AQUILA STEEL PTY LTD -v- BHP MINERALS PTY LTD [No 2] [2024] WASC 250 (17 July 2024)

1. There is, and at all material times has been, a pastoral station located in the Pilbara region of Western Australia known as Rocklea Station.
2. Sometime prior to 1966, the Old Homestead was erected on Rocklea Station.
3. Sometime in 1966, the New Homestead was erected at Rocklea Station, approximately 390 m northwest of the Old Homestead.[6]
4. I will later say more about the characteristics of the two homesteads, the time at which the New Homestead became a residence, and who resided in the two homesteads.[7]

1. In simplistic terms, mining legislation[9] provides for various rights (rights of occupation, licences and leases) to be granted over land, to permit exploration or mining. The legislation creates a system under which the holder of a right over particular land will have that right to the exclusion of all others.

1. On or around 26 May 1967, BHP applied for the creation of seven temporary reserves, and the right to occupy those temporary reserves.[10] The application was made under s 276 of the since repealed Mining Act 1904 (WA) (Repealed Act). Under that section, the Minister had the power to temporarily reserve Crown land from occupation and authorise any person to temporarily occupy any such reserve. Temporary reserves were effectively replaced by exploration licences in the Mining Act 1978 (WA).
2. In an attachment to the application, the seven areas, labelled numerically, were described by reference to various features. 'Area (6)' was described by reference to 'Rocklea Homestead'. The temporary reserve sought to be created over 'Area (6)' was, when created, what I refer to as 'the Rocklea Temporary Reserve'.
3. I will later say more about the application and its approval.[11] For the moment, it is sufficient to note the following.
4. On or around 31 July 1967, the Under Secretary recommended to the Minister for Mines that the application be approved in respect of Crown Land only, with rights to 31 March 1968 and subject to '[t]he usual iron ore conditions', which included, among others, that

within 60 days of approval of the right of occupancy appearing in the Government Gazette, the occupant shall mark at a corner of the boundary of the Temporary Reserve a landmark consisting of a post or cairn to serve as a commencing or datum point and shall advise the Minister for Mines in writing the position of such point.

1. On 4 August 1967, the Minister relevantly:[12]
   1. accepted the Under Secretary's recommendation that the application be approved, subject to conditions;
   2. temporarily reserved Area (6) from occupation under s 276 of the Repealed Act; and
   3. authorised the temporary occupation of Area (6), subject to conditions and the Governor's approval,

1. The Rocklea Temporary Reserve was recorded in a handwritten register. The register was maintained by the Department assisting the Minister with the administration of mining legislation (Department).[13]
2. On or around 28 September 1967, the Minister recommended that Cabinet (Executive Council) advise the Governor in Council to confirm the temporary reservation by the Minister of the Rocklea Temporary Reserve and approve the Minister's authorisation of BHP to temporarily occupy the Rocklea Temporary Reserve.[14]
3. On or around the same day, Cabinet (Executive Council) advised the Governor in Council to do this, and the Governor in Council followed that advice. Once that occurred, BHP was authorised to occupy the Rocklea Temporary Reserve in accordance with s 276 of the Repealed Act. At all times between 28 September 1967 and 1 June 1982, BHP had a right to occupy the Rocklea Temporary Reserve for the purpose of prospecting for iron ore.
4. On 6 October 1967, the Rocklea Temporary Reserve was notified in the Government Gazette of Western Australia. The entry in the Gazette noted the Mines File number of 384/67 (Mines File 384/67).[15]
5. The following month, BHP marked a datum point for the Rocklea Temporary Reserve by driving a black 5 foot star iron approximately 2 feet into the ground. That star iron was subsequently lost. Despite searches by Aquila in 2013 and 2018, and searches by BHP in 2018, the star iron was not found.[16]

1. On 29 April 1982, BHP applied for an exploration licence under the Mining Act over the area of the Rocklea Temporary Reserve.[17]
2. On or around 4 October 1982, the Minister granted the licence (BHP's Exploration Licence) over that land.[18]
3. After it was granted, the land was not open for mining.[19] Further, after 28 June 1991,[20] the land was also unavailable for exploration.[21]

1. On or around 24 May 2004, Aquila applied for an exploration licence under the Mining Act.[22] The application was made in relation to 32 blocks of land. Some of the blocks of land included land within the area of BHP's Exploration Licence. On or around 23 March 2005, the Minister granted the licence (Aquila's Exploration Licence)[23] under the Mining Act.[24]
2. The area of Aquila's Exploration Licence:
   1. excluded land that was within the area of BHP's Exploration Licence; and
   2. was in part adjacent to, and shared a boundary with, the area over which BHP's Exploration Licence was granted.
3. Since about 23 March 2005, the land over which Aquila's Exploration Licence was granted and remains in force has not been open for mining, nor available for exploration.

Converting exploration licences into mining leases

1. At all material times, s 67 of the Mining Act gave the holder of an exploration licence the right to apply for and, subject to s 75(9), to have granted under s 75(7), a mining lease over any part of the land the subject of the exploration licence. Section 75(7) provided that, in the case of an application for a mining lease made by the holder of an exploration licence, the Minister shall, subject to other provisions of the Act,[25] grant to the holder one or more mining leases over any parts of the land the subject of the exploration licence.

1. On 22 July 2005, BHP applied for mining leases over areas within BHP's Exploration Licence, being mining leases 47/673‑I to 47/691‑I.
2. On 19 December 2013, Aquila applied for a mining lease over an area within Aquila's Exploration Licence, mining lease 47/1494‑I.
3. On or around 6 June 2014, the Minister granted mining leases 47/683‑I to 47/691‑I to BHP by way of a partial conversion of BHP's Exploration Licence under s 75(7) of the Mining Act. I will refer to the areas covered by mining leases 47/685‑I, 47/686‑I, 47/688‑I and 47/689‑I collectively as 'BHP's Neighbouring Tenure'.[26]
4. BHP's Neighbouring Tenure:
   1. does not include land over which Aquila's Exploration Licence was granted; and
   2. is in part adjacent to, and shares a boundary with, the area over which Aquila's Exploration Licence was granted.
5. On or around 14 May 2018, the Minister granted mining lease 47/1494‑I to Aquila by way of a partial conversion of Aquila's Exploration Licence under s 67(1) and s 75(7) of the Mining Act (Aquila's Mining Lease).
6. The areas of both Aquila's Mining Lease and Aquila's Exploration Licence (at least until 2018[27]) shared a boundary with BHP's Neighbouring Tenure. Both of those Aquila tenements exclude land over which two of the mining leases in BHP's Neighbouring Tenure (mining leases 47/685‑I and 47/689‑I) were granted.
7. The location of the boundary between the areas of those two Aquila tenements and those two BHP mining leases is, in part, identified by the area of BHP's Exploration Licence, which in turn is identified by the area of the Rocklea Temporary Reserve. In other words, the Disputed Area is the area of land that falls within BHP's mining leases 47/685‑I and 47/689‑I if the Rocklea Temporary Reserve is defined by reference to the Old Homestead, but falls within Aquila's tenements if the Rocklea Temporary Reserve is defined by reference to the New Homestead.
8. The boundaries between the areas of the other mining leases in BHP's Neighbouring Tenure (47/686‑I and 47/688‑I) and Aquila's tenements are unaffected regardless of how the area of the Rocklea Temporary Reserve is defined.

