltd v Johnston [2020] WASC 310
Onslow Resources Ltd v Johnston [2021] WASCA 151
O'Reilly v Mackman [1983] 2 AC 237
Pacific Coilcoaters Ltd v Interpress Associates Ltd [1998] 2 NZLR 19
Polo Enterprises Australia Pty Ltd v Shire of Broome [2015] WASCA 201; (2015) 49 WAR 134
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185
Re City of Perth; Ex parte Lord [2002] WASCA 254
Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Re Smith; Ex parte Rundle (1991) 5 WAR 295
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438
Watson v National Companies and Securities Commission [1988] WAR 332
Westfield Management Ltd v AMP Capital Property Nominees Ltd [2012] HCA 54; (2012) 247 CLR 129
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
Yougarla v Western Australia (1998) 146 FLR 128
Yougarla v Western Australia [1999] WASCA 248; (1999) 21 WAR 488

TOTTLE J:

Summary

These reasons concern an application for judicial review brought by way of an action for declaratory relief. An unusual feature of the application is that it is brought nearly eight years after the decision it seeks to impugn.
The essential facts are these. On 12 April 2013 the first defendant, Quarry Park, was granted mining lease M08/487 over an area of approximately 95 ha along the Ashburton River in the Pilbara region of Western Australia. On 22 December 2020 Quarry Park entered into an an agreement with the fourth defendant, Cauldron, to sell the mining lease and other mining tenements to Cauldron (the Sale and Purchase Agreement). On 11 January 2021 the plaintiff, Wyloo, applied for a prospecting licence over the land that was the subject of the mining lease. On 22 January 2021 Wyloo commenced proceedings for declaratory relief to the effect the grant of the mining lease was invalid.
Wyloo maintains the land the subject of mining lease M08/487 was open for mining because the grant was invalid and of no legal force or effect.
The issues are as follows:
(a)When it applied for the mining lease did Quarry Park fail to comply with the provisions of the Mining Act 1978 (WA) (the Act)[1] governing applications for mining leases with the result that the jurisdiction of the mining registrar to recommend the grant of mining lease M08/487, and the jurisdiction of the Minister to grant it, were not enlivened?
(b)By entering into the Sale and Purchase Agreement did Cauldron deal with Quarry Park in the latter's capacity as the registered holder of the mining lease in a manner that attracted the operation of s 116(2)?
(c)If the answer to (b) is 'yes', what is the scope of the protection afforded by the second clause of s 116(2) - did Cauldron's dealing with Quarry Park put it in the same position as it would have been in if the title to the mining lease had been granted validly?
(d)Is Wyloo's claim for declaratory relief statute barred?
(e)Assuming all other issues are resolved in Wyloo's favour, are there reasons why declaratory relief should not be granted?
[1] In these reasons unless otherwise stated references to statutory provisions are references to the Mining Act 1978 (WA).
The declaratory relief sought by Wyloo is set out in the appendix.
For the reasons given below I have concluded:
(a)The grant of mining lease M08/487 was invalid.
(b)By entering into the Sale and Purchase Agreement Cauldron dealt with Quarry Park and obtained the protection afforded by the second clause of s 116(2).
(c)The second clause of s 116(2) operates to put Cauldron in the same position it would have been had the title to the mining lease been granted validly.
(d)If Wyloo's claim had not failed for the reasons given in (b) and (c):
(i)its claim would not have been statute barred; and
(ii)the elapse of time between the grant of the mining lease and the commencement of proceedings would have been a reason for not exercising the discretion to grant declaratory relief.

Procedural history

Wyloo commenced three actions, the first on 22 January 2021, the second on 16 February 2021 and the third on 20 April 2021. In the first action Wyloo's claims were directed to the invalidity of the grant of the mining lease and the validity of its application for a prospecting licence. In the second action Wyloo claimed declaratory relief in respect of a number of special prospecting licence applications made by directors of Cauldron over the land covered by the mining lease and in the third action Wyloo claimed declaratory relief in respect of further prospecting licence applications made by it after the commencement of the other two actions. The substantive issues in the actions were the same. The actions were consolidated and heard together.
On 12 February 2021 I granted an injunction restraining Quarry Park and Cauldron from executing or lodging any transfer in respect of the mining lease and ordered that the trial be expedited.[2]
[2] Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2021] WASC 30.
The Minister has filed and served a defence but the Minister's role in these proceedings was akin to that of an amicus curiae.

Evidence

The facts relating to the primary issues were largely agreed. They were set out in a statement of agreed facts that referred to relevant documents. As I address each issue I will recount the facts relevant to it.
A number of witness statements were accepted into evidence. With one exception the witnesses were not cross-examined. The exception was Mr Jess Oram, one of Cauldron's directors, who gave evidence about the steps taken by him to be satisfied that Quarry Park held the title to the mining lease and to check it was in good standing. I will refer to Mr Oram's evidence in more detail later in these reasons.

Was the grant of the mining lease invalid?

Overview

Wyloo contended that the application for the mining lease was not accompanied by a mineralisation report or a mining operations statement and thus the essential preliminaries to a valid application were not fulfilled. Quarry Park accepted that the original application papers were 'not wholly compliant' but argued that a 'non-compliant operations statement' did not invalidate a mining lease application. The facts were very similar to those in Forrest & Forrest v Wilson,[3] and Onslow Resources Ltd v Johnston,[4] and the applicable legal principles are to be found in the judgment of the majority (Kiefel CJ, Bell, Gageler and Keane JJ) in Forrest & Forrest v Wilson and in the judgment of the Court of Appeal in Onslow Resources.

Relevant provisions of the Act

[3] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510.

[4] Onslow Resources Ltd v Johnston [2021] WASCA 151.

Land that is not the subject of a mining tenement, and which falls within the definition of 'Crown land' in s 8, is land open for mining and which may be made the subject of an application for a mining tenement 'subject to and in accordance with [the] Act'.[5]
[5] Mining Act 1978 (WA) s 18.
Part IV of the Act provides for the grant of mining tenements including prospecting licences (div 1) and mining leases (div 3).
An application for a mining lease is required to be made in the prescribed form[6] and to be accompanied by: the prescribed rent for the first year of the term of the lease;[7] the prescribed application fee;[8] a mining proposal,[9] or a statement (mining operations statement) and a mineralisation report 'prepared by a qualified person'.[10] A 'qualified person' is a member of the Australasian Institute of Mining and Metallurgy or the Australian Institute of Geoscientists.[11]
[6] Mining Act 1978 (WA) s 74(1)(a).
[7] Mining Act 1978 (WA) s 74(1)(b).
[8] Mining Act 1978 (WA) s 74(1)(c).
[9] Mining Act 1978 (WA) s 74(1)(ca)(i).
[10] Mining Act 1978 (WA) s 74(1)(ca)(ii).
[11] Mining Act 1978 (WA) s 74(7); Mining Regulations 1981 (WA) reg 25C.
If an application for a mining lease is accompanied by a mining operations statement and a mineralisation report, the Director, Geological Survey, is required to provide the Minister with a report as to whether there is significant mineralisation in the land to which the application relates (the s 74A report).[12] The s 74A report is required to be based solely on information contained in the mineralisation report and any further information provided by an applicant in response to a request by the Director.[13]
[12] Mining Act 1978 (WA) s 74A.
[13] Mining Act 1978 (WA) s 74A(3).
'Subject to [the] Act' the grant of a mining lease lies with the Minister.[14] The application, however, comes first before a mining registrar (when there is no objection) or a mining warden (when there is an objection). The registrar or warden, as the case may be, makes a recommendation to the Minister, who decides the application.[15]

The facts

[14] Mining Act 1978 (WA) s 71.

[15] Mining Act 1978 (WA) s 71, s 75(2) and s 75(4) - (6).

