AQUILA STEEL PTY LTD -v- BHP MINERALS PTY LTD [2022] WASC 121 (14 April 2022)

Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421

Jack v Chief Executive Officer (Housing) (No 2) [2021] NTSC 81

Jebb as trustee for Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121

Josephson v Walker [1914] HCA 68; (1914) 18 CLR 691

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2020] WASC 40

Mineralogy v Sino Iron Pty Ltd [No 2] [2021] WASCA 105

Noosa Shire Council v T.M. Burke Estates Pty Ltd [2000] 1 QdR 398

Pilbara Iron Ore Pty Ltd v Ammon [2008] WASC 108

1. The plaintiffs commenced this action by writ indorsed with statement of claim on 30 April 2021.
2. By chamber summons, dated 9 July 2021, the first to third defendants applied for orders that the plaintiffs' statement of claim be struck out in its entirety and the action be permanently stayed or dismissed on the basis that it is vexatious or an abuse of the process of the court.[1] The defendants also applied for an extension of time for making the application.
3. The application was made pursuant to O 20 r 19(1)(b) or (d) of the Rules of the Supreme Court 1971 (WA), and the court's inherent jurisdiction. The defendants initially relied on four grounds:

(a) The action has been brought for an illegitimate purpose, namely: to circumvent administrative proceedings underway but not yet completed under reg 120A(5) of the Mining Regulations 1981 (WA); further or alternatively, to provide the plaintiffs with a remedy in respect of those administrative proceedings contrary to the statutory scheme in the Mining Act 1978 (WA) and the Mining Regulations.
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> (b) Further or alternatively, the action is unjustifiably oppressive, and vexatious, to the first to third defendants because it requires them to relitigate issues that are essentially identical to the issues already litigated before the Warden.
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> (c) Further or alternatively, the action is unjustifiably oppressive, and vexatious, to the first to third defendants because the plaintiffs have, concurrently with this action, exercised their right to apply for judicial review of the Warden's recommendation.
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> (d) Further or alternatively, for the same reasons as set out in grounds (a) to (c) above, the prosecution of the action would bring the administration of justice into dispute.

4. The defendants did not press the contention that the action was brought for an illegitimate purpose, although they maintained the submission that the plaintiffs' remedy lay in the statutory scheme under the Mining Act and the Mining Regulations, and the ongoing administrative processes were relevant factors in the claim that the action is an abuse of process.

1. The parties filed extensive affidavit evidence.
2. The defendants relied on:

(a) Two affidavits of Danilo Dragovic, sworn 9 July 2021 and 29 October 2021. Mr Dragovic is a partner in the law firm acting for the defendants, and is responsible for the carriage of this matter.
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> (b) An affidavit of Bree Christie Keith, an employee of the first defendant, sworn 28 October 2021.
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> (c) An affidavit of Annette Sophie Thomas, an employee of the first defendant, sworn 29 October 2021.
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> (d) An affidavit of Christopher Clegg, previously an employee of Statewide Tenement & Advisory Services Pty Ltd, affirmed 27 January 2022.

(a) An affidavit of Robert Alastair Beeck, the General Manager of the second plaintiff, sworn 24 September 2021.
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> (b) Two affidavits of Shane Michael Murphy, affirmed 17 December 2021 and 24 December 2021. Mr Murphy is a partner in the law firm acting for the plaintiffs, and is responsible for carriage of the matter.

4. The second affidavit of Mr Dragovic, and the affidavits of Ms Keith and Ms Thomas are directed to the searches undertaken by the defendants for relevant documents to support the submission that it is very unlikely that any order for discovery in these proceedings would yield evidence that was not available to the parties at the time of the hearing before the Warden.

1. The parties hold adjacent mining tenements around the area of Rocklea Station, in the Pilbara region of Western Australia.
2. The plaintiffs hold exploration license E47/1413-I, and mining lease M47/1494-I, which was granted by way of partial conversion of E47/1413-I.
3. The defendants hold mining leases mining leases M47/685-I, M47/686‑I, M47/688-I and M47/689-I. The parties have referred to these four leases as the Neighbouring Tenure for the purposes of these proceedings and I will use that term. The defendants also hold other mining tenements in the area.
4. The Neighbouring Tenure and other leases held by the defendants cover the area of E47/16-I. The area of E47/16-I corresponded to the area of Temporary Reserve TR 4268H, which was reserved under the Mining Act 1904 (WA).
5. When TR 4268H was created in 1967, its area was described by reference to distances and bearings from a datum peg '10.0 miles at a bearing 259°00' from Rocklea Homestead'.
6. The boundaries of the various tenements had not been surveyed before 2018.
7. In May 2018, the Department of Mines, Industry Regulation and Safety directed the plaintiffs to survey M47/1494. In September 2018, the plaintiffs arranged for a survey as directed. Following information provided to the Department by the plaintiffs regarding the position of Rocklea Homestead in 1966, the Department instructed the surveyor to base amended boundary calculations on the position of the new homestead in order to ascertain the ground available to the plaintiffs' mining lease.[2] The circumstances in which that instruction was given were dealt with by the warden and I set them out below.
8. The survey depicted the eastern boundary of the Neighbouring Tenure as being further to the west than it was depicted on the Tengraph database, a tenement mapping system maintained by the Department of Mines, Industry Regulation and Safety.
9. In November 2018, the defendants filed an objection to the survey, pursuant to reg 120A of the Mining Regulations. That objection was to be determined by the Minister, following the recommendation of the Mining Warden.
10. On 31 July 2019, the defendants commenced civil proceedings in the Warden's Court by filing a plaint pursuant to reg 121 of the Mining Regulations. The Warden's Court has jurisdiction under s 130(1) to hear and determine actions 'in respect of ... the area, dimensions, or boundaries of mining tenements', with a corresponding power in s 134(1) to make orders for 'the determination of the area, extent, dimensions or boundaries of any mining tenement'.
11. On 18 September 2019, the defendants were advised by email that the warden had determined that the hearing of the survey objection was to proceed and invited the parties to confer with respect to adjournment of the plaint.
12. The warden heard the objection between 24 and 25 September 2019, with written closing submissions filed in October 2019.
13. On 4 November 2020, the warden provided the parties with a copy of his recommendation to the Minister.
14. On 14 May 2021, by consent, the plaint proceedings in the Warden's Court were withdrawn.