1. On 25 June 2018, Aquila was directed to survey Aquila's Mining Lease. At that time, it appears that the Department considered that the proper reference point for the Rocklea Temporary Reserve was the Old Homestead.[29]
2. On 17 August 2018, after meeting with a Peter Winter (representing Aquila), the Department changed its mind.[30] Shortly after the meeting, the Department instructed a Phillip Richards to survey Aquila's Mining Lease (Survey).[31] Mr Richards conducted the Survey on the basis that the Rocklea Temporary Reserve was defined by reference to the New Homestead.[32] On 10 October 2018, Mr Richards reported to the Department on the Survey (Survey Report).[33]
3. On 17 October 2018, the boundaries were altered by the Department, in accordance with the Survey Report.[34]

1. On 21 November 2018, BHP lodged an objection to the Survey Report (the Objection).
2. Over seven months later, on 31 July 2019, BHP commenced civil proceedings in the Warden's Court by filing a plaint (the Plaint). On 16 August 2019, Aquila filed a response to the Plaint in which it pleaded that the Plaint was an abuse of process because BHP had already lodged the Objection to resolve the same issues.
3. On 5 September 2019, BHP applied for orders that (among other things) the Objection be heard immediately after the Plaint, and that the hearing of the Objection listed for 24 to 26 September 2019 be vacated if the Plaint was not also listed for a substantive hearing in the same period. On 16 September 2019, Aquila made submissions to the Warden opposing the orders sought by BHP and asserting that the Plaint was an abuse of process. On 18 September 2019, the Warden declined to make the orders sought by BHP.
4. The Warden heard the Objection on 24 and 25 September 2019. On 4 November 2020, the Warden recommended that the Minister:
   1. uphold the Objection;
   2. set aside the Survey; and
   3. direct that the boundaries of Aquila's Mining Lease be delineated on the basis that it not include land that was formerly the subject of the Rocklea Temporary Reserve as defined by reference to the Old Homestead.
5. On 30 April 2021, Aquila filed the writ and statement of claim in these proceedings and an application for judicial review of the Warden's recommendation.
6. The following month, BHP withdrew the Plaint with Aquila's consent.[36]
7. On or about 4 October 2023, BHP sought a permanent stay of these proceedings. At first instance, BHP's application for a stay was dismissed. An appeal against that decision was dismissed.[37]
8. The Minister has not determined the Objection[38] pending determination of the application for judicial review. As the outcome of these proceedings is likely to resolve the judicial review proceedings, the judicial review proceedings have been stayed pending the outcome of these proceedings.
9. The Minister is the fourth defendant in these proceedings and has filed a notice of intention to abide.[39]

1. Witness statements from 13 people were filed. Other than expressly noted in these reasons, the accuracy and credibility of their evidence was not challenged, and I accept it. Indeed, only two were required to give oral evidence - Aquila's witness Michael Herbert and BHP's witness Christopher Clegg.

1. Three of the witnesses gave evidence of their observations of Rocklea Station in and around 1967 - Stephen Troy, David Cox and Mr Herbert. I will discuss their evidence when discussing the first key issue.

1. Also relevant to the first key issue is the evidence of Mr Clegg.
2. Mr Clegg is a former employee of the Department who later undertook tenement management for BHP. He gave evidence as to the departmental processes at the time he began working there in 1971. He also gave evidence about the marking out of BHP's mining leases in 2005.
3. Mr Clegg began a career in the mining industry with the Department[40] in 1971. He worked for the Department until 1986.[41] He said that the period in which he worked on temporary reserves was probably 1973 to 1975.[42]
4. Mr Clegg gave evidence as to the public plans held by the Department prior to the introduction of the 'Tengraph' electronic mapping system.[43] I will discuss this evidence when dealing with what material was incorporated into the instrument recording the Minister's decision.[44]
5. In addition, Mr Clegg gave evidence about the documents on Mines File 384/67. I will discuss this evidence when dealing with the grant of the Rocklea Temporary Reserve.[45]
6. Finally, Mr Clegg gave evidence as to the Department's processes in relation to temporary reserves. He said he was not aware of anything that caused him to believe that the processes in 1967 (when the Rocklea Temporary Reserve was created) were materially different to the processes he found when he commenced working in the Department. He said that, from what he observed when he worked at the Department, the processes he learned and described in his witness statement were well established.[46]
7. Aquila noted that Mr Clegg had not explained in his witness statement the basis for his claim that the processes were well established. Aquila did not object to BHP adducing oral evidence from Mr Clegg in relation to this point.
8. In examination‑in‑chief, Mr Clegg was asked to explain what he meant when he said that the processes in relation to the temporary reserves were well established. He said:[47]

[T]he process was well documented through a process legend which was always endorsed on written temporary reserve applications. In my time, the applications came in and they would be endorsed as to the personnel that the application had to go to for various assessments. So it's usually on the left-hand side of the document and it would be, for example, PR would mean Principal Registrar, RO would be the Records Office, CD would be the Chief Draftsman, and then it may come back to the principal registrar again and then it would go to the DGS which was the Director of Geological Survey and all of those processes were well defined primarily because they were essential inputs required for the administration to make a decision in relation to a temporary reserve.

1. Mr Clegg said he had seen such 'process legends' in Mines File 384/67, the Mines file in relation to the Rocklea Temporary Reserve.[48] He identified multiple examples.[49]
2. In its closing submissions, Aquila said that Mr Clegg's evidence was of little weight. It points out that, during Mr Clegg's long employment with the Department, he actually only dealt with temporary reserves over a two or three year period between 1973 and 1975. Further, much of the statements in Mr Clegg's witness statements concerned tenements, not temporary reserves.[50]
3. Having regard to Mr Clegg's evidence and the documents on Mines File 384/67 (which were created in 1967), I accept BHP's submission that I should infer that the processes in place when Mr Clegg worked in the Department were in place in 1967. For the same reasons, I accept his evidence. His evidence was entirely consistent with the contemporaneous documents.
4. Aquila also submits that Mr Clegg was unable to recall events that had been described in an email sent by a Mr Stevens of the Department to a Ms Keith at BHP on 12 November 2018.[51] Aquila says that Mr Stevens' account should therefore be preferred. As I later explain, I consider the events said to involve Mr Clegg to be irrelevant.[52] Further, his failure to remember the particular events described (assuming he was involved in them) does not cause me to doubt his general reliability or credibility.

Mr Dinh - inaccuracy of location of Rocklea Homestead on Page 11 Plan

1. Aquila adduced evidence from an expert, Vincent Dinh. This was primarily[53] to establish that the location of a square marking a homestead in Rocklea on a particular plan was not the precise geographic location on the ground of the Old Homestead (or the New Homestead). This was not in dispute.
2. The plan to which Mr Dinh referred was of great significance in this case. It was located on page 11 of Mines File 384/67. I will refer to it as the 'Page 11 Plan'.

1. Mr Trinder is the 'Superintendent Spatial Data' of the first defendant. He has approximately 28 years' experience as a geographic information system (GIS) specialist. A GIS is a computer system that is used to capture, store, check, analyse and display data related to positions on the earth's surface.[54]
2. Mr Trinder analysed the maps and plans relevant to this case. His evidence shows, among other things, that the Rocklea Temporary Reserve was plotted on the Page 11 Plan by reference to the square on that plan purporting to mark the location of the Old Homestead.[55]
3. Aquila challenged the weight of his evidence. However, apart from a single (and irrelevant) issue,[56] Aquila did not contend that any of his evidence was incorrect.[57]

1. Peter Winter is employed by the company managing the joint venture to which the plaintiffs are parties. He gave evidence of, among other things, investigations that he carried out in relation to the way in which the boundary of the Rocklea Temporary Reserve had been determined. I will discuss his evidence when discussing Key Issue 2.[58]

1. Jonathon Chiam and Elizabeth Plajzer, solicitors for Aquila and BHP respectively, gave evidence of public documents they had located.[59]
2. BHP adduced evidence from a number of other witnesses, whose evidence was described as follows:[60]

(c) Michael Fitzpatrick, who undertook tenement management for [BHP]. His evidence goes to exploration and expenditure reports prepared by or on behalf of [BHP], and the marking out of [BHP]'s mining leases in 2005.

(d) Bree Keith, an employee of BHP involved in approvals. Ms Keith became aware of changes in tenement boundaries shown in TENGRAPH in October 2018. Her evidence otherwise goes to expenditure and operational reports prepared by or on behalf of [BHP].

(e) Lambodar Moharana, a resource analyst with BHP. His evidence goes to [BHP]'s activities in the area of TR4286H and [BHP]'s Exploration Licence.

(g) Annette Thomas, an employee of BHP involved in tenement management. Her evidence concerns information on the Department's TENGRAPH system.

1. The trial bundle comprised 12 lever arch volumes. Only those documents referred to (and explained) became exhibits.

1. The first key issue is whether the boundary of the Rocklea Temporary Reserve was determined by reference to the Old Homestead or the New Homestead.
2. The answer will turn on four subordinate issues.
3. The first is what type of evidence is admissible. As I will explain, material incorporated into the documents creating the Rocklea Temporary Reserve, expressly or by necessary implication, is admissible. So too is extrinsic evidence to identify, objectively, a thing or place referred to in the relevant document (Identification Evidence).
4. The second is what material was incorporated into the documents creating the Rocklea Temporary Reserve.
5. The third is what is the Identification Evidence.
6. The fourth and final subordinate issue is what does the admissible evidence establish.
7. The parties agree that some evidence is admissible. They disagree as to the extent of the admissible evidence. Aquila disputes the admissibility of many of the documents said to be admissible by BHP. The parties also disagree as to what flows from the admissible evidence.
8. Before dealing with these subordinate issues, I will set out the events surrounding the grant of the Rocklea Temporary Reserve in greater detail.