On 9 September 2011 Quarry Park applied for an exploration licence over an area of land which included the area covered by its subsequent application for mining lease M08/487. The application for the exploration licence was numbered 08/2329.
On 16 November 2011 Quarry Park lodged with the then Department of Mines and Petroleum (the Department) a Form 21 application for a mining lease over the approximate area of land covered by the mining lease M08/487. The application was accompanied by a letter signed by Quarry Park's director, Mr Warren Slater, which read as follows:
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 a 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.
Quarry Park contended Mr Slater's letter of 16 November 2011 'enlivened the jurisdiction of the Director, Geological Survey under s 74A'.[16] There was no dispute, however, that Mr Slater was not at any relevant time a member of the Australasian Institute of Mining and Metallurgy or the Australian Institute of Geoscientists.
[16] First and fourth defendants' defence filed 27 April 2021 [7(a)].
Quarry Park advertised its application for mining lease M08/487 in the West Australian newspaper and gave notice of its application to BHP Billiton Petroleum (Australia) Pty Ltd who lodged an objection. The objection was subsequently withdrawn by consent. There were no other objections to the application for the mining lease.
On 15 December 2011 an officer of the Department acting on behalf of the Director, Geological Survey sent an email to Mr Slater drawing his attention to the requirement for a 'formal' mineralisation report and a 'Supporting Mining Statement'. It is clear from the context that the reference to a 'Supporting Mining Statement' was a reference to the requirement for a statement that met the requirements of s 74(1a), that is, a 'mining operations statement'.
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 covered by the mining lease for which it had applied.
Quarry Park lodged a document that met the requirements of a mining operations statement on 26 July 2012 and it lodged a mineralisation report on 8 August 2012. On 17 August 2012 the Acting Executive Director, Geological Survey of Western Australia, confirmed that the contents of the mineralisation report fulfilled the requirements of Section 74(1)(ca)(ii) and that there was significant mineralisation of sand and gravel or aggregate in, on or under the land to which the application related.
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'. At the bottom of this document was the heading 'To: Minister for Mines and Petroleum' and below that heading the registrar had ticked a box stating:
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.

On 8 April 2013, the State of Western Australia, the Minister, Quarry Park, and the Burrabalayji Thalanyji Aboriginal Corporation executed a documented entitled 'Deed of Grant of Mining Tenement' pursuant to s 28(1)(f) and s 31(1)(b) of the Native Title Act 1993 (Cth). The deed was made in respect of mining lease M08/487 and other mining tenements.
On 12 April 2013 the Director, Mineral Titles Division sent a letter to Quarry Park informing it that the application for M08/487 had been granted subject to endorsements and conditions set out in an attached schedule. On the same day mining lease M08/487 was entered into the register maintained by the Director General of Mines with the following details:
(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 08/2329 was granted and the area covered by the mining lease application was excised from the grant.

Consideration and disposition

Quarry Park's argument that mining lease M08/487 was validly granted rested on two propositions. First, a mineralisation report and a mining operations statement were ultimately lodged with the Department. Secondly, the Act permitted a distinction to be drawn between not filing the required document at all and filing a document that, in a general sense, answered the statutory criteria but was not wholly compliant with the statutory requirements. It contended the letter of 16 November 2011 answered the statutory criteria but was not wholly compliant. It is the second proposition that is controversial.
Quarry Park's letter dated 16 November 2011 was not a mineralisation report because (putting to one side other problems) it was not prepared by a qualified person. The letter was not a mining operations statement. It did not purport to be one. It contained none of the information required by s 74(1a). The letter of 16 November 2011 did not answer the statutory criteria in any respect.
Even if the letter of 16 November 2011 could be characterised as being 'not wholly compliant' with the statutory requirements, the majority's judgment in Forrest & Forrest v Wilson makes it plain that exact compliance with the statutory pre-conditions is required. The majority said:[17]
The clear meaning of s 74(1)(ca)(ii), as a matter of ordinary parlance, was that the documentation relied upon must have been lodged at the same time as the application was lodged, as each of the courts below held. The text of s 74(1)(ca) did not admit of any ambiguity or doubt on this point. The tenor of s 74(1)(ca)(ii) was both precise and prescriptive, conveying an intention not to countenance any degree of non-compliance with the requirement.
…
In addition, an applicant for a mining lease who chose to proceed by way of mineralisation report under s 74(1)(ca)(ii) engaged the powers and duties of each of the Director, Geological Survey and the warden in the process leading to the grant by the Minister. Once an application was to be pursued in that way, the Director, Geological Survey became empowered and obliged to prepare a report under s 74A(1) based on the mineralisation report that accompanied the application, and no other. The Court of Appeal erred in holding that, while it was an essential preliminary condition that the mineralisation report be lodged at 'some time', the report did not have to accompany the application.
In departing from the terms of the Act in this way, the Court of Appeal failed to take into account the circumstance that, as the express words of sub-ss (1) and (7) of s 74A made clear, the Director, Geological Survey was obliged to provide a s 74A report based on a mineralisation report that accompanied the relevant application, not some other mineralisation report provided at some unspecified other time. The mineralisation report that the Director, Geological Survey was required to consider in producing his or her report pursuant to s 74A was expressly defined in s 74A(7) to mean the mineralisation report that accompanied the application. No power was conferred on the Director, Geological Survey to extend time or to act upon some other document. The Director, Geological Survey was not authorised to receive or act upon a mineralisation report in any way other than that prescribed. Section 74A(7) had to be allowed to work according to its express terms and ordinary meaning. (emphasis supplied)
[17] Forrest & Forrest Pty Ltd v Wilson [67], [70] - [71].
In Onslow Resources the Court of Appeal rejected in emphatic terms the concept of a 'non-compliant mining operations statement'. The Court said:[18]
... [I]t is appropriate to make the following observations in relation to the submission that a 'non-compliant mining operations statement' can be regularised by the provision of subsequent information, so as to empower the Registrar to make a recommendation under s 75(3) of the Act.
In that regard, in our view the scheme of the Act, as construed by the High Court in Forrest & Forrest, does not admit of the notion of a 'non-compliant mining operations statement', in the sense of a document that partially meets the description of the statement required by s 74(1a) of the Act. A statement lodged with an application for a mining lease either meets the criterion stipulated in s 74(1)(ca)(ii) - that it is 'a statement in accordance with' s 74(1a) - or it does not. There is no 'halfway house' in which a document includes sufficient parts of the information required by s 74(1a) so as to enliven jurisdiction to consider the application but insufficient information to comply with the Act.
If an application for a mining lease relying upon s 74(1)(ca)(ii) is non-compliant, in the sense that it is not accompanied by a mining operations statement that meets the requirements of, and thus is in accordance with, s 74(1a), the Registrar is neither empowered, nor obliged, to request further information to make it 'compliant'.
[18] Onslow Resources Ltd v Johnston [48] - [50].
In my judgment the recommendation to grant mining lease M08/487 and the grant by the Minister of the mining lease were made without jurisdiction because the essential pre-conditions to the power to recommend and the power to grant were not satisfied. Those essential pre-conditions were the requirement that the application for the mining lease be accompanied by a mineralisation report and a mining operations statement.

Did the Sale and Purchase Agreement attract the operation of s 116(2) of the Act?

Overview

Among other matters, s 116(2) provides that no person dealing with the 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. The first question dividing the parties about this provision is whether 'dealing with' should be construed, as Wyloo contended, by reference to the statutory definition of 'a dealing' meaning a transfer or mortgage of a legal interest in a mining tenement, [19] (registered, alternatively lodged or executed) or, as Cauldron, Quarry Park and the Minister contended, it should be construed more broadly to mean 'to do business with' and thus encompass a transaction such as the Sale and Purchase Agreement.

Relevant provisions of the Act

[19] Mining Act 1978 (WA) s 8(1).