1. Although the warden was acting administratively, and not in Warden's Court, the process followed included:

(a) the filing of an objection and amended objection which, in effect, pleaded the defendants/objectors' case regarding the proper location of the datum for the plaintiffs' exploration licence and the proper boundaries of the neighbouring tenements;
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> (b) the filing of further and better particulars of the amended objection;
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> (c) the filing of a response to the objection which, in effect, pleaded the plaintiffs/tenement holders' case regarding the proper boundaries of the neighbouring tenements;[3]
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> (d) the filing of opening and closing submissions;
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> (e) evidence was received at a hearing in which each party was represented by senior counsel;
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> (f) evidence was on affidavit with deponents available for cross‑examination if required;
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> (g) the warden provided comprehensive written reasons for his recommendation to the Minister.

2. Not all processes that attend judicial proceedings were available - for example, there was no discovery and no ability to obtain documents on subpoena. But it could not be said that the process denied any party the opportunity to put their case and to respond to what was put against them.
3. The 'initiating process' was the defendants' objection, later amended.[4] In substance, the defendants contended that the survey incorrectly determined the location of the datum for E47/16-I. As a result, the survey incorrectly included land the subject of the defendants' (Objectors) tenure and registering the survey would prejudice or interfere with their rights pursuant to s 117 and s 85 of the Mining Act.
4. In the amended objection, the defendants further raised the contention that the Department was estopped from registering the survey. It is not necessary, in these reasons, to consider whether the warden, acting administratively, had power to consider a claim of estoppel.
5. The defendants contended that the warden should recommend that:

(a) registering the Survey should be rejected;
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> (b) the Survey be reissued with correct datum location of E47/16-I;
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> (c) the Survey be reissued to exclude any land within the Objectors' Tenure;
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> (d) an approved surveyor, other than the surveyor who conducted the survey, should be appointed and instructed to survey the corners and boundaries of the Objectors' Tenure as originally marked out using such posts and trenches as can be located and identified and by reference to the location of the Original Rocklea Homestead;
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> (e) a representative for the Objectors should accompany any surveyor who conducts any further survey of M47/1494-I.

6. In response, the plaintiffs (tenement holders) contended that the land in question was never in fact the subject of the temporary reserve, TR 4286H, and therefore never the subject of M47/685-I, M47/686-I, M47/688-I and M47/689-I. The plaintiffs contended that the conduct of the survey confirmed that the land the subject of their tenements does not injuriously affect any existing tenements or derogate from rights granted or interfere with activities on those tenements.

1. After a hearing over four days in September and October 2019, including two days of closing submissions, the warden delivered comprehensive written reasons[5] for recommending that the Minister:

(1) Uphold the Objection;

(2) Set aside the survey of Mining Lease 47/1494-I dated 10 October 2018; and

(3) Direct that the boundaries of Mining Lease 47/1494-I be delineated on the basis that it not include land that was formerly the subject of Temporary Reserve 4286H as delineated by reference to the designated distance and bearing from the Original Rocklea Homestead (Rocklea Homestead).

1. In his reasons for the recommendation the warden set out how the surveyor came to be given his instructions, noting that the surveyor had been involved in marking out M47/1494 in late 2013, and also in marking out the defendants' mining leases, including in 2005.[6]
2. The Department wrote to the plaintiffs on 21 June 2018, directing that a survey be conducted and instructing that the datum of TR 4286H, and therefore E47/16, was based on the Old Rocklea Homestead.[7] Following representations from the plaintiffs, and a meeting with them, the Department directed the surveyor to locate the New Rocklea Homestead on which to base the amended boundary calculations, prior to survey instructions being issued.[8] Subsequently, the Department issued instructions to the surveyor which included, on a post-it note, 'You can do the calc from Rocklea Homestead (new) if you wish'.[9]
3. The warden then identified the issue before him in this way:

[106] The Objectors do not contend that the Surveyor erred in any technical respect so far as the process of carrying out the survey was concerned. The objection asserts the Surveyor used the wrong reference point for the Rocklea Homestead, hence the boundaries of the area of land to which the Affected Tenements relate has not been correctly delineated and the Disputed Area ought to remain part of the Affected Tenements.

[107] In my view, there is no question that the Surveyor brings specialist knowledge to bear as to the process of conducting a survey including locating the true position of landmarks on the ground. However, this case does not involve locating the true position of a landmark, the actual positions of the [New Rocklea Homestead] and [Old Rocklea Homestead] not being in dispute.

[108] The essential question concerns which of the [New Rocklea Homestead] or [Old Rocklea Homestead] is the correct reference point. Depending on how that question is characterised it either involves a question of the construction of the minute(s) creating TR 4286H and what, if any, extrinsic evidence can be considered or primarily a factual determination as to which of the [New Rocklea Homestead] or [Old Rocklea Homestead] best fits the description of 'Rocklea Homestead'.

1. The warden then dealt with the parties' contentions regarding the proper construction of the documents granting the temporary reserve and subsequent tenements to the defendants.
2. The warden addressed the factual issue by considering the available evidence to identify the landmark that meets the description 'Rocklea Homestead'.
3. Finally, the warden considered the relevance of use and occupation of the tenements, and the parties' contentions regarding whether the Minister could consider the public interest.