The grant of the Rocklea Temporary Reserve and right of occupancy

1. On or around 26 May 1967, BHP[61] applied for seven temporary reserves.[62] This was done by letter to the Under Secretary of Mines (Application Letter[63]) with an attachment describing the areas over which the temporary reserves were sought (Attachment[64]). The areas were said to cover a maximum of 50 square miles and to all be generally around an existing temporary reserve, Temporary Reserve 3156. The Application Letter also implicitly applied for the right to occupy those temporary reserves to prospect for iron ore.[65]
2. The seven areas were labelled numerically and described by reference to various features. The numbers 4281H, 4282H, 4283H, 4284H, 4285H, 4286H, and 4287H were written in red pen in the left‑hand margins of the Attachment next to each of the areas described. It is common ground that the Department allocated these numbers as the reference number for each area sought to be made a temporary reserve.[66]
3. In the Attachment, the sixth area (labelled 'Area (6)') was designated 4286H. This is the area that became the Rocklea Temporary Reserve. I will refer to the application for a temporary reserve over that area as the 'Rocklea Temporary Reserve Application'.
4. In the Attachment, Area (6) was described as:

Datum peg 10.0 miles at bearing 259o 00' from Rocklea Homestead (From Datum peg, the baroundaries [sic] of Area (6) are:

5.0 miles at bearing 192o 30', thence

10.0 " " " 282o 30', thence

5.0 " " " 12o 30', thence

10.0 " " " 102o 30', back to datum peg.

1. Aquila notes that Area (6) was not described by reference to a plan, in contrast to four of the other areas in the Attachment.[67]
2. This is correct. However, I do not consider this assists Aquila's case.
3. The four areas which were described by reference to a plan (being Areas (3), (4), (5) and (7)) used 'Mudlark Well' as the reference point. The description of each of those areas began:

Datum peg [a number of miles] at [a specified bearing in degrees and minutes] from Mudlark Well (North West Corner of Newman Sheets, Scale 1:250,000) from Datum peg, the boundaries of [Area (3)/Area (4)/Area (5)/Area (7)] are:

1. In addition to the description of Area (6), two other areas were not described by reference to a plan (being Areas (1) and (2)). The description of each of those areas began:

Datum peg [a number of miles] at [a specified bearing in degrees and minutes] from Mt Newman. From Datum peg, the boundaries of [Area (1)/Area (2)] are:

1. I infer that the reason why the descriptions of Areas (3), (4), (5) and (7) referred to a plan, unlike the descriptions of Areas (1), (2) and (6), is because 'Mudlark Well' was not as identifiable and obvious as a homestead or Mt Newman itself.[68] Unlike a homestead and Mt Newman, the location of a well may not be known to anyone other than those living and working on the land.
2. After the Application Letter was received, it seems that the Department created a file for the applications, Mines File 384/67. Documents on a Department file were routinely filed sequentially by date from earliest creation date to the latest date. Each folio page of the file was given a folio reference, numbered sequentially in ascending order, and usually notated on the top right‑hand corner of each page.[69]
3. Mr Clegg said:[70]

During my employment with the Department, after a temporary reserve application was received and allocated a number, a draftsperson (geospatial officer) was tasked with preparing a plan (referred to as an Appraisal Plan) for the file and a document (referred to as [an Appraisal Schedule[71]]) which together identified any excluded land, including Crown reserves and freehold title, and the extent of encroachment onto any existing mining tenements or approved temporary reserves affected by the application that were not available for inclusion in the application under appraisal. The Appraisal Plan provided a visual depiction of the area the subject of the application plotted on an extract copy of the relevant Public Plan based on the written description included in the application letter and, where provided, the applicant's plan.

1. Mr Clegg identified some documents on Mines File 384/67 as being Appraisal Plans and Appraisal Schedules.[72]
2. There are two Appraisal Plans on Mines File 384/67. One plan was for the Rocklea Temporary Reserve Application, at folio 11[73] (which I refer to as the 'Page 11 Plan'). The other was at folio 10 and was for the other six applications.[74] I will refer to this as the 'Page 10 Plan'.
3. The Page 11 Plan purports to mark the boundary of the Rocklea Temporary Reserve. The location of the boundary was calculated by reference to a square purporting to mark the location of a homestead in Rocklea on that plan.[75] Similarly, the Page 10 Plan appears to mark the boundaries of the other six areas by using the location of marks representing 'Mount Newman' and 'Mudlark Well' (being the reference points for those areas) on the Newman public plan then in force.[76]
4. The Page 11 Plan bears a handwritten notation in the bottom right‑hand corner which reads 'Onslow 13 Ten Mile Topo'. Mr Clegg said:[77]

I understand this to mean that the [Page 11 Plan] is an extract of the Department's Public Plan based on Western Australia Sheet 13 (Onslow) with a scale of 1 inch to 10 miles (that is, 1 inch on the plan represents 10 miles on the ground).

1. I will refer to the 'Department's Public Plan' to which Mr Clegg refers, and from which the Page 11 Plan appears to have been extracted, as the 'Onslow 13 Plan'. I will later say more about the Onslow 13 Plan.[78]
2. Mr Clegg said:[79]

Consistent with my experience, the area the subject of application 4286H shown on the [Page 11 Plan] appears to have been plotted onto an extract of the [Onslow 13 Plan] by 'scaling' from the definable feature identified in the description provided by the applicant, in this case, Rocklea Homestead. That gives the datum or commencement point that constitutes a corner point of the temporary reserve. From the datum or commencement point, the boundaries appear to have been drawn using the bearings and distances set out in the description. Based on my experience in the Department, that was most likely done using a scaled rule appropriate to the scale of the [Onslow 13 Plan] and protractor to define the directional bearing of each line relative to true north. The combination of successive bearings and distance result in the final meeting point of the coordinates to form the shape of a rectangular parallelogram.

1. There are four Appraisal Schedules on Mines File 384/67, at folios 12 ‑ 15. The first dealt with the application designated 4287H.[80] The second dealt with the Rocklea Temporary Reserve Application.[81] The third dealt with the applications designated 4283H, 4284H, and 4285H.[82] The fourth dealt with the applications designated 4281H and 4282H.[83]
2. Each has notes and signatures at the bottom. On each, there is a name 'J. Regan' above the date 14 June 1967. Also written on each is 'C.D. please note'. There is the word 'Noted' (and, on three of the four Appraisal Schedules, an illegible signature) above the date 15 June 1967. On three, 'P.R. No objection subject to the usual conditions' is written above an illegible signature and the date 16 June 1967. On the fourth, 'P.R. No objection subject to the above encroachments and usual conditions' is written above an illegible signature and the date 16 June 1967. The 'P.R.' was the Principal Registrar. The 'C.D.' was the Chief Draftsman.[84]
3. From the location of the Appraisal Plans and Appraisal Schedules on Mines File 384/67, and the notations and dates on the Appraisal Schedules, I conclude that the Appraisal Plans, including the Page 11 Plan, were created by 14 June 1967.[85]
4. Three of the four Appraisal Schedules, including the one for the Rocklea Temporary Reserve Application, record 'nil' next to the item 'ENCROACHMENT MINING TENEMENTS'. The fourth, the one for the areas designated 4281H and 4282H, does not. Instead, it refers to four temporary reserves which had been applied for by a J.D. Nicholas (noting that two had not yet been approved), and it records 'See p.10 hereunder'.[86]
5. Aquila notes that this is a reference to the Page 10 Plan. It submits that this notation suggests that the Page 10 Plan was used for the purposes of checking whether areas sought to be made temporary reserves encroached or overlapped with areas that were already temporary reserves or the subject of an earlier application.[87] I will say more about this after discussing the next document, which Aquila relies upon for a similar submission.
6. On 24 July 1967, the Principal Registrar told the Under Secretary that five of the seven applications, including the Rocklea Temporary Reserve Application, were 'clear and may be granted'.[88] In relation to the other two, the Principal Registrar wrote:

... however, No. 4282H is substantially upon existing iron ore Reserve No. 4192H (J. D. Nicholas) and, therefore, of necessity, must be refused, while No. 4281H is substantially upon applications for iron ore Reserves Nos. 4266H and 4267H by J. D. Nicholas. The plan at page 10 File 384/67 shows both these applications (Nos. 4281H and 4282H) to be on and close to a group of reserves held by J. D. Nicholas for iron ore and, therefore, it seems more logical to refuse both applications and grant those by Nicholas, especially as No. 4282H must be refused. If the applications by Nicholas for Nos. 4266H and 4267H are refused and [BHP[89]]'s Application No. 4281H is swung around to clear existing Reserve No. 4192H, the Application No. 4281H could be granted. Applications by Nicholas were received 10.5.67 and those by [BHP] 30.5.67.