Relevantly s 8(1) provides:
(1)In this Act, unless the contrary intention appears -
...
dealing means a transfer or mortgage of a legal interest in a mining tenement;
Every mining lease contains a condition that the lessee shall not transfer or mortgage a legal interest in such land or any part thereof without the prior written consent of the Minister, or of an officer of the Department acting with the authority of the Minister.[20]
[20] Mining Act 1978 (WA) s 82(1)(d).
A holder of a mining tenement may apply to transfer the whole of it or an interest in it by lodging a transfer in the form of 'Form 23' with the prescribed fee.[21]
[21] Mining Regulations1981 (WA) reg 75.
Part IVA of the Act (s 103A - s 103H) contains provisions governing 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 as follows:
Dealings affecting the same mining tenement take priority according to the date and time of their registration.
Section 103F deals 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.
The definition of 'dealing' in s 8(1) and pt IVA was introduced into the Act by the Mining Amendment Act 1996 (WA). In Commissioner of State Revenue v Abbotts Exploration Pty Ltd,[22] Buss JA (as his Honour then was) referred to the background to, and nature of, the amendments made by the Mining Amendment Act 1996 as follows:[23]
As I have mentioned, the deﬁnition of 'dealing' in s 8(1) was inserted by the Mining Amendment Act 1996. That amending Act also inserted Pt IVA, which is headed 'Registration of instruments and register' and comprises ss 103A to 103H. The Minister for Works, Mr Minson, said in his Second Reading Speech in relation to the Mining Amendment Bill 1996 that the Bill had three objectives, one of which was 'to reform the provisions [of the Act] relating to the registration of dealings against mining tenements'. See Western Australia, Parliamentary Debates, Legislative Assembly, 20 June 1996, p 3013. The Minister elaborated (p 3014):
The dealings registration provisions of the Mining Act, and those relating to the administration of the register for mining tenements, have been reviewed by the Department of Minerals and Energy in consultation with mining industry members. This review had its origins in a report titled 'Reform of the Registration Provisions of the Mining Act 1978 (WA)' prepared by the WA branch of the Australian Mining and Petroleum Law Association Ltd.
The focus of the review was to make the dealings registration system more simple and certain with the general aims being to require the registration of legal interests in mining tenements by way of transfer and mortgages; that equitable and contractual interests in mining tenements be protected by a system of caveats to give notice of a prior interest; and that the administration of the register of mining tenements be updated and inserted into the Act. The Bill proposes these changes and will generally incorporate them into one area of the Act.
...
The deﬁnition of 'dealing' in s 8(1) was inserted, in conjunction with the enactment of Pt IVA, by the Mining Amendment Act 1993. The object or purpose of those amendments, as recounted by the Minister in his Second Reading Speech, was to reform the provisions of the Act relating to the registration of dealings and the administration of the register for mining tenements under the Act. The focus of the amendments was 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. The deﬁnition of 'dealing', which is conﬁned to 'a transfer or mortgage of a legal interest in a mining tenement', reﬂects this scheme as embodied in Pt IVA.
[22] Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211; (2014) 48 WAR 300.
[23] Commissioner of State Revenue v Abbotts Exploration Pty Ltd [116] and [122].
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.

The facts

The making of the Sale and Purchase Agreement was not in dispute. Quarry Park agreed to sell M08/487 and other mining tenements and mining tenement applications. The Sale and Purchase Agreement contained conditions precedent including obtaining the consent of the Minister under s 82(1)(d) to the transfer of the mining lease to Cauldron and obtaining approval from Cauldron's shareholders to an issue of shares (forming part of the consideration) to Quarry Park and related parties.

Consideration and disposition

Determining the meaning of the expression 'dealing with' as used in s 116(2) is an exercise in statutory construction which requires attention to text, context, purpose and coherence.[24] Context must be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise. [25] 'Context' is to be understood in its widest sense to include such matters as the existing state of the law, the legislative history of the provision and any relevant reports of law reform bodies which describe the matters requiring legislative reform.[26]
[24] Mohammadi v Bethune [2018] WASCA 98 [31] - [36] (Martin CJ, Mazza and Beech JJA).
[25] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] - [70], (McHugh, Gummow, Kirby and Hayne JJ).
[26] CIC Insurance Ltd v Bankstown Football Club Ltd (408); Commissioner of State Revenue v Abbotts Exploration Pty Ltd [91].
The combined effect of s 8(1) of the Act and s 9 of the Interpretation Act 1984 (WA) is that, unless a contrary intention appears, when the word 'dealing' is used, it means a transfer or mortgage of a legal interest in a mining tenement and, if other parts of speech and grammatical forms of the word 'dealing' are used, they have corresponding meanings.
In Commissioner of State Revenue v Abbotts Exploration Pty Ltd, Buss JA (with whom Newnes JA agreed), in the course of reasoning to the conclusion that the expressions 'dealing' and 'dealt with' used in s 64 of the Act did not bear the meaning ascribed to the defined term 'dealing', drew attention to three principles applicable to determining whether a contrary intention appears. Omitting citation of authority the three principles are:[27]
(a)A contrary intention must be found within the particular context in which the deﬁned word appears, and when found, the deﬁnition is then departed from for the purposes of that particular provision only.
(b)A deﬁnition section will not be given effect so as to defeat the meaning of a word or expression required by the context of the particular provision in which it appears. This is so even if the deﬁnition section does not expressly state that its application is 'unless the contrary intention appears'.
(c)A contrary intention may be inferred from a particular provision if the application of the deﬁnition to the particular provision would result in the particular provision operating in a manner which Parliament plainly did not intend.
[27] Commissioner of State Revenue v Abbotts Exploration Pty Ltd [117] - [119].
Thus, determining whether s 116(2) evinces an intention that 'dealing' should bear a meaning other than that ascribed to it by s 8(1), involves construing the text of the provision, including the ordinary and natural meaning of the words, the context, including the legislative history, and the purpose of the provision (without adopting any a priori view as to purpose).[28]
[28] Commissioner of State Revenue v Abbotts Exploration Pty Ltd [91] - [129].
Relevantly, the ordinary meaning of the words 'deal with' is 'to do business with'.[29] The expression encompasses a wide range of conduct. 'Dealing with' includes taking a transfer from an owner of property but a person may deal with another person or deal with property without taking a transfer of property.[30] The breadth of the ordinary meaning of the words 'dealing with' contrasts starkly with the specificity of the statutory meaning of 'dealing'.
[29] Macquarie Concise Dictionary (5th ed, 2009).
[30] Commissioner of State Revenue v Abbotts Exploration Pty Ltd [110] - [111].
Within the immediate context of the language of s 116(2) the ordinary meaning of 'dealing with' is also its natural meaning. The ordinary meaning can be accommodated within the provision without imposing any strain on the syntax or grammar. Conversely, the statutory meaning of 'dealing' cannot be inserted into s 116(2) without altering the syntax of the clause - it is not its natural meaning. The difficulty accommodating the statutory definition was illustrated by the re‑formulation of the clause proposed by Wyloo which was as follows:[31]
and no person [transferring or mortgaging a legal interest in a mining tenement] 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 ...
[31] Plaintiff's outline of opening submissions dated 30 April 2021 [98].
As to the broader context, the expression 'dealing with' is used in other provisions in the Act in a manner that makes it clear that it is not being used in its defined sense. I have already referred to the conclusion reached by the Court of Appeal in Commissioner of State Revenue v Abbotts Exploration Pty Ltd that 'dealing' and 'dealt with' when used in s 64(1) of the Act do not bear the defined meaning. 'Dealt with' and 'dealing with' are used in s 119(2) in a context that makes it clear that they are expressions that encompass a transaction involving a mining tenement other than the transfer or mortgage of a legal interest. Likewise, s 162(2)(q) draws a distinction between transferring mining tenements and 'otherwise dealing with mining tenements' that makes it clear that 'otherwise dealing with' encompasses transactions other than transfers or mortgages of legal interests in mining tenements.