1. In their statement of claim, the plaintiffs pleaded the following allegations.

1. On or around 26 May 1967, the predecessors in title to the defendants applied for the constitution of a temporary reserve and the right to occupy that temporary reserve to prospect for iron ore, pursuant to s 276 of the Mining Act 1904 (WA). The application was with respect to an area described as 'Area 6'.[10]
2. 'Area 6' was described by reference to distances and bearings from a datum peg '10.0 miles at a bearing 259°00' from Rocklea Homestead'.[11]
3. On or around 31 July 1967, the Under Secretary for Mines recommended to the Minister that the application be approved.[12]
4. On or around 4 August 1967, the Minister:

(a) accepted the recommendation;
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> (b) temporarily reserved Area 6;
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> (c) constituted temporary reserve 4286H under the 1904 Act; and
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> (d) pending approval by the Governor, granted a right to occupy the Temporary Reserve and prospect for iron ore.[13]

5. On or around 4 October 1982, the Minister granted E47/16-I, in respect of Area 6, to the defendants' predecessors in title by way of conversion of the Temporary Reserve under the transitional provisions to the Mining Act 1978.[14]
6. Between about 4 October 1982 and 6 June 2014, the land in Area 6 was not open for mining and unavailable for exploration, pursuant to s 18 and s 57 of the Mining Act 1978.[15]
7. On or around 24 May 2004, the first plaintiff applied for an exploration license in relation to 32 blocks of land, that included land in respect of which the defendants' exploration license, E47/16-I, was granted. On or around 23 March 2005, the Minister granted the application.[16]
8. Between August 1993 and August 1998, the present defendants became the holders of E47/16-I.
9. On or around 6 June 2014, the Minister granted the Neighbouring Tenure to the defendants, by way of partial conversion of E47/16-I.[17]

1. On or around 14 May 2018, the Minister granted M47/1494‑I to the plaintiffs by way of partial conversion of E47/1413-I.[18]

1. Between 26 May 1967 and 4 August 1967, Rocklea Station was the subject of a pastoral lease granted to three members of the Troy family - Frank Troy, Allan Ross Troy and Kenneth Ernest Troy.[19]
2. There were two homesteads on the station: the new Rocklea Homestead - a substantial homestead - erected in 1966; and the original Rocklea Homestead, which was built sometime before 1943, and which was 'modest and insubstantial'. The two homesteads are about 390 metres apart.[20]
3. Kenneth Ernest Troy and his wife and children 'were domiciled at the new Homestead', and no one was 'domiciled' at the original Homestead.[21]

1. The plaintiffs contend that, on its proper construction, the reference in the Temporary Reserve to Rocklea Homestead is a reference to the New Homestead.[22]

1. By application pursuant to O 56 of the Rules of the Supreme Court, the plaintiffs seek review of:

The [mining warden's] recommendation to the Honourable Minister for Mines and Petroleum in Aquila Steel Pty Ltd v BHP Billiton Minerals Pty Ltd [2020] WAMW 21 that the Minister:

1. uphold the objection of BHP Minerals Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd and Mitsui Iron Ore Corporation Pty Ltd;
2. set aside the survey of mining lease 47/1494-I (M 47/1494-I) dated 10 October 2018; and
3. direct that the boundaries of M 47/1494-I be delineated on the basis that it not include land that was formerly the subject of Temporary Reserve 4286H (TR 4286H) as delineated by reference to the designated distance and bearing from the original Rocklea Homestead.
4. The application is for a writ of certiorari and a declaration on four grounds:

The respondent fell into jurisdictional error in that:

1. In construing the Minister's constitution of temporary reservation TR 4286H (Temporary Reservation) and making his consequential recommendation as to the survey of M 47/1494-I, the respondent had regard to irrelevant matters that the Mining Act required him not to consider, specifically:

1.1.1 not incorporated into the Temporary Reservation by necessary implication;

1.1.3 not reasonably available to a reasonable reader of the instrument of reservation on 4 August 1967 (the date of reservation); and

1.2 the Governor's confirmation of the Minister's reservation.

1. In construing the Temporary Reservation and making his consequential recommendation as to the survey of M 47/1494-I, the respondent failed to consider relevant matters that the Mining Act required him to consider, specifically:

2.1 the building that a reasonable reader visually examining the physical characteristics of the landmark in the period between about 26 May 1967 - 4 August 1967 would identify as the Rocklea Homestead; and

2.2 the expertise, experience, and statutory role of the surveyor who surveyed the boundaries of M 47/1494-I.

1. The respondent misapprehended or disregarded the nature or limits of his power in regulation 120A(5) of the Mining Regulations 1981 (WA) by applying a presumption based on long-term use and occupation to the survey of boundaries.
2. The respondent misapprehended or disregarded the nature or limits of his power in regulation 120A(5) of the Mining Regulations by recommending that the Minister direct the delineation of the boundaries of M 47/1494-I.
3. The judicial review proceedings are concerned only with the lawfulness of the proceeding before the warden and whether his recommendation was within power.
4. Unless the court sets aside the warden's recommendation to the Minister as having been made outside jurisdiction, the Minister must, pursuant to reg 120A(5), determine the dispute.