1. Aquila submits that this shows that the plans were being used to enable the Department to assess the applications, including to check whether the land was available for temporary reservation.[90] It submits that the plans were used to depict an approximate location of the area applied for, so that this check could be made.[91]
2. Having regard to the documents I have referred to so far, I accept this. BHP did not contend otherwise.[92] The dispute between the parties was whether the plans also served the purpose of identifying the area over which a temporary reserve was being applied for.
3. Aquila says the plans did not serve that purpose. It submits that they only provided an approximate location for the purpose of checking for encroachments.[93] Aquila refers to Mr Clegg's evidence, where he agreed that plans were used to 'check for or clear for encroachments'.[94] Aquila also notes that there was no obligation to mark out or survey an area before making an application for a temporary reserve. Aquila says this would suggest that the boundaries would not be accurately plotted on any departmental map.[95]
4. BHP says that Aquila's submissions draw a false distinction. BHP submits that it is not possible to determine if there is an encroachment without first identifying where the area actually is.[96]
5. As odd as it seems, both may be right. Plainly, it is not possible to determine if there is an encroachment without first identifying where the area applied for is. However, the precision required will vary depending on whether the area is close to existing temporary reserves or areas over which there are licences or leases. To take the examples in this case, the Page 10 Plan shows that two of the areas sought to be made temporary reserves by the Application Letter were very close to, and indeed overlapped with, existing temporary reserves. By contrast, the Page 11 Plan does not appear to show any existing temporary reserves in the immediate vicinity of the Rocklea Temporary Reserve Area. Having regard to Mines File 384/67 and the plans in particular, I consider that the plans did serve the purpose of identifying the area, at least approximately.
6. The Page 11 Plan also has '4096' written at the bottom. Aquila asserts that, as there was no mapping of the application for Temporary Reserve 4096, this means[97]

we now have evidence from the record that it wasn't the case that, invariably, these areas were plotting on a plan in order for it to be progressed to the stage of approval or refusal. It can be refused without there ever being plotting on a map or a plan. The map or the plan is not a critical, usual or necessary step we can deduce from that circumstance because it has been treated and dealt with by both department and Minister without it being placed on a plan or a map.

1. I do not accept that this is shown by the absence of a plan for Temporary Reserve 4096. The application in relation to Temporary Reserve 4096 was withdrawn and substituted with differently numbered applications. This had occurred at least by 26 May 1967.[98] It appears that the Appraisal Schedules were created after that date.[99]
2. The Appraisal Schedule for the Rocklea Temporary Reserve Application also has the words 'NO PLAN' written at the bottom above the signatures. Aquila referred to this entry on a number of occasions.[100] It was not entirely clear why. Aquila may have been asserting that it showed, when considered with the other Appraisal Schedules which did not have those words written on them, that the Minister was not provided with the Page 11 Plan because there were no identified encroachments, and all the Minister needed to know was that fact. If that was Aquila's assertion, I would not draw that inference from the notations. It would be no more than speculation.
3. On or around 31 July 1967, the Under Secretary formally recommended, in writing to the Minister, that some of the applications, including the Rocklea Temporary Reserve Application, be approved.[101] The approvals were to be in respect of Crown Land only, with rights to 31 March 1968 and subject to '[t]he usual iron ore conditions',[102] which included, among others, that

within 60 days of approval of the right of occupancy appearing in the Government Gazette, the occupant shall mark at a corner of the boundary of the Temporary Reserve a landmark consisting of a post or cairn to serve as a commencing or datum point and shall advise the Minister for Mines in writing the position of such point.[103]

1. On 4 August 1967, the Minister signed the recommendation document in two places (Reservation Document).[104] First, under a stamp 'APPROVED', next to which the numbers of those temporary reserves which had been approved (including the Rocklea Temporary Reserve) were handwritten (at an unknown time). Second, under a stamp 'REFUSED', next to which the numbers of those temporary reserves which had been refused were handwritten (at an unknown time).
2. Aquila points to the references in the Reservation Document to 'Applications' and the Minister's use of the words 'APPROVED' and 'REFUSED' in relation to those 'Applications'. It submits that the 'more plausible characterisation of the events is that the Minister approved the [Rocklea Temporary Reserve] Application, not that the Minister accepted the Under Secretary's recommendation'.[105] BHP points out that, in its statement of claim, Aquila pleads that the Minister accepted the Under Secretary's recommendation to approve the Rocklea Temporary Reserve Application.[106] It is also an agreed fact.[107]
3. The Reservation Document sets out the Under Secretary's 'formal' recommendation. The Minister, by his signatures under the two stamps, approved the applications the Under Secretary had recommended should be approved, and refused those that the Under Secretary had recommended should be refused. In my view, this can be properly characterised as the Minister accepting the Under Secretary's recommendation.
4. By signing the Reservation Document, the Minister:[108]
   1. temporarily reserved Area (6) from occupation under s 276 of the Repealed Act; and
   2. authorised the temporary occupation of Area (6), subject to conditions and the Governor's approval.
5. BHP submits that it is not possible to be certain that the handwritten temporary reserve numbers next to the stamps were there when the Minister signed the Reservation Document.[109] I accept this. However, I consider it is more likely that they were. Otherwise, the Minister would have signed a document which would not show which applications were approved and which were refused. The document would have been entirely meaningless. I doubt a Minister would sign such a document.
6. The original Reservation Document is not on Mines File 384/67. It appears at folio 14[110] of Mines File 1563/66 (which was the first Mines File for Temporary Reserve 3837H[111]). A copy of the Reservation Document (without the Minister's signatures) is on Mines File 384/67.[112]
7. On 8 August 1967, the Under Secretary wrote to inform BHP of the outcome of the applications.[113] The Under Secretary stated, among other things, that the Minister had approved the Rocklea Temporary Reserve Application. The Under Secretary wrote:[114]

These approvals are in respect only to Crown Land ... with occupancy rights given to the [named companies] to prospect for iron ore until 31.3.1968 subject to: -

[The letter then listed conditions, including the payment of fees]

and upon receipt of your remittance for this total amount, the approvals will be submitted for confirmation in Executive Council.

1. At the foot of the page, there was a note from the Principal Registrar to the Mining Registrar at Marble Bar:

Submitted for your information together with a sketch to enable you to accurately plot the reserve on your office plans.