Wyloo accepted that the language surrounding the expressions 'dealing with' in s 64, s 119(2) and s 162(2)(q) compelled the conclusion that, in those provisions, 'dealing' should be given a wider meaning than that ascribed to it by s 8(1). It contended, however, that the language in s 116(2) that follows 'dealing with' concerns other property law and equitable priorities issues (such as prior purchase monies and unregistered interests) and that language would have little or no work to do if the word 'dealing' were to take on such an expansive definition as would cover the broad field of commercial transactions and interactions.[32] I do not accept that contention. Depending on the facts there may be an overlap in the protection afforded by the first and second parts of the second clause of s 116(2) but fundamentally they are directed to different matters. The first part is directed to the circumstances under which the registered holder or any previous holder was registered and the second part is, in effect, directed to excluding the operation of the general law regulating priorities.
[32] Plaintiff's outline of opening submissions dated 30 April 2021 [101].
Wyloo advanced a further contextual reason for concluding that 'dealing with' should not be given a broad construction. It argued that because a 'dealing' as defined in s 8(1) formed part of a narrow class of instruments required to be registered under s 103C, 'dealing with', as it appears in s 116(2), should be given a restrictive construction.[33] I do not accept that this is a relevant aspect of the wider statutory context. That transfers or mortgages of legal interests form part of a limited class of instruments required to be registered does not provide a compelling foundation, in logic, principle or pragmatism, for limiting the protection afforded by the second clause of s 116(2) to those who take a transfer or mortgage of a legal interest from a registered holder of a mining tenement.
[33] Plaintiff's outline of opening submissions dated 30 April 2021 [102].
Wyloo drew support for its argument that s 116(2) only protected transferees or mortgagees of a legal interest in a mining tenement from the terms in which the majority in Forrest & Forrest v Wilson had expressed their view about who was protected by the second clause of s 116(2).[34] Their Honours said:[35]
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). (emphasis supplied)
[34] Plaintiff's outline of opening submissions dated 30 April 2021 [103].
[35] Forrest & Forrest Pty Ltd v Wilson [77].
There was no argument before the High Court on the meaning of the expression 'dealing with' as it appears in s 116(2) and there was no discussion in the judgment of the meaning of that expression. In my view the majority's use of the words 'transfer' and 'transferee' do not imply that their Honours had concluded that the protection afforded by s 116(2) only extended to transferees or mortgagees of legal interests in mining tenements.
As to the legislative history of s 116(2),[36] it was common ground that the origin of the second clause of s 116(2) can be traced back to s 12 of the Goldfields Act 1895 (WA).
[36] The account of the legislative history is drawn substantially from the account helpfully prepared by counsel for the Minister and set out in an appendix to the Minister's outline of opening submissions dated 7 May 2021.
Section 12 of the Goldfields Act, as introduced, provided that:
EXCEPT in the case of fraud no person contracting or dealing with or taking or proposing to take a transfer from the registered holder of any lease shall be required or in any manner concerned to inquire or ascertain the circumstances under or the consideration for which such holder or any previous holder thereof was registered or to see to the application of any purchase or consideration money or shall be affected by notice actual or constructive of any trust or unregistered interest any rule of law or equity to the contrary notwithstanding; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.
Section 12 of the Goldfields Act was not included in the original Goldfields Bill 1895 (WA). It was inserted during Legislative Council debates. It was accepted without discussion.[37] It adopts the language used in s 134 of the Transfer of Land Act 1893 (WA). The general object of the bill was to repeal the several Acts which were then in force so that 'every miner [could] know, without much trouble, what [they were] doing'.[38] There was no definition of the terms 'dealing' or 'dealing with' in the Goldfields Act.
[37] Western Australia, Parliamentary Debates, Legislative Council, 10 October 1895, (Hansard) 1312-1313.
[38] Western Australia, Parliamentary Debates, Legislative Council, 9 October 1895, (Hansard) 1278-1279.
In 1904 the Goldfields Act and other mining related Acts were repealed and the Mining Act 1904 (WA) was enacted. Section 84 of the Mining Act 1904, which was in similar but not identical terms to s 12 of the Goldfields Act, provided that:
EXCEPT in the case of fraud, no person dealing with a registered applicant for, or holder of, a lease shall be required or in any way concerned to inquire into or ascertain the circumstances under which the registered applicant or 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.
Among other changes the provision no longer included express reference to a person contracting with, or taking or proposing to take a transfer from, a registered applicant for, or holder of, a lease. I accept the submission made by the Minister to the effect that the absence of express references to a 'person contracting or dealing with or taking or proposing to take a transfer from' reflected a simplification of the language used (not a restriction of the ambit of operation of the provision) and, categories of transaction to which there was no express reference were taken up in the 1904 Act by the compendious expression 'dealing with'. As with the Goldfields Act, the Mining Act 1904 did not contain any definition of the term 'dealing' or 'dealing with'. Section 84 was later renumbered s 85 after various amendments to the Mining Act 1904.
The modified form of words in the Mining Act 1904 was retained in the Mining Act1978. When the Mining Act 1978 was first enacted, s 116(2) was in the following form:
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 applicant, or 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.
The first clause of s 116(2) in its present form was inserted by s 85 of the Mining Amendment Act 1985 (WA).
The introduction of the dealings registration provisions necessitated amendments to s 64 of the Act which used the term 'dealing' (rather than the term 'dealing with' used elsewhere in the Act). The words 'or other transaction in or affecting the interest' and 'or other transaction' were inserted in s 64 after the word 'dealing' where it appeared in that section.
Conformably with the view expressed by Buss JA in the passages from Commissioner of Revenue v Abbots Exploration Pty Ltd quoted earlier in these reasons, I accept the Minister's submission that the defined term 'dealing' was introduced into the 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).
Construing s 116(2) by reference to the matters to which I have referred in the preceding paragraphs of this section of these reasons, I hold that the purpose of the second clause 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. For the purposes of determining the issues in this case, it is unnecessary to attempt to define the metes and bounds of the dealings that fall within the second clause of s 116(2). It follows that on its proper construction s 116(2) evinces an intention that the meaning of the expression 'dealing with' does not correspond with, and is not limited by, the definition of 'dealing' in s 8(1).
For the sake of completeness, I add that a transaction with the registered holder of a mining tenement does not fall outside the operation of s 116(2) because it is subject to conditions. As Quarry Park and Cauldron argued, the legislature could not have intended that the requirement of ministerial consent for the transfer of an exploration licence in its first year (s 64(1)) and of every mining lease (s 82(1)(d)) would mean all dealings with holders of these mining tenements would be excluded from operation of s 116(2) because the transactions would by their nature be required to be conditional.

What is the scope of the protection afforded by s 116(2)?

Overview

Wyloo contended that properly construed s 116(2) does not cure or validate an invalidly granted mining lease. It contended this position was supported by the authorities. Wyloo contended that a person who holds no title could not, by 'dealing with' another, give title which the Minister never could, and that to allow a registered holder of a mining tenement who had obtained a grant in a manner that did not comply with the requirements of the Act to pass title by dealing with another would be to allow the 'non-compliant party' to take the benefit of their wrong. Wyloo argued any such dealings are unenforceable and contrary to the provisions or statutory policy of the Act.
The Minister argued the protection afforded by the second clause of s 116(2) extended to putting the protected person in the same position as if the title had been validly granted and protected the person from claims founded on any contended invalidity of the tenement. The Minister contended this position was supported by the observations made by the majority in Forrest & Forrest v Wilson on the operation of the second clause of s 116(2) which adopted what had been said by Toohey J in Hunter Resources Ltd v Melville.[39] Quarry Park and Cauldron's submissions did not differ materially from those advanced by the Minister.

The authorities

[39] Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234.