The principles to be applied in determining whether an action is an abuse of process

1. The principles regarding whether an action is an abuse of process are settled, but it remains an area in which different judges may reach different conclusions as to their application. The Court of Appeal has recently considered the authorities and the principles to be extracted from them.[23]
2. The principles relevant to this action, as I understand them, are as follows.
3. First, the plaintiffs have regularly invoked the jurisdiction of the court by filing a writ seeking relief which is within the power of the court to grant, and have a prima facie right to insist on the court exercising that jurisdiction.
4. Second, the court has power to stay the plaintiffs' action as an abuse of power to protect the integrity of its own processes.
5. Third, the power to stay the proceedings on the ground that they are an abuse is exercised with caution and only in 'the most exceptional or extreme cases'. It is a 'measure of last resort' when there is no other way to protect the integrity of the system of justice.
6. Fourth, the power to stay is exercised when either of two conditions is met: where the plaintiffs' use of the court's processes would cause unjustifiable oppression to the defendants; or where the plaintiffs' use of those processes would bring the administration of justice into disrepute. The varied circumstances in which the power might be exercised do not permit an exhaustive statement of when those conditions would be met.
7. Fifth, the question is a broad, merits based judgment which takes account of the private interests of the parties, the public interest, and all of the facts relevant to whether the plaintiffs are misusing or abusing the processes of the court. The decisive factor is the objective effect of the plaintiffs' conduct.
8. Sixth, the remedy of a stay for abuse may be ordered if the court finds that the plaintiffs could and should have 'litigated' the claims arising in this action in the earlier proceedings, even where the plaintiffs would not, in this action, be bound by an estoppel.

1. Although the authorities are generally concerned with actions brought after earlier proceedings in a court, the principles of abuse of process have been applied where earlier proceedings were conducted in an administrative tribunal.
2. In Coffey v Secretary, Department of Social Security, the appellant, in proceedings in the Federal Court, claimed an entitlement to withheld benefits where he had sought review of the decision to withhold those benefits by internal review by the Department, the decision had been affirmed by the Social Security Appeals Tribunal, and an application to the Administrative Appeals Tribunal had been dismissed. While the matter had not previously been subject of judicial proceedings, the Full Court of the Federal Court held maintaining the claim was an abuse of process where the Parliament had made available 'a comprehensive and multi‑level process for the review of decisions under the Act' and the appellant had availed himself of three reviews under those procedures.[24]
3. The defendants also referred to the decision in Jack v Chief Executive Officer (Housing) (No 2). Chief Justice Grant referred to the principle that 'where the same statute creates a new right and specifies the remedy, that remedy is exclusive'.[25] His Honour held that the legislature intended that rights and remedies arising from the provisions of the Residential Tenancies Act 1999 (NT) be dealt with exclusively by the Northern Territory Civil and Administrative Tribunal at first instance.[26] His Honour referred to two authorities. First, the presumption stated by Isaacs J in Josephson v Walker that where the same statute creates a new right and specifies the remedy for enforcing it, the remedy is exclusive.[27] Second, the principle stated by Walsh J in Forster v Jododex Australia Pty Ltd:

In my opinion, when a special tribunal is appointed by a statute to deal with matters arising under its provisions and to determine disputes concerning the granting of rights or privileges which are dependent entirely upon the statute, then as a general rule and in the absence of some special reason for intervention, the special procedures laid down by the statute should be allowed to take their course and should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute.[28]

1. Chief Justice Grant found that proceedings brought in the Supreme Court were an abuse of process, relying on three circumstances: first, it was oppressive for the defendant to be faced with two proceedings in different jurisdictions seeking the same relief; second, it impaired the administration of justice for a plaintiff to commence parallel proceedings in the Supreme Court in relation to a matter where internal review proceedings had already been raised and determined adversely to the plaintiff at first instance in the proper forum; and third, it was contrary to the statutory scheme governing residential tenancies.[29]
2. The comments of Walsh J in Forster v Jododex Australia Pty Ltd were also considered by the Queensland Court of Appeal in Noosa Shire Council v T.M. Burke Estates Pty Ltd.[30] In that case, the other body exercising jurisdiction was a specialist court, the Planning and Environment Court. The Court of Appeal addressed the issue, consistently with what had been said in Forster v Jododex Australia Pty Ltd, as whether it was a correct exercise of the court's discretion to entertain a claim for declaratory relief when there were proceedings before the Planning and Environment Court.
3. In Pilbara Iron Ore Pty Ltd v Ammon,[31] Templeman J exercised his discretion to stay proceedings in the Supreme Court as an abuse of process where the Warden's Court had jurisdiction to deal with the matter and proceedings had been commenced by plaint in that court. His Honour had regard to two particular matters going to the public interest: first, that the Parliament had established the Warden's Court to deal with disputes of the present kind; second, the interest in permitting a party who has chosen to litigate in a particular forum to continue where he began.
4. More generally, the defendants referred to Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5),[32] and to the comments in Jebb as trustee for Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd[33] and Mineralogy Pty Ltd v Sino Iron Pty Ltd,[34] and the public interest in a matter not being relitigated.
5. The defendants did not submit that the boundaries of the tenements must be determined by the process under the Mining Act, or that the plaintiffs' proceedings would be an abuse if they had been brought immediately on the defendants objecting to the survey. The defendants submitted that the vexation arose from the plaintiffs running their case regarding the measurement of the boundaries from the New Rocklea Homestead to completion before the warden, and only commencing the Supreme Court proceedings when the administrative process was complete and the warden made an unfavourable recommendation.
6. The defendants further submitted that, in looking at all of the circumstances relevant to whether the bringing of these proceedings is vexatious, the court should consider the conduct of the plaintiffs in the proceedings before the warden. Specifically, the defendants referred to the plaintiffs' position, expressed in submission to the warden, that it was appropriate that 'the dispute as to the boundary of the mining lease be determined by the prescribed process [under reg 120A] and not the plaint in the Warden's Court'.[35]
7. The plaintiffs submitted that for there to be an abuse of process, it is necessary that there be finality in the earlier proceedings. That is, the plaintiff submitted that the decision of the warden did not formally determine anything. It merely resulted in an administrative recommendation. The legislature had not given to the warden the power to determine the rights of the competing parties under the Act, by the process under reg 120A.
8. The plaintiff submitted that the statutory scheme under the Mining Regulations is not exclusive. There is nothing to demonstrate a legislative intention that boundary disputes must always and only be determined by the Minister. In particular, the plaintiffs referred to the provisions in pt VIII of the Act giving the Warden's Court jurisdiction to judicially determine the boundaries of tenements.[36]
9. The plaintiffs further argued that the determination to be made by the Minister is nothing more than the outcome of the objection. Counsel submitted that, properly construed, reg 120A, deals with two matters: disputes arising in the surveying process; and the result of the survey. Counsel submitted that the objection to be determined by the Minister is to the survey, 'and not for the purposes of determining the true boundaries of the mining tenement'.[37]
10. To resolve this matter, it is necessary to analyse the role of surveys under the Mining Act and the nature of the dispute to be determined by the Minister.