1. Aquila submits that this shows that the Governor's role was treated as a rubber stamp.[115] It makes this submission in support of its contentions in relation to the legislative framework.[116] I accept that the Under Secretary and Principal Registrar may have assumed that the Governor's confirmation was merely a rubber stamp. The assumption may also have been based on what happened in practice. However, I do not consider this to be of assistance in interpreting the statutory provisions.
2. Between 6 September 1967 and 31 December 1981, the Rocklea Temporary Reserve was recorded in a handwritten register maintained by the Department.[117] Under the typed column descriptor 'Locality', 'Rocklea Homestead' was written. In the same column, but on the next row next to an entry '4286H', 'See description folio 8 of Mines File 384/67' was written. Aquila notes that folio 8 is the Attachment to the Application Letter, not a plan.[118]
3. On or around 28 September 1967, the Minister recommended that Cabinet (Executive Council) advise the Governor in Council to:
   1. confirm, among others, the temporary reservation by the Minister of the Temporary Reserve 'situated Rocklea Homestead ... as shown hachured "red" on the plans at pages ... 11 of Mines File 384/67'; and
   2. approve the Minister's authorisation of BHP to temporarily occupy the Rocklea Temporary Reserve for a period expiring on 31 March 1968 for the purpose of prospecting for iron ore, subject to attached conditions, among other things.[119]
4. The document was titled 'Minute Paper for the Executive Council'. I will refer to it as the 'Minister's Recommendation'.
5. One of the 'attached conditions' referred to in the Minister's Recommendation was the condition recommended by the Under Secretary (referred to earlier) that the occupant mark a landmark at a corner of the boundary of the Rocklea Temporary Reserve to serve as a datum point and advise the Minister of the position of such point.
6. On 28 September 1967, Cabinet (Executive Council) advised the Governor in Council in the terms recommended by the Minister.
7. The same day, the Governor in Council confirmed the Minister's temporary reservation of the Rocklea Temporary Reserve and approved the Minister's authorisation of BHP to temporarily occupy the Rocklea Temporary Reserve on the terms as advised.
8. If the Governor in Council had not confirmed the Minister's temporary reservation of the Rocklea Temporary Reserve within 12 months, the Rocklea Temporary Reserve would have ceased to be reserved, by operation of s 276 of the Repealed Act.
9. Upon the Governor in Council approving the Minister's authorisation of BHP to temporarily occupy the Rocklea Temporary Reserve, BHP was authorised to occupy the Rocklea Temporary Reserve in accordance with s 276 of the Repealed Act. At all times between 28 September 1967 and 1 June 1982, BHP had a right to occupy the Rocklea Temporary Reserve for the purpose of prospecting for iron ore.
10. On 6 October 1967, the Rocklea Temporary Reserve was notified in the Government Gazette of Western Australia. The entry in the Gazette noted the Mines File number '384/67'.[120]
11. The following month, BHP marked a datum point for the Rocklea Temporary Reserve by driving a black 5 foot star iron approximately 2 feet into the ground. A week later, BHP wrote to the Under Secretary, stating that a star iron had been inserted into the ground for the approved temporary reserves (including the Rocklea Temporary Reserve).[121] The star iron for the Rocklea Temporary Reserve was subsequently lost. Despite searches by Aquila in 2013 and 2018, and searches by BHP in 2018, the star iron was not found.
12. In addition to the events that occurred around the time of the creation of the Rocklea Temporary Reserve, Aquila relies on a letter written by the Superintendent, Surveys and Mapping Branch to Mr Williams at BHP on 19 November 1974 (Superintendent's Letter).[122] Aquila submits that the Superintendent's Letter illustrates the importance to the Department of the descriptions of areas (as distinct to plans).[123] I do not accept this.
13. The Superintendent's Letter related to the temporary reserves described as Area (3), Area (4) and Area (5) in the Attachment to the Application Letter. The Superintendent's Letter said:

Herewith information requested on the description of Temporary Reserves Nos. 4283H, 4284H, 4285H requested by phone 19/11/74.

The descriptions are those supplied by your company when the [temporary reserves] were applied for and the plotted positions of the [temporary reserves] on the 50 chain to an inch line compilations supplied abd [sic] the 1:50,000 Mines Public Plans of Mudlark and Governor are consistant [sic] with these descriptions.

Note that the datum pegs referred to in your advice of 15th November, 1967 (copy attached[124]) would not be recognised by this Department unless they did, in fact, prove to be positioned at the respective [temporary reserve] corners as shown on the referred to plans. Current practice is to relate low level aerial photography of the premarked positions to the aerial photos used to compile the 50 chain line compilations, preferably by a licensed surveyor.

1. Handwritten next to the first paragraph was 'copy page 8'. Page 8 is the Attachment to the Application.
2. From the introductory sentence, it appears that Mr Williams had asked to be given the descriptions of three of the temporary reserves sought in the Application Letter, over six years earlier. It appears that the Superintendent provided that information by providing the Attachment to the Application. The second sentence notes that the plotted positions on the named public plan of those temporary reserves were consistent with the descriptions in the Attachment. The final paragraph notes that datum pegs referred to in BHP's letter of 15 November 1967 would not be recognised unless they were positioned at the respective temporary reserve corners as shown on the named plan.
3. Understood in context, the Superintendent's Letter does not illustrate that descriptions were of greater importance to the Department than plans. The Superintendent was responding to Mr Williams' request to be provided with the descriptions.
4. Aquila points out that the applications referred to in the Superintendent's Letter were those that had referred to plans in the Attachment to the Application.[125] That fact does not support Aquila's original contention that the Superintendent's Letter illustrates the importance to the Department of the descriptions (as distinct to plans). The Superintendent's Letter was a response to a specific request to be told what the descriptions had been for those applications.

Incorporated material and identification evidence is admissible

1. It was common ground that there were no authorities which identified the proper approach to the construction of documents creating a temporary reserve under the Repealed Act.[126] However, both sides identified numerous cases which had considered the proper approach to public documents in analogous contexts.
2. The cases cited by the parties serve several purposes:
   1. First, they establish that there are significant limits on the evidence that is admissible in construing public documents.
   2. Second, they explain why that is so.
   3. Third, they illustrate how those limits may be applied to the facts of a particular case.

Restrictions on evidence in mining context - Oresearch

1. BHP cited[127] Consolidated Gold Mining Areas NL v Oresearch NL.[128] In that case, Commissioner Heenan QC[129] dealt with a boundary dispute in relation to an exploration licence. The licence itself did not identify the area of the licence. In the application for the licence, the area had been defined with reference to a feature known as 'Try Again Bore'. The application was accompanied by a Mines Department map which was intended to delineate the boundary of the area. The Try Again Bore was marked on the map in the wrong location.
2. Commissioner Heenan QC described the issue as a choice between an area defined with reference to the true geographic position of a known object or by reference to the mistaken position of that object which had been wrongly believed to be true by all the parties at the time.[130]
3. His Honour said that, as the licence itself failed to identify the subject land, it was necessary to identify the subject area by extrinsic evidence. His Honour said:[131]

It is always open to have regard to extrinsic or secondary evidence to identify the subject matter of a document of title, grant or licence, not to alter or interpret the document but to identify the subject matter.

1. Commissioner Heenan QC noted the need for certainty in determining the boundaries of mining tenements and the need for boundaries to be capable of survey or determination by Departmental officers, other miners and prospectors interested in the area.[132]
2. His Honour concluded that the area was defined by reference to its true location.

1. Both parties referred to cases which discussed the proper approach to the construction of planning and development consents. For ease of reference, I will refer to such cases as 'planning cases'. The relevant principles that emerge from those cases can be summarised as follows.[133]
2. When construing a consent, it must be kept in mind that a consent is the unilateral act of the consent authority which has an enduring function. It is not the result of a bargaining process between parties. It is not personal to the applicant but enures for the benefit of subsequent owners and occupiers. It is a 'right in rem' with enduring characteristics. For this reason, a narrower approach to extrinsic material is required compared to the approach taken to the construction of a commercial contract.[134]
3. When construing development consents, it is permissible to have regard to:[135]
   1. documents other than the consent itself if those documents are incorporated into the instrument expressly or by necessary implication; and
   2. extrinsic evidence to identify a thing or place referred to in the consent.
4. In relation to the latter, such evidence does not go to construction - it is not led to vary the instrument, but to identify a thing or place referred to in it.[136] To keep the distinction clear, I will refer to this type of evidence as 'Identification Evidence' and documents incorporated into the instrument (expressly or by necessary implication) as 'Incorporated Documents'.

When will a document be said to be incorporated?

Must it be proved that the document was accessible to the public?

1. Aquila asserts that the Page 11 Plan could not be incorporated because BHP had not proved that a member of the public could have accessed the Department's files.[137] In support of this contention, it relies on [39] and [40] of McColl JA's judgment in Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement).[138] BHP submits that McColl JA's concern in those paragraphs was not directed to whether a member of the public could have accessed the council files, but whether a member of the public might have found the document when looking in the council files.[139] I accept BHP's submission.
2. In [39] and [40], McColl JA said:[140]
   1. The review of the authorities earlier referred to demonstrates that the nature of documents held to have been incorporated in this manner are those contemporary to a development consent which give it meaning, which are those to which it might be expected a third party would seek to have recourse (and which would readily be available in council records) if a development consent was prima facie uncertain.
   2. Documents such as the September GCA Strategy created subsequent to a consent do not lend themselves to this process of inquiry. Tellingly Pasminco could not explain how an inquirer might locate it in the Council's records. A conclusion a subsequently created document was incorporated by necessary implication would create the difficult position Hope J identified in Szabo. I accept that it may be a matter of fact and degree in each case. In this case, however, even if one was to accept a third party may inquire as to the outcome of the exercise Condition 16[4] required, that inquiry would most logically have taken it to the Construction Certificate.
3. In my view, McColl JA was not referring to a lack of proof that an inquirer would have been permitted to access the Council's records. Rather, her Honour was pointing out that the document would not have been found by a person looking in the Council's records. First, it was created after the consent had been granted. Second, even if an inquiry was made as to the outcome of the exercise required by a condition of the consent, it would not have led to the document. In a separate judgment, Payne JA raised a similar concern.[141]
4. In my view, it does not need to be proved that the documents were accessible to the public.