Wyloo argued that there was ample authority to support the proposition that jurisdictional error in the grant of a mining tenement is not overcome or cured by s 116(2), so as to confirm or validate an invalid grant. Wyloo relied on Crocker Consolidated Pty Ltd v Wille,[40] Watson v National Companies and Securities Commission,[41] Atkins v Minister for Mines,[42] and Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd,[43] and argued that support for the proposition could be found in the judgments of Wilson and Toohey JJ in Hunter Resources Ltd v Melville and in the judgment of the majority in Forrest & Forrest v Wilson. On my analysis the authorities do not support the proposition advanced by Wyloo.
[40] Crocker Consolidated Pty Ltd v Wille [1988] WAR 187.
[41] Watson v National Companies and Securities Commission [1988] WAR 332.
[42] Atkins v Minister for Mines (1996) 15 WAR 226.
[43] Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134.
In CrockerConsolidated Pty Ltd v Wille, the Full Court of this court rejected the proposition that marking out in accordance with s 105 of the Act (as then enacted) was an essential pre-condition of the grant of a prospecting licence. Burt CJ, with whom Olney J agreed, referred to s 116(2) of the Act (then recently amended by the introduction of the first clause) and held:[44]
In my opinion the defective pegging, which is what is alleged here, if established is an 'irregularity in the application or in the proceedings previous to the grant' and the licence issued cannot be impeached and it is not defeasible for that reason. The policy of the Act is that the grant is the licensee's root of title and in the absence of fraud and assuming the jurisdiction to make it is indefeasible. (emphasis supplied)
[44] Crocker Consolidated Pty Ltd v Wille (191).
Wyloo argues that the inclusion of the words 'assuming jurisdiction' make it clear that Burt CJ did not consider that s 116(2) applied if the decision maker had no jurisdiction to grant the tenement. As was pointed out on the Minister's behalf, however, Crocker was a decision concerned with the first clause of s 116(2) and it does not provide guidance as to the construction of the second clause.
Watson v National Companies and Securities Commission was another case in which the Full Court (Malcolm CJ, Wallace and Brinsden JJ) expressed views on the ambit of the first clause of s 116(2). In Watson a company held one prospecting licence and had pending applications for two further prospecting licences. The company was de-registered and approximately two months after de‑registration (on 13 February 1986) the two pending applications were granted. The legal status of those two prospecting licences fell for determination in the Full Court in judicial review proceedings. Malcolm CJ held:[45]
Nothing vested in the NCSC with respect to the applications. As at 13 February 1986 there was no applicant to whom a grant could be made. That conclusion is of itself fatal to the application so far as it relates to those licences. In my opinion the absence of an applicant is not an informality or irregularity in the proceedings for the purposes of s 116(2) of the Mining Act. That provision simply has no application. The purported grants were void.
[45] Watson v National Companies and Securities Commission (339).
Brinsden J took a similar view[46] and Wallace J expressed agreement on this point.[47]
[46] Watson v National Companies and Securities Commission (353).
[47] Watson v National Companies and Securities Commission (349).
Once again, however, Watson was a case concerned with the first clause of s 116(2) and does not guide the construction of the second clause.
In Atkins v Minister for Mines, Mr Atkins and St Barbara Mines Ltd sought declaratory and injunctive relief against, among others, the Minister. Mr Atkins had applied for, and been granted, an exploration licence. It was later identified that part of the licence covered an area which had been declared as an area for which no exploration licence should be applied for or granted under s 57(4) of the Act.
St Barbara had entered into an arrangement with Mr Atkins by which it was to acquire Mr Atkins rights in relation to the exploration licence and (as second plaintiff) 'relied on the second clause of s 116(2). The dealing between Mr Atkins and St Barbara was not registered under the Mining Regulations, apparently due to delays associated with documents having been assessed for stamp duty. At the relevant time, reg 110(3) of the Mining Regulations provided that no dealings affecting a mining tenement 'shall be effectual to pass any estate or interest ... until registered'.
Against that background Rowland J held the Minister only had jurisdiction or power to grant a licence over land that is not the subject of other mining tenements or is not exempted pursuant to s 57(4) and, thus, the unavailable land was excised and in effect never formed part of the grant. His Honour's analysis of the application of the second clause in s 116(2) to St Barbara's position was as follows:[48]
What, then, is the effect of the second [part] of the indefeasibility provisions in s 116(2)?
By s 116(1), the holder of a tenement shall receive an instrument of licence or lease, as the case may. By the second part of s 116(2), in the absence of fraud, a person dealing with the registered holder of the instrument need not inquire into the circumstances under which the registered holder became registered.
The instrument itself, however, is not given any statutory indefeasibility, except to the extent that it protects persons dealing with the registered holder and protects that person to the extent that the registered holder has the grant, irrespective of how that came about. None of these protections gives indefeasibility to the grant itself if the grant does not include all that is apparently within the boundaries shown on any description of the area. The grant is deemed, by virtue of the Act, to exclude land which could not be the subject of grant. The Act does not make the instrument indefeasible, except to the extent that, whatever the grant includes, the person named as registered holder can be safely dealt with as the holder of whatever is the subject of the grant.
If the grant is deemed to be conditioned so as to exclude land that was not available to be granted at the time of grant, then it follows that the grant capable of being assigned cannot be greater than the grant held by the assignor of the grant because the original grant contains its own statutory limitations.
It follows, in my view, that even leaving aside the provisions of reg 110(3) referred to by Toohey J in Hunter Resources Ltd v Melville, the second indefeasibility provision of s 116(2) cannot, in the circumstances of this case, avail St Barbara.
It is unnecessary, in view of these findings, to consider the other issues raised by the plaintiffs. As a matter of law, the grant in favour of Atkins has, on the agreed facts, never included the disputed land.
That obviously limits the effectiveness of the indefeasibility provisions of s 116. That, however, must follow if the construction I have placed on the Act is correct.
[48] Atkins v Minister for Mines (238 - 239).
Rowland J's analysis proceeds from the premise that there had been a valid grant of a tenement to Mr Atkins but that the grant excluded the land that was unavailable by reason of s 57(4). It is important to note that while his Honour concluded the second clause of s 116(2) could not be relied upon to confer on a person dealing with the registered holder of a tenement rights in respect of land that was excluded from the grant, his Honour expressed the view that by the second clause of s 116(2) a person dealing with the registered holder was protected irrespective of how the grant came about.
In Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd McLure P (with whom Owen and Buss JJA agreed) said:[49]
Eaglefield and Narnoo conceded that if an application in compliance with s 69 is a precondition to the existence of the power to grant an exploration licence under s 57(1) of the Act, the grant of an exploration licence pursuant to an application prohibited by s 69(1) will be outside the scope of ss 59(6) and 116(2) of the Act and be invalid. These concessions are in line with authority: David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 279. Accordingly, the failure to comply with a precondition to the existence of a power under the Act must always result in invalidity. On the other hand, the failure to comply with a statutory requirement that is not a precondition to the existence of a power may (in the absence of any statutory provision to the contrary), but not must, result in invalidity.
...
The respondents also rely on ss 59(6) and 116(2) as indicating a general legislative intent to avoid the inconvenience and prejudice (to which I would add, uncertainty) resulting from mining tenements being invalid for non-compliance with the Act. These provisions do not support a conclusion that the legislature intended that there be no preconditions to the existence of the power to grant a mining tenement.
[49] Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [29] and [49].

Wyloo argues it is clear from McLure P's observations that jurisdictional error is 'outside the scope of s 116(2)'. I do not accept McLure P's observations can be characterised in such absolute terms. Her Honour's observations must be read in the context of the facts of the case with which the Court of Appeal was concerned. Relevantly, the facts of Yarri did not engage the second clause of s 116(2). It was not a case in which a person had dealt with the registered holder of a mining tenement and was claiming the protection of the second clause of s 116(2). It is clear from the context in which they were made that McLure P's observations were directed to the operation of the first clause in s 116(2) and not to the scope of protection afforded by the second clause in s 116(2) to a person dealing with a registered holder of a mining tenement.
In Hunter Resources Ltd v Melville the High Court (Wilson, Dawson and Toohey JJ, Mason CJ and Gaudron J dissenting) held that an applicant for a prospecting licence was required to comply strictly with the requirements of s 105 as to marking out and substantial compliance was not sufficient however all members of the court held that the warden had jurisdiction to determine the application whether the applicant had complied with the marking out requirements or not. In their dissenting judgment Mason CJ and Gaudron J (referring to the first clause of s 116(2)) expressed the view that:[50]
The reference to 'proceedings previous to the grant or renewal of that tenement' is wide enough to comprehend an irregularity in the proceedings before the warden and in the marking out of the land the subject of the grant or renewal. The sub-section is designed to protect the grant or renewal of a licence as a root of title and it gives emphasis to the statutory policy that the grant or renewal is a root of title.
[50] Hunter Resources Ltd v Melville (243).
Addressing the issue quite shortly, Wilson J,[51] and Dawson J,[52] each expressed the view that s 116(2) had the effect of protecting a prospecting licence from attack on the basis that there had been non‑compliance with marking out requirements. Toohey J addressed the issue at greater length and observed:[53]
Once a mining tenement is granted, the holder is entitled to receive an instrument of lease or licence: s. 116(1). The 'indefeasibility' provision of the Act (s. 116(2)) protects a person dealing with a registered holder of a tenement. Except in the case of fraud, no person dealing with a registered holder need be concerned to inquire into the circumstances under which the holder was registered nor is the person affected by notice of any unregistered trust or interest. The provision is similar to the 'notice' provision to be found in Torrens System statutes: see for instance Transfer of Land Act 1893 (W.A.), s. 134. Although s. 116(2) speaks of the registered holder of a mining tenement, the Act itself does not provide a system of registration. This is done by reg. 106. While the efficacy of the original grant is not made to depend upon registration, no dealings affecting a mining tenement 'shall be effectual to pass any estate or interest ... until registered': reg. 110(3).
There is no section corresponding with the Torrens System provision whereby the registered proprietor holds free of any unregistered interest other than those expressly mentioned in the section: cf. Transfer of Land Act, s. 68. It should not be assumed therefore 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.
[51] Hunter Resources Ltd v Melville (246).
[52] Hunter Resources Ltd v Melville (255 - 256).
[53] Hunter Resources Ltd v Melville (259).
In Forrest & Forrest v Wilson the majority concluded that the relevant non-compliance with the requirements of the Act was fatal to the validity of the grant and was not an informality or irregularity protected by the first clause of s 116(2). The majority referred to the operation of the first clause and the potential operation of the second clause of s 116(2) as follows:[54]
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: 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, 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.”
[54] Forrest & Forrest v Wilson [76] - [77].
Wyloo drew support for its argument from the first paragraph of the extract of the majority's judgment quoted above.[55] It contended that what the majority said in the second paragraph of the extract was obiter dicta which was not central to its reasoning.[56] The Minister contended that the majority's observations on the operation of the second clause of s 116(2) was central to the reasoning that the Court of Appeal's concern that upsetting titles to mining leases would cause unintended hardship was misplaced.[57]
[55] Plaintiff's outline of opening submissions dated 30 April 2021 [70].
[56] Plaintiff's outline of reply submissions dated 10 May 2021 [14] - [16].
[57] Third defendant's outline of opening submissions dated 7 May 2021 [15] - [16].
The scope of the protection conferred by the second clause of s 116(2) was not addressed at any length in argument in Forrest & Forrest v Wilson, though it is interesting to note that before the High Court the appellant submitted that the second clause of s 116(2) gave rise to 'deferred indefeasibility' and was apt to protect any person dealing with a registered holder of a tenement and that would include dealing with a person who was registered but was not entitled to be registered.[58]
[58] Forrest & Forrest v Wilson [2017] HCATrans 64.
The submissions made by Wyloo's senior counsel, Mr Myers QC, in oral argument about the majority's observations on the operation of the second clause of s 116(2) can be distilled to the following points. First, the majority's view on s 116(2) was not essential to their reasoning.[59] Second, Toohey J's observations, referenced by the majority, were made in the context of a case in which no question of a jurisdictional flaw in the grant arose.[60] Third, the reference by the majority to a mining lease in the sentence: 'And as to those who took a transfer of a mining lease from [the respondents], such transferees would be protected by the second clause of s 116(2)', should be understood as a reference to a mining lease that had been validly granted,[61] (Mr Myers emphasised that on the majority's reasoning on the primary issue of validity, there was no mining lease 'to be set aside' - what had been purportedly granted was simply void).[62]
[59] ts 222.
[60] ts 224.
[61] ts 222 - 223.
[62] ts 222.
I do not accept that what the majority said in Forrest & Forrest v Wilson on the operation of 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. The statements were made in the context of a discussion of a mining lease granted invalidly. That context does not support the confined interpretation for which Wyloo contended. Moreover, 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).
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.