1. The provisions relating to exploration licenses are governed by the requirement that an exploration license may only be granted in respect of a block or blocks of land as described in s 56C. The land in respect of which the licence is granted may comprise part of a block if the rest of the block consists of land that is the subject of a current mining tenement and unavailable for exploration.[38]
2. By s 58(2a):

On an application for an exploration licence or on an exploration licence being granted the land affected is not thereby required to be surveyed, but where a dispute arises with respect to the position of such land or the boundaries or any boundary thereof the warden or Minister may require a survey to be made of the boundaries or the boundary in order to settle the dispute.

1. Section 70G makes similar provision for the settlement of disputes in relation to retention licences.
2. There is no equivalent provision regarding mining leases.
3. Part IV div 3 governs mining leases, including the application for and grant of a mining lease.
4. Section 71 provides:

Subject to this Act, the Minister may, on the application of any person, after receiving a recommendation of the mining registrar or the warden in accordance with section 75, grant to the person a lease to be known as a mining lease on such terms and conditions as the Minister considers reasonable.

1. Section 74(5) provides that an application for a mining lease 'shall be made by reference to a written description of the area of the land in respect of which the lease is sought, and be accompanied by a map on which are clearly delineated the boundaries of that area'.
2. By s 79:

(1) Where a person has applied for a mining lease and has been notified in writing by or on behalf of the Minister that the Minister has granted the mining lease to which the application relates, the applicant shall be deemed to be the holder of the lease comprising the land in respect of which the lease is granted as from the date of the written notification.

(2) Where a written notification is given under subsection (1) the term of the lease shall commence from the date of the written notification.

1. Land the subject of a mining lease shall be surveyed, but it shall not be necessary for the survey to be carried out prior to the granting of the lease.[39] Every mining lease is granted subject to the condition that the lessee will arrange and pay for a survey 'within the prescribed time and in the prescribed manner'.[40]
2. Section 83(1) provides:

(1) Every mining lease -

(a) shall be dated as of the day of the notification by the Minister under section 79; and

(b) shall be executed by the Minister.

1. The prescribed instrument of lease for a mining lease, Form 8 in sch 1 of the Mining Regulations,[41] provides for description of the land in relation to which the lease is granted by reference to a Survey Diagram.
2. Before an application for a mining tenement other than an exploration licence, a retention licence or a miscellaneous licence is made, the land in relation to which the mining tenement is sought shall be marked out in the prescribed manner.[42]
3. The grant of a mining tenement 'shall be deemed to have been made subject to a condition that the land applied for is found to have been available for the purposes of that grant after a survey has been made of the tenement'.[43] Relevantly, land is not available for grant unless, when the application was made, it was not the subject of a current mining tenement.
4. I was told from the bar table at the hearing of this application, by practitioners with practical knowledge of the operation of the Act, that no instrument of lease has been issued for the defendants' tenements, and that situation is not uncommon. Further, as this case demonstrated, the survey of boundaries may not be carried out for a very long time. The tenements granted to the defendants were not surveyed, and the common boundary with the plaintiffs' tenements was surveyed only in 2018 when the plaintiffs were required to survey their mining lease.
5. Part V div 1 of the Mining Regulations provides generally for the marking out of mining tenements. Regulation 59 prescribes the manner of marking out tenements. Regulation 61 provides specifically for how land, the boundaries of which are identical with surveyed land, must be marked.
6. By reg 64, an application for a mining tenement shall be lodged within 10 days of marking out. The boundaries of the tenement applied for shall be described in the manner prescribed in reg 66.
7. Part V div 3 provides for boundary marks. The applicant for, or holder of, a mining tenement is required to maintain posts, trenches or other sufficient boundary marks,[44] and the holder is required to identify the boundaries for any person requiring the information.[45]
8. Part VI of the Mining Regulations provides for surveys. The regulations are made pursuant to the specific power in s 162(2)(ka) to make regulations, 'to provide for any matter relating to the surveying of mining tenements.'[46]
9. Regulations made pursuant to par (ka)(iii) may provide for:

The hearing by the warden of disputes arising during the course of that surveying concerning the positions of pegs or otherwise, or of objections to the survey of a mining tenement or of land the subject of an application for a mining tenement, and the determination by the Minister of those disputes or objections.[47]

1. Regulation 116 defines terms, including mining survey:

mining survey means survey required under the Act or these regulations in respect of the boundaries of the area of land to which a tenement relates.

1. Under the regulations, surveys are to be conducted by approved licensed surveyors.
2. By reg 118, for applications lodged before 1 July 1991, the Director[48] was required to arrange for a mining survey of a relevant tenement to be made, as soon as practical:

(a) when a mining survey is ordered to be made under section 47(1), 58(2)(b) or 70G(1) of the Act; or
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> (b) subject to section 80 of the Act, after the lodging of an application for a mining lease; or
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> (c) subject to section 80, as read with section 90, of the Act, after the lodging of an application for a general purpose lease; or
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> (d) when a mining survey is requested by the Minister or a warden's court for the purpose of determining any matter relating to the boundaries of a tenement.