Can subsequent documents be said to be incorporated?

1. As recorded in the extract of [40] of McColl JA's reasons in Bunderra, her Honour there referred to the 'difficult position Hope J identified' in Auburn Municipal Council v Szabo (Szabo).[142]
2. In Szabo, Hope J said:[143]

[I]t would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval.

1. McColl JA in Bunderra noted that documents which have been taken to be incorporated by way of necessary implication have generally been documents that existed on or before consent was granted.[144]
2. Leeming JA in Bunderra said that it would be contrary to well‑settled principle if the legal meaning of a development consent could alter by reference to a document not in existence at the time consent is granted.[145]
3. BHP submits that the issue in Bunderra was whether a document generated after the consent was incorporated by necessary implication. It submits that the court said a document could not be retrospectively incorporated to 'alter the effect of the decision'.[146] BHP submits that:[147]

[E]xtrinsic evidence of the kind of the [Minister's Recommendation] falls into a different category, because what you have is a prima facie ambiguous statement by the Minister that, 'I'm approving application 4286' and then you have a subsequent statement by the Minister to say, '... and this is what I approved'. And we say that is permissible.

1. I accept that the Minister's Recommendation can be construed as a statement by the Minister of what he had previously approved. I further accept that BHP is not seeking to use the Minister's Recommendation to alter the area covered by the Rocklea Temporary Reserve. I accept that such a document may be admissible. However, I consider that its admissibility turns on whether it is Identification Evidence. I do not accept that a document created after a decision has been made can be said to have been incorporated by necessary implication. That said, as will ultimately be seen, this conclusion is not fatal to BHP's case.

1. Aquila accepts that Identification Evidence is admissible to identify a thing or place referred to in a government instrument.[148] As noted above, such evidence does not go to construction - it is not led to vary the instrument, but to identify a thing or place referred to in it.
2. Aquila seeks, however, to limit the scope of what can be Identification Evidence. Aquila also contends that particular types of Identification Evidence should be given primacy. As I will explain, I do not accept these submissions.
3. Aquila submits:[149]
   1. Primacy should be given to features on the ground rather than their depiction in a document or at least those things on which members of the public are least likely to make a mistake. This is especially so in the case of Area 6 because it is described by reference to a physical landmark and without reference to any plan or map in the context of a broader application for 7 temporary reserves, 4 of which were, conspicuously, described by reference to a map.
   2. The relevant features on the ground are those that are observable by a third party at the relevant time ...
4. These submissions would have more force if this was a case like Oresearch. However, this case is not about choosing between the true physical location of a reference point and the location erroneously recorded on a map. This case is about which of two buildings (or complexes) was objectively intended to be the reference point.
5. Aquila cites three cases in support of paragraph 78 of its submissions: Bunderra, Owners - Strata Plan No 4983 v Canny[150] and Slough Estates Ltd v Slough Borough Council (No 2).[151] As will be seen, those cases do not establish that Identification Evidence is limited to observable features of the land. Rather, they establish that Identification Evidence may include the nature or physical features of the land.
6. In the passage of Bunderra cited by Aquila, Payne JA said:[152]

The principles relating to the construction of development consents were not controversial on the appeal. Those principles were explained by the primary judge at [62]-[63]. In particular, it was common ground that the following principles applied:

...

(4) as a general rule, a development consent, being a public document operating in rem for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Evidence as to the nature or physical features of the land may also be admissible for that purpose, at least those features observable by a third party at the time of the consent: Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 at [44]; Shell Co of Australia at 637.

1. Payne JA made a statement to the same effect in the second case cited by Aquila, Owners - Strata Plan No 4983.[153]
2. As to the third case cited by Aquila, Slough, Aquila relied[154] upon the following passage from the judgment of Lord Reid:[155]

[E]xtrinsic evidence may be required to identify a thing or place referred to, but that is a very different thing from using evidence of facts which were known to the maker of the document but which are not common knowledge to alter or qualify the apparent meaning of words or phrases used in such a document. Members of the public, entitled to rely on a public document, surely ought not to be subject to the risk of its apparent meaning being altered by the introduction of such evidence.

1. As appears from the earlier extract of the passage of Bunderra cited by Aquila, Payne JA cited two cases.
2. In Allandale, the first case cited by Payne JA, Meagher JA said:[156]

Evidence may also be led to identify a thing or place referred to in the consent ... That evidence is not led to vary the consent but to identify the thing referred to in it. Evidence as to the nature or physical features of the land or site may also be admissible for that purpose.

1. In support of this, Meagher JA cited Parramatta City Council v Shell Co of Australia Ltd[157] (Shell Co), the second case cited by Payne JA. In Shell Co, the court said:[158]

As has been held, it is not permissible, in order to determine what development has been approved, to construe the document constituting the approval in the same way as if it evidenced some inter partes transaction, for development approvals operate, as it were, in rem and may be availed of by subsequent owners and other occupiers of the land. The nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks.

1. These cases establish that Identification Evidence is not limited to observable features of the land. Rather, such evidence is one type of Identification Evidence.
2. I earlier noted Aquila's reliance on a passage from Lord Reid's judgment in Slough. In the same case, Lord Pearson, with whom Lord Reid,[159] Lord Morris,[160] Viscount Dilhorne,[161] and Lord Diplock agreed,[162] said that the purported planning permission under consideration was not self‑contained on its face because it incorporated by reference 'the plan submitted' and referred to 'Application No. U.L. 21'. Under the relevant legislative framework, the company should have furnished a site plan with the application, sufficient to identify the land to which the application related. It did not do this. Lord Pearson held that, in those circumstances, it was right to examine the correspondence leading up to the grant of the planning permission, in order to ascertain what the application was, how the plan was submitted, and what function it was intended to perform.[163]
3. Aquila accepted that it was permissible to have regard to materials leading up to the grant of the Rocklea Temporary Reserve to assist in the identification of the area reserved.[164] To be clear, Aquila accepted that it was permissible to have regard to such materials to identify what the area was, but not to amend the area that had been reserved.
4. Aquila further submits:[165]
   1. [Aquila's] case focuses on external appearances.
   2. The actual use to which a building is put and its occupation are not relevant, except insofar as they affected external appearances or may inform the Court's findings on external appearances.
5. This is in stark contrast to Aquila's pleaded case. Aquila pleads the relevant factual matters as being:[166]

1. There is, and at all material times has been, a pastoral station located in the Pilbara Region of the State of Western Australia known as Rocklea Station. 2. At an unknown date prior to June 1943, a building was erected at Rocklea Station, approximately at the following location: Map Grid of Australia - Zone 50, 546101.6 metres east and 7469012 metres north (Old Homestead). 3. In 1966, a new, substantial homestead was erected:

(a) at Rocklea Station, approximately 390 metres northwest of the Old Homestead (more precisely at the following location: Map Grid of Australia - Zone 50, 545747.3 metres east and 7469181.8 metres north); and
>
> (b) at a cost of $14,000 (in 1966 terms),

1. In the period between about 26 May 1967 - 4 August 1967:

(a) Rocklea Station was the subject of a pastoral lease (no 3114/671), granted to the following 3 lessees:

(i) Kenneth Ernest Troy (then about 37 years old);

(ii) Frank Troy (then about 60 years old), being Kenneth Ernest Troy's father; and

(iii) Allan Ross Troy (then about 39 years old), being Kenneth Ernest Troy's brother and Frank Troy's son,

(b) Frank Troy was domiciled at Lot 1633 Herdsman Parade, Wembley, Perth, Western Australia;

(c) Frank Troy was not domiciled at Rocklea Station;

(d) Kenneth Ernest Troy, his wife, Agnes Esther Troy, and their children resided and were domiciled at the New Homestead;

(e) the New Homestead was the main residence on Rocklea Station;

(f) no-one was domiciled at the Old Homestead; and

(g) the Old Homestead was:

(i) a modest, insubstantial structure;

(ii) made from wood (mulga trees) and tin;

(iii) unlined, with partitioned rooms and no electricity;

(iv) in disrepair, rotting and dilapidated; and

(v) without a bathroom or other facilities.