Consideration and disposition

Having set out my understanding of the view expressed by the High Court on the scope of the protection afforded by the second clause of s 116(2), I will begin by referring to the arguments advanced by Wyloo in support of construing the clause as having a more confined operation.
To recap - Wyloo contended the second clause of s 116(2) assumes valid title is held by the 'registered holder' but does not operate to confer valid title if the registered holder did not have it in the first place. It contended the reference to the 'registered holder' indicates that the second clause of s 116(2) only addresses the question of who has property rights and interests and the focus on property ownership is seen to continue in the references to the application of purchase money, notice and unregistered trusts or interests. Wyloo makes the point that, 'none of the language [used]… validates an invalid grant by a purported sale', and stressed the importance of the High Court's command in Forrest & Forrest v Wilson for the need to find an express contrary intention to depart from the 'settled approach' to the strict construction of a legislative regime concerned with a State's mineral rights. It contended that none of the matters referred to in the second clause have relevance to the concept of validating invalid titles.[63]
[63] Plaintiff's outline of opening submissions dated 30 April 2021 [72] - [79].
A major theme of Wyloo's argument in respect of the second clause of s 116(2) was that there were important distinctions between the limited system of registration of title to mining tenements created by the Act and the Torrens system of land registration. In this respect Wyloo pointed to the following:[64]
(a)The Act provides a system of registration of title rather than title by registration.
(b)In contrast to a certificate of title registered under the Transfer of Land Act 1893 (WA),[65] which is conclusive evidence that the registered proprietor holds the estate, interest or power described in the certificate, a certified copy of an extract from the register is evidence, but not conclusive evidence, of the matter contained in the document.[66]
(c)Section 103C(7) provides that acceptance of an instrument for registration does not give it any greater priority, force, effect or validity than it would have had if s 103(C) had not been enacted. Wyloo contended that this provision 'positively denies' any further efficacy being given to an instrument by reason of registration.
(d)While s 103(C)(8) provides that a 'dealing' does not pass any legal estate or interest in a mining tenement until it is registered, the only effect of this provision is to isolate the time at which an interest in a valid tenement can pass. Further, 'mining tenement' means a 'mining tenement' as defined in s 8(1), that is, a tenement 'granted or acquired under this Act' and a tenement not granted or acquired under the Act is not captured by the provision.
(e)The caveat regime in pt VI of the Act does not confer any rights in invalid tenements.
[64] Plaintiff's outline of opening submissions dated 30 April 2021 [81] - [86].
[65] Transfer of Land Act 1893 (WA), s 63(1).
[66] Mining Act 1978 (WA), s 161(3).
Further, Wyloo contended the acceptance for registration of a transfer of an invalidly granted tenement is not capable of creating any rights (pursuant to equity or any other doctrine) in the transferee as against the Minister because it is not possible to set up an estoppel against the statute.
Wyloo argued there is nothing in the origin of s 116(2) which provides support for a construction which makes valid an invalid grant.
In assessing these contentions, reference must first be made to the purposes of the Act. The Act's primary purpose is to encourage and promote the prospecting and exploration for, and mining of, mineral deposits in the State.[67] As explained by the Court of Appeal in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum,[68] other objects of the Act include:[69]
(a)identifying circumstances in which a tenement holder will be allowed to hold a mining tenement without mining or giving it up for others who may wish to actively mine the land;
(b)protecting tenement holders who have defaulted in compliance with the Act in some minor respect, or because of some circumstances beyond the control of the tenement holder, against loss of the tenement; and
(c)providing that, in general, the holder of a mining tenement should carry out the relevant mining activity on the tenement.
[67] Nova Resources NL v French (1995) 12 WAR 50, 57 (Rowland J, Kennedy & Pidgeon JJ agreeing); Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 [70] (Buss JA, Wheeler JA agreeing); Commonwealth of Australia v State of Western Australia [1999] HCA 5; (1999) 196 CLR 392 [172] (Kirby J).
[68] Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425.
[69] Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [96] (Murphy, Mitchell & Beech JJA).
Security of title and certainty of title are fundamental to the attainment of the objects of the Act. Against that background the register maintained by the Director-General of Mines not only assists the Executive to control and manage the mineral resources of the State but it serves two further closely related purposes:
(a)It provides information relating to mining tenements upon which the public are entitled to rely with confidence. Regulation 84C prescribes the information in relation to a mining tenement to be contained in the register. It is extensive. It includes the name of the registered holder, rental payments, money expended or deemed to be expended on mining, particulars of exemptions, particulars of applications relating to the tenement and other particulars of significance to any person interested in the tenement.
(b)It enables those engaged in transactions concerning mining tenements to determine with confidence and certainty (without conducting detailed inquiries as to the title history) with whom they should contract, thereby facilitating the efficient conduct of business concerning the ownership and financing of mining projects. Of course, the level of certainty and confidence is dependent, in part, on the answer to the question of construction raised in this case about the ambit of operation of the second clause of s 116(2).
The second clause of s 116(2) has two parts:
(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.
Both parts of the second clause of s 116(2) adopt the language used in s 134 of the Transfer of Land Act, one of the core indefeasibility provisions of the Torrens system. However, the Act does not establish a system of title by registration, rather title lies in the grant. There are no equivalents in the Act of s 63 and s 68 of the Transfer of Land Act which establish the paramountcy of the register under the Torrens system. Thus, caution must be exercised before importing the concept of indefeasibility and its incidents from the Torrens system into the more limited registration regime established by the Act. That said, these observations may be made. First, it is apparent from the language used in both clauses that the object of s 116(2) is to confer some immunity from challenge to the title of mining tenements. Second, the adoption in the second clause of the language used in s 134 of the Transfer of Land Act conveys a conception of 'limited' or 'deferred indefeasibility'.[70]
[70] A Gardner and M Jorek, ‘Dealings with Mining Titles under the Mining Act 1978 (WA): Part 2 - The Effect of Registration & Caveats’ (2006) 25(1) Australian Resources and Energy Law Journal 41, 46 and 49; N Skead, 'The Registration and Caveat Systems Under the Mining Act 1978 (WA): A Torrens Clone?' (2007) 26(2) Australian Resources and Energy Law Journal 185, 192-193.
The extent to which the registration regime in the Act has introduced the concept of indefeasibility of title is a difficult issue.[71] While Wyloo's contentions in respect of the construction of the second clause of s 116(2) have force, I am not persuaded by them for the following reasons.
(a)Wyloo's contentions are contrary to my understanding of the reasoning of the majority in Forrest & Forrest v Wilson on the protection afforded by the second clause of s 116(2).
(b)Wyloo's argument that the language used in the second clause of s 116(2) is concerned with who has property rights and interests in valid tenements does not attach sufficient weight to the introductory words in the first part of the second clause of s 116(2), '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', and conflates the first and second parts of the second clause. The first part of the second clause adopts the language of indefeasibility used in s 134 of the Transfer of Land Act which suggests the provision is concerned with something more than valid tenements. Further, 'the circumstances' is an expression of a wide import and its use does not suggest the operation of the second clause is confined to valid tenements as Wyloo contends.
(c)Protecting those who deal with the registered holder of a mining tenement from challenges to the title of the tenement while withholding immediate indefeasibility from the original grantee strikes a balance between providing security and certainty of title and discouraging applicants for mining tenements from failing to comply strictly with the essential preliminaries.
(d)The second clause of s 116(2) is a remedial provision intended to provide protection to those who deal with the registered holders of mining tenements and a beneficial construction should be adopted.
[71] A Gardner and M Jorek, ‘Dealings with Mining Titles under the Mining Act 1978 (WA): Part 2 - The Effect of Registration & Caveats’ (2006) 25(1) Australian Resources and Energy Law Journal 41, 49; N Skead, 'The Registration and Caveat Systems Under the Mining Act 1978 (WA): A Torrens Clone?' (2007) 26(2) Australian Resources and Energy Law Journal 185, 192-193; Hunt M, Kavenagh T and Hunt J, Hunt on Mining Law in Western Australia (5^th ed, 2015) 256 - 258.