3. For applications lodged after 1 July 1991, a survey of a mining lease may be arranged and carried out by the holder at any time, but the Director may give written notice directing that a survey be arranged and carried out.[49]
4. The applicant for a tenement or the tenement holder must make themselves available to point out to the surveyor the corner posts or other boundary marks.[50]
5. By reg 120:

(1) Subject to this regulation, an approved surveyor shall carry out a mining survey in respect of -

(a) a tenement other than an exploration licence so as to conform with -

(i) the land indicated by the applicant in marking out that tenement; and

(ii) the prescribed shape referred to in section 105(1) of the Act;

(b) an exploration licence or an application therefor to conform with the substance of the description thereof.

(2) If, in the case of an application for a tenement other than an exploration licence, an adjustment made to achieve conformity under sub-regulation (1) would affect adjoining interests, the approved surveyor concerned shall survey the relevant tenement as strictly in accordance with its marking out as the circumstances permit.

(3) If an approved surveyor finds that a tenement being surveyed by him encroaches on another tenement having priority in application over the first-mentioned tenement, the approved surveyor shall excise from the area of the first-mentioned tenement the area of that encroachment.

(4) The Director shall provide an approved surveyor with details relating to priority of adjoining tenements, for the purposes of complying with sub-regulation (3), when requested to do so by the approved surveyor.

101 By reg 120A, as it was at the time of the defendants' objection:

(3) After a mining survey, the Director shall serve by post on the persons referred to in regulation 118A(1), a copy of the documents referred to in regulation 120E and a covering letter.

(3a) A person who has been served under sub-regulation (3) may, within 30 days of the date of the covering letter, lodge an objection as to the mining survey and the objection shall be lodged in the form of Form 16.

(4) A dispute or objection referred or lodged under this regulation shall be heard by the warden.

(5) When the warden has heard a dispute or objection under sub-regulation (4), he shall forward the notes of evidence[51] and his recommendation relating to the dispute or objection to the Minister, who shall determine the dispute or objection.[52]

1. The persons referred to in reg 118A(1) are the applicant for or holder of the tenement concerned, and an applicant for or holder of any adjoining tenement.
2. Regulation 120E provides that an approved surveyor shall cause to be prepared a report in the form of Form 44. Form 44 requires the surveyor to report whether the boundaries surveyed are in accordance with the holder's/applicant's markings; whether the holder/applicant attended and is satisfied with the position of the survey boundaries; whether adjoining land tenures have been located as instructed; and whether adjoining tenement holders/applicants attended and are satisfied with the position of the survey boundaries.
3. By amendment to the regulations in 2019, reg 120A(5) was repealed and replaced with the following:

(5) When the warden has heard a dispute or objection under sub-regulation (4), the warden's recommendation relating to the dispute or objection must be forwarded by the warden to the Minister and the Minister must determine the dispute or objection.

1. The plaintiffs found some significance in the words of reg 120A(5) before amendment, and the subsequent removal of the reference to providing notes of evidence. With respect, the point escapes me. Since reg 163 was inserted in 2007, the evidence before the warden in proceedings under pt IV of the Act must be either recorded or transcribed. Counsel for the plaintiffs submitted that these proceedings were not under pt IV, but stand alone as proceedings under reg 120A. I am not sure that is correct, but it is not necessary to decide the question. When hearings before the warden are transcribed (as they were in this case), a record is available and the warden's notes of evidence have lost their importance.

1. Although I have set out the dispute in some detail, in my opinion, the resolution of this application turns on a limited point of statutory construction.
2. The plaintiffs submitted that it is apparent that the Parliament did not intend, on an objection under reg 120A, that the warden would make findings on issues of fact or law that would be treated as final and binding (for any relevant purpose). In this submission, the plaintiffs identified the critical question.
3. The recommendation of the warden cannot be considered in isolation, but is part of a statutory process in which the Minister determines the dispute or objection. The Minister's decision is final, but it is necessary to identify what it is that the Minister decides.
4. Section 105 requires that the land in relation to which the application for a mining tenement is made, other than an application for an exploration licence, a retention licence or a miscellaneous licence, be marked out before the application is made. In the case of a mining lease, if the area of land in respect of which the lease is granted is less than that sought, the holder of the lease is required to mark out the boundaries of the area granted as soon as practicable after the grant of the lease.[53]
5. It is not necessary to mark out the land in relation to which an application is made for an exploration licence, but the applicant must comply with s 58(2) and reg 64(1a) identifying the blocks for which the application is made. The blocks are identified by reference to the graticular sections provided for in s 56C.
6. In conducting a mining survey, the surveyor is required to carry out the survey so as to conform with the land indicated by the applicant in marking out the tenement or, in the case of an exploration licence, the substance of the description of the land. The surveyor produces a report that states that the boundaries have been surveyed in accordance with the regulations, and the boundaries are in accordance with the markings.
7. The dispute in this case turns on whether the surveyor should have located the datum peg referred to in the 1967 reservation by reference to the old or the new homestead. That question was logically and practically antecedent to the survey of the boundaries of the plaintiffs' tenement. The surveyor was not authorised under the legislation to decide it. It appears from the reasons of the warden that someone in the Department made that decision (it is not clear by what authority) and instructed the surveyor he may use the new homestead as the reference. It is not a matter that the legislation intends should be finally determined by the Minister's decision on an objection to the survey. Where such a question arises, it should be determined judicially under pt VIII of the Act, or in this court.
8. The action in this court cannot be held to be vexatious or an abuse of the process of the court in seeking to have the question decided judicially. It is not a relitigation of issues, in the sense required, because the issues raised in the action cannot be finally determined by the administrative process under reg 120A. The fact that the plaintiffs participated in the process before the warden does not affect that conclusion.
9. The action does not become unjustifiably oppressive because the plaintiffs have concurrently exercised their right to apply for judicial review. If the plaintiffs had not brought that action, or some other proceeding to restrain the Minister, the Minister would have been required by reg 120A(5) to determine the dispute or objection to the survey.
10. Further, the issues to be decided in the judicial review application are different from those raised in the action.
11. I am satisfied that the action is not an abuse of process. The defendants' application will be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CITATION : AQUILA STEEL PTY LTD -v- BHP MINERALS PTY LTD [2022] WASC 121 (S)