1. The submission that the actual use is not relevant is also difficult to reconcile with Aquila's oral submission that 'Rocklea Homestead' 'means the homestead that is more prominent and more likely to remain in use'.[167]
2. I do not accept that Identification Evidence is limited to external appearances. I do not accept that primacy must always be given to observable features. Evidence that is logically probative of the identification of a thing or place is admissible. The limitations on what evidence is admissible will turn on whether the evidence is probative of the identification, not its type. As for the weight of the evidence, this will depend on the circumstances, including the evidence itself, the other available evidence, and the thing sought to be identified.
3. Further, I note that, at times, Aquila appeared to submit that evidence could only be Identification Evidence if it was accessible to the public. At other times, Aquila appeared to submit this went only to the weight of the evidence.[168] I reject these arguments for the same reasons as I rejected Aquila's arguments as to accessibility in relation to incorporated documents.[169]
4. Finally, and for completeness, I note that BHP sought to rely on a passage in Hubertus Schuetzenverein Liverpool Rifle Club Limited v Commonwealth of Australia[170] in support of a submission in relation to Identification Evidence. However, in that passage, Wilcox J was expressly dealing with circumstances in which incorporated documents could be considered.[171]

The case of Hunter did not expand the scope of admissible evidence

1. In its written submissions, BHP said that it was held in Hunter 'that it is generally permissible to have regard to a development application and other publicly available documents for the purpose of determining the scope and nature of the development to which consent was granted'.[172] Having regard to the context in which that submission was made, BHP did not appear to be suggesting that Hunter establishes a general principle that regard may be had to such documents even if the documents were not incorporated and were not necessary to identify a thing or place referred to in the consent.[173]
2. In its oral closing submissions, BHP appeared to go further. BHP contended that Hunter 'expand[ed] what was perhaps otherwise thought on submissions, based on other cases, that one couldn't have regard to documents such as this. The court was saying yes, you can, and what the court was highlighting in particular, while still using the language of extrinsic evidence and incorporation, was that the important principle was that these are public documents'.[174] Aquila certainly interpreted BHP's submissions as a contention that Hunter had expanded the material that could be examined.[175]
3. If BHP was making that contention, I do not accept it. At the very least, Hunter was dealing with a particular statutory scheme.[176] BHP itself noted that Preston CJ had cautioned in Hunter that care must be taken in applying principles developed in respect of particular legislation to matters arising under other legislation.[177]

1. BHP submits that the statements in the planning cases as to what evidence is admissible are not intended to be principles of limitation.[178] This submission is, with respect, inconsistent with the authorities[179] and I do not accept it.

Construction of the documents creating a temporary reserve

1. It was common ground that the planning cases provided useful guidance as to the proper approach to the construction of the documents creating a temporary reserve. I agree.
2. It was also common ground that care must be taken in applying principles developed in respect of particular legislation to matters arising under other legislation.[180] I agree.
3. BHP submits that there are differences in the legislative footing of planning consents compared with temporary reserves. It submits that these differences make it inappropriate to automatically adopt the same construction approach. I accept that the same approach should not be automatically adopted. However, as I will explain, I do not accept that the different legislative framework justifies a different approach in this case.
4. BHP relies on four points of distinction:[181]
   1. The Repealed Act did not provide for persons to apply for a temporary reserve or rights of occupancy. In development cases, great weight is placed on the fact that the legislation generally provides for the making of an application and then approval of the application.
   2. A development consent is particular to the property concerned, whereas a mining tenement or right of occupancy must fit in with surrounding tenements and rights of occupancy, which requires a consistent approach to construing the area to which grants relate.
   3. Under the Repealed Act, the Minister did not have the power to create a right of occupancy, as that required the approval of the Governor. Further, even with a temporary reserve, it would lapse if it was not confirmed by the Governor within 12 months.
   4. The granting of a development consent involves a question of what a private individual can do with their property. In this case, the context is the allocation of the right to exploit the valuable mineral resources of the State as between competing parties.
5. I do not accept that any of the differences would logically support a broader scope of admissibility in mining cases. Indeed, the second and fourth factor would, if anything, support a narrower approach.
6. In any event, despite raising these points of distinction, BHP appears to largely adopt the approach taken in the planning cases to the construction of the documents creating the Rocklea Temporary Reserve. BHP accepts that the task of construction is not a search for the Minister's subjective intention. It accepts that the relevant documents must speak according to their written terms construed in context and having regard to their enduring function. It accepts that the context does not include surrounding circumstances that may have been known only to its predecessors or the Minister.[182]
7. In my view, there is nothing in the different legislative framework that would justify an approach to construction different to the general approach used in planning cases. As with a development consent, the creation of a temporary reserve is a unilateral act of an authority. It is not the result of a bargaining process between parties. Its effect may go beyond the applicant. This is because any rights that were exercisable over that land while it was Crown land cease to be exercisable.[183] In these circumstances, it is appropriate to adopt a narrower approach to extrinsic material than the approach taken to the construction of a commercial contract.[184]
8. Ultimately, there was no dispute as to the broad principles. It was common ground that I could have regard to:[185]
   1. anything expressly incorporated;
   2. anything incorporated by necessary implication; and
   3. Identification Evidence (extrinsic evidence to identify, objectively, a thing or place referred to in the relevant document).
9. However, the parties disagree as to the extent of the material that was incorporated by necessary implication or was Identification Evidence, and what conclusions should be drawn from that material.

What material was incorporated by necessary implication?

1. It was common ground[186] that my task is to identify which homestead was objectively intended by the Minister to be the reference point from which the datum peg was measured.[187]
2. It was common ground that the Attachment to the Application Letter was incorporated into the Reservation Document by necessary implication.
3. In the Attachment, Area (6) was described as:[188]

Datum peg 10.0 miles at bearing 259o 00' from Rocklea Homestead (From Datum peg, the baroundaries [sic] of Area (6) are:

1. By approving the application for a temporary reserve over Area (6), the Minister temporarily reserved an area of land defined by reference to 'Rocklea Homestead'. There were (as a matter of fact) two places that could have been referred to as the 'Rocklea Homestead' at the time of the approval. Therefore, if only the Application Letter is considered, there were two places that could have been the 'Rocklea Homestead' by which the area was defined.[189]
2. Aquila submits that the Application Letter (including the Attachment) is the only document incorporated expressly or by necessary implication.[190] BHP disagrees. The parties disagree largely because of their different views as to whether the Governor's role was relevant and whether the reference point 'Rocklea Homestead' was ambiguous.

1. The parties differently characterise the exercise in which the Minister was engaged.
2. Section 276 of the Repealed Act states:

The Minister and, pending a recommendation to the Minister, a warden, may temporarily reserve any Crown land from occupation, and the Minister may at any time cancel such reservation: Provided that if such reservation is not confirmed by the Governor within twelve months, the land shall cease to be reserved.

The Minister may, with the approval of the Governor, authorise any person to temporarily occupy any such reserve on such terms as he may think fit, but subject to the provisions of section two hundred and seventy‑seven.[191]