In O'Reilly v Mackman[135] Lord Diplock observed:
'[t]he public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision'.[136]
[135] O'Reilly v Mackman [1983] 2 AC 237.
[136] O'Reilly v Mackman (280 - 281).
In Re Smith; Ex parte Rundell,[137] Malcolm CJ, with whom Pidgeon and Walsh JJ agreed, observed that the court retains a discretion to refuse relief even where that relief may be said to lie ex debito justitiae if for example there has been undue delay.[138]
[137] Re Smith; Ex parte Rundle (1991) 5 WAR 295.
[138] Re Smith; Ex parte Rundle (315).
In Re Commonwealth of Australia; Ex parte Marks,[139] McHugh J dealt with an application to extend the time within which to make applications for prerogative writs of certiorari and mandamus. His Honour referred generally to the types of considerations relevant to extending time in which to bring an application or lodge an appeal and went on to say:[140]
Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.
[139] Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470.
[140] Re Commonwealth of Australia; Ex parte Marks [15].
Hall v City of Burnside,[141] involved a challenge by way of judicial review to a decision to grant a building consent and development approval. The proceedings were commenced 11 months after the date of the decision. The plaintiffs applied for an extension of time. In his reasons for refusing the application for an extension Doyle CJ made the following observations in the context of a six-month time limitation period for judicial review:[142]
If the plaintiffs bring other proceedings, not by way of judicial review, in which they challenge the validity of the building consent and the development approval on the grounds raised in these proceedings, they would face the issue of whether those proceedings should be stayed as an abuse of process. If the court in these proceedings refused to extend the six-month period, there would surely be a strong argument that the plaintiffs should not be permitted to circumvent that decision by issuing proceedings not by way of judicial review raising the same challenge. If we were to hypothesise that the other proceedings challenging the validity of the building consent and development approval had been brought without judicial review proceedings ever being brought, the same issue would arise. Would it be appropriate to permit the plaintiffs to bring those proceedings if they could not satisfy the court that, in proceedings by way of judicial review, they would have obtained an order extending the six-month period? It is arguable that a plaintiff cannot walk around the time limit in r 98.06 by the expedient of issuing proceedings that are not judicial review proceedings: see Clayton v Ralphs (1987) 45 SASR 347 at 354-355 Jacobs J and Xenophon v South Australia (2000) 78 SASR 251; [2000] SASC 327 at [17] Prior J and at [20] Lander J. On this point, some of the reasoning of Lord Diplock in O’Reilly v Mackman [1983] 2 AC 237 has continuing relevance, even though changes wrought by the English Civil Procedure Rules 1998 have led to a change of approach: see Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988.
[141] Hall v City of Burnside [2006] SASC 283; (2006) 102 SASR 298.
[142] Hall v City of Burnside [58].
In Hall Doyle CJ explained that delay had the capacity not only to affect the success of an application for an extension of time but it could also affect the exercise of the discretion to grant relief. His Honour stated: [143]
As McHugh J said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553, the six-month limitation period is 'the general rule'. It is not 'an arbitrary cut off point'. The six-month limit represents a judgment as to an appropriate time limit having regard to the public interest and having regard to the interest of individuals who have an interest in the particular case that arises. A limitation period is imposed, and the length of the period is determined, recognising that the limitation period may result in a cause of action being defeated.
A six-month time limit for proceedings by way of judicial review is common in Australia, and in some jurisdictions the time limit is even shorter: see Aronson, Dyer, Groves, Judicial Review of Administration Action (3rd ed, Lawbook Co, 2004), pp 718-719.
The relatively short limitation period reflects the fact that judicial review is concerned with the validity of decision-making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected. In a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision-making process is a reason why there should be a relatively short period within which any such attack should be mounted.
[143] Hall v City of Burnside [47] - [49].
In Davies v Minister for Urban Development and Planning,[144] an application for summary dismissal was made in respect of an application for a declaration that a planning decision taken some 11 years earlier was invalid. In the course of his reasons for making an order for summary dismissal, Bleby J considered that the delay in bringing proceedings well beyond the time limit prescribed under the relevant rules of the Supreme Court of South Australia for judicial review, was a relevant factor, reflecting as it did the policy that administrative decisions should be challenged promptly (the time limit being six months). Bleby J held that the principles underpinning the requirements in relation to judicial review proceedings remained relevant when determining whether the court's discretion should be exercised so as to grant the declaratory relief sought. His Honour said:[145]
To hold otherwise would create the unsatisfactory situation where one can side-step safeguards placed with respect to the challenge of administrative decisions by way of judicial review, simply by the forensic decision to pursue declaratory relief. Notwithstanding the fact that these proceedings are not instituted by judicial review, they remain a challenge to a purported exercise of a power by a public authority.
And:[146]
Delay in the administrative context is not as concerned with the conduct or purposes of a party as it is with broader administrative concerns. Those concerns relate to the fact that administrative decisions have potentially broad ramifications against many parties, and that administrative decisions should not be afflicted with doubt as to their validity over a significant period of time. It is in that context that a significant passage of time passed is relevant to the exercise of the court’s discretion and to the principle that administrative decisions should be challenged promptly.
[144] Davies v Minister for Urban Development and Planning [2011] SASC 87; (2011) 109 SASR 518.
[145] Davies v Minister for Urban Development and Planning [29].
[146] Davies v Minister for Urban Development and Planning [67].
In Buttrose v Attorney-General (NSW),[147] the New South Wales Court of Appeal was concerned with an application for judicial review in which a declaration rather than a prerogative writ was sought. Beazley P and Leeming JA expressed the view that the three month limitation period that applied under Pt 59 of the Uniform Civil Procedure Rules 2005 (NSW) either applied directly to an application that sought a declaration or informed the court's discretion to grant declaratory relief. Their Honours said:[148]
The substance of the rule is that challenges to the exercise of executive power should be brought reasonably promptly, or else be accompanied by an explanation as to why that did not occur.
...
... just because a plaintiff seeks purely declaratory relief, it does not follow that the ordinary principles relating to judicial review cease to apply.
[147] Buttrose v Attorney-General (NSW) [2015] NSWCA 221; (2015) 324 ALR 562.
[148] Buttrose v Attorney-General (NSW) [13] and [15].
The policy of ensuring that challenges to administrative decisions are made promptly is reflected in the limitation periods applicable to applications for judicial review made under the Rules of the Supreme Court 1971 (WA), (as amended in December 2013). Order 56 r 2 governs the making of an application for judicial review. It provides:
2.Making an application
(1)To make an application, a person must file an application in Form No. 67A.
(2)In one application a person may apply for any or a combination of these remedies -
(a)one or more writs;
(b)either a declaration or an injunction or both;
(c)an order having the same effect as a remedy that could be provided by means of a writ.
...
(4)If an application is made outside the limitation period for the application -
(a)the application must include an application for leave to proceed with the application; and
(b)the applicant must file an affidavit explaining why the application was not made within the limitation period.
Order 56 r 1(1) defines 'limitation period' as follows:
limitation period -
(a)for an application for judicial review of a reviewable decision, means 6 months after the later of -
(i)the date on which the decision is made; or
(ii)the date on which the applicant became aware of it;
(b)for an application for judicial review of reviewable conduct, other than a failure to make a decision, means 6 months after the later of -
(i)the date on which the conduct occurred; or
(ii)the date on which an applicant became aware of it.