HON WILLIAM JOSEPH JOHNSTON MLA IN HIS CAPACITY AS MINISTER FOR MINES AND PETROLEUM OF THE STATE OF WESTERN AUSTRALIA

Costs - Special costs orders - Where defendants brought application to strike out and permanently stay or dismiss action - Whether threshold test for special costs order met - Turns on own facts

Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208

Crawley Investments Pty Ltd v Elman [2014] WASC 233

Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95

Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76

The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345

1. On 14 April 2022, I dismissed the defendants' application to strike out and permanently stay or dismiss this action as an abuse of process.[54] The plaintiffs have now applied for special costs orders pursuant to s 280(2) of the Legal Profession Act (WA).
2. The application was an application in chambers, with costs subject to item 10 in the Legal Practitioners (Supreme and District Courts) (Contentious Business) Determination 2020.
3. By s 280(2) of the Legal Profession Act:

... if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following -

(c) remove limits on costs fixed in the determination;

1. The principles applicable to making a special costs order pursuant to s 280(2) are now well established.[55] The threshold question is whether, in the court's opinion, the amount of costs allowable under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter.
2. A special costs order does not replace the process of taxation or assessment, but modifies the limits within which that process takes place: 'Even where orders are made under s 280(2) of the Act, it nevertheless remains the task of the taxing officer to consider the reasonableness of and necessity for the work undertaken, and to make a judgment about the remuneration reasonably required.'[56]
3. The reference to limits in the determination includes limits on hours, numbers of practitioners, and hourly and daily rates.
4. The plaintiffs seek the following orders:

Pursuant to s 280(2) of the Legal Profession Act 2008 (WA), any taxation of the plaintiffs' costs of or incidental to the first, second and third defendants' chamber summons filed 9 July 2021 (awarded by order 2 of the orders made by the Honourable Justice Allanson on 14 April 2022) is to be undertaken:

(a) without reference to the limits provided in item 10 of Table B in clause 13 of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (Scale);

(b) without reference to the hourly rates and daily rates provided for practitioners (senior, junior and restricted), clerks/paralegals, and senior counsel in Table A in clause 11 of the Scale; and

(c) including reasonable allowances for work undertaken by senior counsel and junior counsel.

1. The first, second and third defendants pay the plaintiffs' costs of and incidental to the plaintiffs' application for these special costs orders, to be taxed if not agreed.
2. The defendants do not oppose the making of a special costs order in terms of proposed order 1(a), with two qualifications. First, they submit that no allowance should be made for costs charged by Marcus Solomon SC - the plaintiffs' original counsel before his Honour's appointment to this court. Second, they submit that no evidence has been put forward to justify an order lifting the hourly and daily rates for practitioners as set out in Table A of the Determination. That is, the defendants do not oppose an order that would allow an increase in total time and in the number and experience of practitioners, but oppose an order removing limits on the hourly or daily rates of those practitioners.
3. The defendants also did not oppose the making of a reasonable allowance for senior and junior counsel, subject to the qualification regarding the allowance for the plaintiffs' first senior counsel.
4. The power of the court to make an order under s 280(2) is enlivened by the court's opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter. The court, in my experience, will commonly act on the agreement of the parties that the case falls within the section. I have, in any event, formed the required opinion. The importance of the matter to the parties is clearly established. It was not particularly complex legally. But the factual material was extensive. The legal questions could only be properly addressed after consideration of a large volume of documents. The allowances in the determination are inadequate.
5. With regard to costs of the plaintiffs' senior counsel, the defendants submit that, without an appropriate order or direction from the Court, a taxing officer may not be alive to the issue concerning the change in senior counsel or the significance of the issue. The contention appears to severely underestimate the ability and common sense of the registrars of the court who are the taxing officers. And I can infer with some confidence that the defendants will alert the taxing officer to the issue. The simplest and most convenient way of dealing with the issue is to leave it to the taxing officer.
6. There can be no doubt that all parties are well-resourced and, it would appear, the plaintiffs are prepared to accept rates outside those allowed for in the Determination, even for practitioners of limited experience. That does not, however, resolve the proposed increase in hourly and daily rates when the question is costs between parties. The court does not lift the limit on hourly rates simply because a party has engaged lawyers who charge at a higher rate.[57] As Pullin J said in Flotilla Nominees Pty Ltd v Western Australian Land Authority:

... there should be no expectation that, as a matter of course, rates in the costs agreement which are above scale will be ordered to be the rates to apply in taxation as between party and party. There would have to be evidence justifying the higher rate.[58]

1. The plaintiffs have adduced evidence of the rates of all practitioners from the firm DLA Piper who performed work on the matter. All of them, even the paralegals, charge substantially above scale.
2. Mr Murphy also deposed that senior counsel who appeared at the hearing charged an hourly rate more than double that in the scale.[59]
3. Mr Murphy deposed that he has 19 years' experience, specialising in mining and complex litigation. He deposed that he undertook, directed or instructed all external legal work performed for the plaintiffs in defending the application.
4. I am satisfied that it was appropriate for a matter like this that an experienced and senior practitioner direct the legal work, and the evidence is that Mr Murphy had that role. Allowance should be made by removing the limit on hourly rates in Table A for the work Mr Murphy did. The plaintiffs did not, however, adduce any evidence to justify a general order removing the limit on rates for all practitioners who worked on the matter.
5. The defendants also opposed the order regarding the rate for senior counsel, and relied on evidence that it was possible to engage senior counsel at scale rates. Counsel who appeared for the plaintiffs at the hearing has 10 years' experience as senior counsel. Having regard to the importance of the matter, it was appropriate, in my opinion, for the plaintiff to engage senior counsel of that seniority and experience. I note that in a recent decision, Quinlan CJ allowed an additional 50% to the rates for experienced silk in a complex matter. I propose to make the same allowance.
6. Otherwise, the plaintiffs have not established any basis for an uplift of the rates in Table A.
7. I will order:

Pursuant to s 280(2) of the Legal Profession Act 2008 (WA), any taxation of the plaintiffs' costs of or incidental to the first, second and third defendants' chamber summons filed 9 July 2021 (awarded by order 2 of the orders made by the Honourable Justice Allanson on 14 April 2022) is to be undertaken:

(a) without reference to the limits provided in item 10 of Table B in clause 13 of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (Scale);

(b) including reasonable allowances for work undertaken by senior counsel and junior counsel;

(c) in relation to Shane Murphy, without reference to the hourly rate provided for Senior Practitioners in Table A in clause 11 of the Scale; and

(d) the maximum hourly and daily rates for Senior Counsel be increased by 50%.

1. Each party has had some measure of success in this application. In my opinion, there should be no order as to the costs of plaintiffs' application for special costs orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The fourth defendant gave notice that he would abide the decision of the court. In these reasons I refer to the first to third defendants collectively as the defendants.

[2] Affidavit of Robert Alastair Beeck sworn 24 September 2021, RAB 9, 268.

[3] The plaintiffs contend, in this action, that the dispute concerned only the boundaries of their mining lease, and not that part of the exploration licence that was not converted to a mining lease.

[4] Affidavit of Danilo Dragovic sworn 9 July 2021, DD 2.

[5] Published as Aquila Steel Pty Ltd v BHP Billiton Minerals Pty Ltd [2020] WAMW 21.

[10] Statement of claim [13]. By s 276, the Minister was empowered to temporarily reserve Crown land from occupation and authorise its temporary occupation for purposes including prospecting.

[12] Statement of claim [15]. Since 1982, the Minister has been a corporation solely established under s 10 of the Mining Act 1978. That change is not material to the issues in this matter, and I will simply refer to the Minister.

[16] By s 18 of the Mining Act 1978, Crown land that is the subject of a mining tenement is not open for mining. See also s 117, which protects existing tenements on any grant.

[17] Statement of claim [29]. The defendants hold mining leases granted under the Mining Act 1978, including mining leases 47/685-I, 47/686-I, 47/688-I and 47/689-I, located on Rocklea Station in the Pilbara region of Western Australia. The parties have referred to the four numbered leases as the Neighbouring Tenure for the purposes of these proceedings, and I will use that term. The defendants hold, and have applied for, other mining leases, at least some of which are also located on Rocklea Station.

[20] Statement of claim [10] - [11].

[21] Evidence was adduced before the warden that Frank Troy continued to live in the original Rocklea Homestead until his death in 1973, and the original homestead was also being used as a store: see affidavit of Danilo Dragovic sworn 9 July 2021, DD15, 335 ‑ 337.

[22] Statement of claim, Prayer for Relief A.

[23] See Mineralogy v Sino Iron Pty Ltd [No 2] [2021] WASCA 105 [159] - [180].

[24] Coffey v Secretary, Department of Social Security [1999] FCA 375; 86 FCR 434.

[26] Jack v Chief Executive Officer (Housing) (No 2) [2021] NTSC 81 [74].

[27] Josephson v Walker [1914] HCA 68; (1914) 18 CLR 691, 701.

[28] Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, 427.

[29] Jack v Chief Executive Officer (Housing) (No 2) [76].

[30] Noosa Shire Council v T.M. Burke Estates Pty Ltd [2000] 1 QdR 398.

[31] Pilbara Iron Ore Pty Ltd v Ammon [2008] WASC 108.

[32] Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334 345, 348 - 349.

[33] Jebb as trustee for Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121 [106], [108].

[34] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2020] WASC 40 [68].

[35] See affidavit of Danilo Dragovic sworn 9 July 2021, 95.

[36] See s 132, s 134.

[38] Section 57(2c), (2d), (2e).

[39] Section 80.

[40] Section 82(1)(ba).

[46] Section 162(2)(ka) was inserted by Mining Amendment Act 1985 (100 of 1985, s 109). Although the paragraph has since been amended, the 1985 amendment appears to be the occasion when the Act specifically authorised regulations giving the Minister the power to determine disputes or objections relating to surveying of mining tenements.

[48] Defined in reg 116 as 'the person holding or acting in the office of the Executive Director Resource Tenure Division in the Department'.

[51] The reference to notes of evidence is an anachronism: the warden is required by reg 163 to ensure evidence is recorded electronically or by written transcript.

[52] Sub-regulations (1) and (2) do not apply where the application giving rise to the mining survey is lodged on or after 1 July 1991: reg 120A(2a).

[54] The fourth defendant gave notice that he would abide the decision of the court. In these reasons I refer to the first to third defendants collectively as the defendants.

[55] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [11]-[16]. Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208 (S2),

[56] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] (S) [11].

[57] Crawley Investments Pty Ltd v Elman [2014] WASC 233 (S); The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345 (S)

[58] Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [22].

[59] Affidavit of Shane Michael Murphy, affirmed 28 April 2022. The rate for junior counsel was not disclosed.