The elapse of time in this case

As observed in the introduction, in substance this action is an application for judicial review of the decision to grant mining lease M08/487. It was not contended by the Minister, Quarry Park or Cauldron that the action is an abuse of process and that Wyloo should have sought relief under O 56 r 2 of the Rules of the Supreme Court.
One consequence of Wyloo proceeding by way of an action for declaratory relief rather than an application under O 56 is that it was not required to file an affidavit explaining why the application was not brought within the limitation period. Thus, it was not obliged to disclose when it first became aware of the grant of the mining lease and when it was first aware of the facts which formed the basis upon which it contended the grant was invalid.
In the absence of evidence of when Wyloo knew about the grant of the mining lease and the other relevant facts it is difficult to characterise the elapse of time between the grant of the mining lease and the commencement of proceedings as delay in the sense of knowledge of the circumstances giving rise to invalidity and inaction.
It would be wrong, however, to proceed on the basis that the elapse of time was a neutral factor. As was demonstrated by Ms Daddow's evidence, since 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 asserts against Cauldron, the High Court's decision in Forrest & Forrest v Wilson 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.
In my opinion, it would be fundamentally inimical to the public interest in the sound administration of the 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. Building on the observation made by Bleby J in Davies v Minister for Urban Development and Planning cited earlier, allowing administrative decisions to be challenged after a substantial elapse of time raises concerns that go beyond the private interests of the parties involved and has the potential adverse effect on the public interest which I have described.
As recorded earlier Wyloo was not incorporated until 2015. It is apparent that Wyloo is interested in exploiting the mineral resources to be found in the land that is the subject of mining lease M08/487. Inferentially, at some point between its incorporation and January 2021 it became aware that Quarry Park had not complied with the essential pre-requisites for the grant of a mining lease but it had not disclosed when that was. In my view, the elapse of the time between Wyloo's incorporation and the commencement of the proceedings, 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.
In forming the opinions expressed in the preceding paragraphs I have not ignored the significant force of the submission made by Wyloo that there is a compelling public interest in the 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. In my judgment, however, the public interest inherent in ensuring that challenges to administrative acts are brought promptly is a countervailing one which, in the circumstances of this case, should be accorded precedence.
While it must be accepted that by reason of its failure to comply with the essential statutory requirements for a valid grant Quarry Park was the author of its own misfortune, I do not accept that it would not be prejudiced by making a declaration of invalidity in respect of the mining lease after such a long elapse of time after the grant. To the contrary, the prejudice would be palpable. 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.
Had Wyloo been otherwise successful, I would have refused to grant declaratory relief to Wyloo for the reasons given in the preceding paragraphs.

Inutility

The Minister, Quarry Park and Cauldron argued that if mining lease M08/487 was invalid then the land which it had covered formed part of EL08/2329. Their argument ran as follows. By s 57(2) and (2aa) of the Act the area over which an exploration licence may be granted shall be a block or blocks. By s 57(2d), where an application is made with respect to two 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. By s 57(2e) land is unavailable for exploration if that land is, or was, when the application was made, the subject of a current mining tenement. If declared invalid, the area of mining lease 08/487 would not have been 'unavailable for exploration' within the meaning of s 57(2e). In those circumstances, a question would arise as to whether the grant of the exploration licence was valid despite the incorrect assumption as to the grant of mining lease M08/487 and, if so, whether the area covered the overlapping part of mining lease M08/487, having regard to s 105B of the Act or otherwise.[149]
[149] Third defendant's outline of opening submissions dated 7 May 2021 [86].
The material provisions of s 57 of the Act are as follows:
57.Grant of exploration licence
(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.
I do not accept the submissions advanced by the Minister, Quarry Park and Cauldron as to the operation of s 57 in the context of the counterfactual that mining lease M08/487 is invalid. The area of land covered by the grant of the mining lease was excluded from the exploration licence when granted in 2013 and when renewed in 2018. There is no express provision in the Act which provides 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 my view, there is no basis upon which a provision having such an effect could be implied into the Act.
For completeness, I do not accept that the invalidity of a mining tenement covering an area excluded from an exploration licence on the basis that it was unavailable for exploration affects the validity of the exploration licence. At its highest, as Wyloo submitted, such a circumstance might constitute an irregularity in the grant of the exploration licence, which by reason of the first clause of s 116(2), would not render the exploration licence impeachable or defeasible.

Conclusion

Wyloo's action must be dismissed. I will hear the parties as to the appropriate orders and as to costs.

APPENDIX
1. A declaration that:
(a)the Mining Registrar did not have jurisdiction to recommend the purported application for mining lease 08/487 as the purported application was not accompanied by, as required by section 74(1)(ca)(ii) of the Mining Act 1978 (WA), a mineralisation report prepared by a qualified person or a statement in accordance with subsection (1a);
(b)the Minister (and the Delegate, or any other authorised delegate) did not have jurisdiction to purport to grant the purported application for mining lease 08/487 under sections 71 and 75(6) of the Mining Act 1978 (WA); and
(c)the purported grant of mining lease 08/487 on 12 April 2013 was invalid and of no legal force or effect.

2.A declaration that the land the subject of the purported mining lease 08/487 was at 10 January 2021 Crown land open for mining which was, for the purpose of section 18 of the Mining Act 1978 (WA), capable of being marked out and made the subject of application for prospecting licence 08/783 by Wyloo Metals Pty Ltd.
3.A declaration that the land the subject of the purported mining lease 08/487 which the application for miscellaneous licence 08/250 by Wyloo Metals Pty Ltd 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 Mining Act 1978 (WA) in favour of any purported holder of invalid mining lease 08/487.
4.A declaration that the land the subject of the purported mining lease 08/487 was at 15 April 2021 Crown land open for mining which was, for the purpose of section 18 of the Mining Act 1978 (WA), capable of being marked out and made the subject of an application for prospecting licence 08/804 by Wyloo Metals Pty Ltd.
5.A declaration that part of the land the subject of the purported mining lease 08/487 was at 15 April 2021 Crown land open for mining which was, for the purpose of section 18 of the Mining Act 1978 (WA), capable of being marked out and made the subject of an application for prospecting licence 08/803 by Wyloo Metals Pty Ltd.
6.A declaration that the entry into the sale and purchase agreement between Cauldron Energy Ltd, Quarry Park Pty Ltd, Onslow Resources Ltd, Regent Point Pty Ltd and Anthony Warren Slater made on about 22 December 2020, does not:
(a)constitute a lawful “dealing” with invalid mining lease 08/487; or
(b)otherwise operate to validate invalid mining lease 08/487 which is of no force or effect,
for the purpose of section 116 of the Mining Act 1978 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Research Associate to the Honourable Justice Tottle
22 OCTOBER 2021

83 - 88.