1. It was common ground that the Governor could only confirm the reservation of the same land temporarily reserved by the Minister.[192]
2. It was also common ground that land may be reserved under s 276 without any subsequent grant of a right of occupancy. However, BHP emphasises that is not what happened here.[193]
3. BHP submits that, in this case, the Rocklea Temporary Reserve is relevant only because it was created in order to grant a right of occupancy to explore for iron ore to its predecessors in title, and because it continued in force until 1982 when BHP's Exploration Licence was granted in accordance with the transitional provisions of the Mining Act that operated by reference to a then subsisting right of occupancy.[194] It points out that the rights of occupancy could not have existed unless the Rocklea Temporary Reserve also existed in 1982, and the Rocklea Temporary Reserve could only have existed in 1982 if it had been confirmed by the Governor (because otherwise it would have lapsed after 12 months).[195]
4. BHP submits that the task is to construe the Repealed Act as it operated in those circumstances.[196]
5. BHP points out that the right of occupancy granted to its predecessors in title was not a mining tenement as ordinarily understood, but a statutory right to occupy land enlivened by executive action.[197]
6. BHP further points out that, for a right of occupancy to exist under the Repealed Act, the Governor had to be involved in both the reservation and the granting of a right of occupancy. The reservation would lapse if it was not confirmed by the Governor within 12 months. The Minister could only authorise a person to occupy land temporarily reserved with the approval of the Governor.[198] Accordingly, the Governor was a necessary part of the statutory process.[199]
7. BHP submits that, therefore, the Governor's decision and the Minister's decision must be read together and construed consistently.[200] It submits that it can be assumed that what the Governor confirmed is what the Minister created.[201] BHP submits that it is therefore permissible to have regard to any documents incorporated into the Governor's decision. It submits that this is to explain the Reservation Document, not to contradict it.[202]
8. I do not accept BHP's submissions for three reasons.
9. First, the task of construing the Repealed Act is a task of statutory construction. While the manner in which the provisions could operate may be a relevant consideration in that task, the proper construction will not vary depending on the facts in a particular case (and I do not think BHP was intending to submit that it would).
10. Second, and related to the first point, land may be reserved without a right of occupation subsequently being granted.[203]
11. Third, I accept that both the Minister and the Governor are involved in the temporary reservation of land and the granting of rights of occupancy. However, I am asked to determine, in effect, the area of the Rocklea Temporary Reserve. The making of a temporary reserve is achieved by a decision of the Minister (or, pending a recommendation to the Minister, a warden). What happens afterwards may affect the duration of a temporary reserve and whether a right of occupancy over the area is later granted. However, the area of a temporary reserve is fixed by the Minister's decision. Once that occurs, the reserved land ceases to be 'Crown land'[204] such that any rights that might otherwise have been exercisable by an individual under the Repealed Act over that land while it was Crown land cease to be exercisable.[205] The Governor's role is irrelevant to the creation of a temporary reserve.
12. Accordingly, I do not accept that it is permissible to have regard to any documents incorporated into the Governor's decision.
13. BHP further submits that the documents show that the Minister and the Governor shared a common understanding as to the location of the Rocklea Temporary Reserve. It submits that they understood that it was defined by reference to the place marked as the homestead on the Onslow 13 Plan, which could only have been a reference to the Old Homestead.[206] BHP submits:[207]
    1. ... As it was the Minister himself who sought the Governor's confirmation and approval by reference to a particular plan, which plan pre‑dated the Minister's decision and formed part of the departmental process leading to the recommendation that the Minister accepted, it defies common sense to exclude consideration of that plan when seeking to ascertain the location of [the Rocklea Temporary Reserve].
14. I do not accept this. Whether such a document would be incorporated into the Reservation Document would depend on whether it was incorporated expressly or by necessary implication. If it was not incorporated, it may be admissible as Identification Evidence. If it was neither incorporated nor admissible as Identification Evidence, it would not defy common sense to ignore it.
15. BHP next submits:[208]
    1. ... it is contrary to the maxim 'ut res magis valeat quam pereat' (which, when expressed literally, means 'it is better for a thing to have effect than be made void'), to conclude that the Governor confirmed and approved a different area to that which was reserved by the Minister. [Aquila] do not advance such a case. Yet that is a corollary of their case if 'Rocklea Homestead' is taken to mean the New Homestead. Where reasonably open, such a conclusion should be avoided. (references omitted)
16. BHP cited [31] of Keen v Telstra Corp Ltd[209] in support of the first sentence. In that paragraph, Rares J said:

[T]he maxim of interpretation chartarum benigne faciende est ut res magis valeat quam pereat ... can be of assistance where an instrument, be it legislative, administrative or a document inter partes, is open to two interpretations, one of which would make the instrument effectual in law, and the other would make it ineffectual. The rationale behind the principle rests on the presumed intent of the person or body promulgating the instrument to create a valid instrument. Where what is done is the exercise of a power, the presumption is that the body intends to act within, not outside, its powers.

1. I do not accept that it would necessarily follow from the acceptance of Aquila's case that the Governor would have confirmed and approved a different area to that which was reserved by the Minister. It would only follow if, the Minister having reserved an area defined by the New Homestead (on Aquila's case), the Governor then confirmed an area defined by reference to the Old Homestead. That would only be so if the Minister's reference to the area 'hachured "red"' on the Page 11 Plan in the Minister's Recommendation is found to have been an area defined by reference to the Old Homestead. And this would only be found if it was inferred that, because the New Homestead did not exist at the time of the adoption of the Onslow 13 Plan (from which the Page 11 Plan was extracted), it must have been defined by reference to the Old Homestead. As I discuss later, I would not draw that inference.[210]

Is the term 'Rocklea Homestead' (legally) ambiguous?

1. The parties disagree as to whether the term 'Rocklea Homestead' is ambiguous.
2. BHP submits that the term 'Rocklea Homestead' is plainly ambiguous, for two reasons.
3. BHP first submits that Aquila simply assumes, without explanation, that 'Rocklea Homestead' is a homestead on Rocklea Station in the Pilbara region.[211]
4. Aquila submits that it is evident from the Application Letter that the 'Rocklea Homestead' referred to was a homestead in the Pilbara region.[212] I accept this. In the Application Letter, the areas sought to be made temporary reserves were said to cover a maximum of 50 square miles and to all be generally around Temporary Reserve 3156.[213] Temporary Reserve 3156 is itself shown on the Page 11 Plan.[214] Further, the other areas were described by reference to Mount Newman or the 'Newman Sheet'. In my view, the reference to 'Rocklea Homestead' in the Application Letter could only have been a reference to a homestead in the Pilbara region.
5. Further, Aquila points out that it was an agreed fact that, at all material times, there was a pastoral station located in the Pilbara region of the State of Western Australia known as Rocklea Station. There is no evidence that there was more than one Rocklea Station in the Pilbara. In my view, a reference to a homestead on Rocklea Station in the Pilbara region called 'Rocklea Homestead' was a reference to a homestead on Rocklea Station.
6. BHP's second point is that there were, in fact, two homesteads at the time the Rocklea Temporary Reserve was created. BHP asserts that there are documents which identify that the Minister was objectively intending to refer to the Old Homestead. It submits that those documents were incorporated by necessary implication.[215] Ultimately, these documents were all said to lead to the incorporation of the Page 11 Plan.[216]
7. Aquila submits that there is no need for other documents. It submits that there is no material ambiguity.[217] It submits that[218]

the instrument of reservation, read with the Application, is complete on its face and not ambiguous or otherwise such that a reader of it, or a person acquainted with the physical features of the land, would conclude that recourse to other documents ... is necessary to give it a sensible meaning.

1. During the hearing, it became apparent that Aquila's point was that the words 'Rocklea Homestead' are not legally ambiguous, because the words can only mean a homestead on Rocklea Station. Aquila accepts that there were two places that could have been the 'Rocklea Homestead'. It says, however, that this was a factual ambiguity. It says that the debate is simply about the appropriate characteristics to be taken into account in determining the factual question of which of the two homesteads was the 'Rocklea Homestead'.[219]
2. I accept that the ambiguity is factual. I accept that a document that could resolve a factual ambiguity will not be incorporated by necessary implication. However, such documents may be admissible as Identification Evidence.[220]

If it is legally ambiguous, is the Page 11 Plan necessarily incorporated?

1. In case I am wrong, and the term is legally ambiguous, I will consider BHP's submissions as to the critical document that it says was incorporated by necessary implication to resolve the ambiguity. This was the Page 11 Plan.[221]
2. Before considering this, I will dispose of a red herring.

The origin of the Page 11 Plan - a red herring

1. It was not disputed[222] that the Page 11 Plan was an extract from a version of the Onslow 13 Plan.[223] There was some debate as to which version of the Onslow 13 Plan it had been extracted from.[224] In my view, this issue was of no relevance.
2. The Onslow 13 Plan was a public plan of the Department.[225]
3. Mr Clegg gave evidence as to the public plans held by the Department prior to the introduction of the 'Tengraph' electronic mapping system.[226]
4. Mr Clegg explained that the public plans were based on Department of Lands' plans. He said that each public plan was marked in series with the date on which it came into operation (known as the commencement or adoption date). He said that, when a public plan was updated for re‑issue by the Department, the earlier public plan was notated as being cancelled and ceased to have effect on the date the new public plan was adopted.[227]
5. Mr Clegg said that the public plans displayed the geospatial parameters for each mining tenement and temporary reserve that, as at the commencement date of that public plan, had been applied for and granted and, in the case of temporary reserves, had been approved by the Minister, over the area depicted by that public plan.[228]
6. Mr Clegg said that, following the adoption of a public plan, the 'base plan' (being the public plan as at its adoption date) was manually updated to record mining tenements and related pending applications received by the Mining Registrar, together with temporary reserves as and when applications were approved by the Minister.[229]
7. Mr Clegg said that, when a new or replacement public plan was adopted, the draftsman would prepare two copies of the replacement public plan, erasing those mining tenements relinquished prior to the adoption date (other than granted mining tenements for which a survey of boundaries had been registered).[230]
8. It was common ground that, whichever version the Page 11 Plan had been extracted from, the base plan of the Onslow 13 Plan had been created in 1960. That is, the printed material on the Page 11 Plan had come from a plan created in 1960.
9. The part of the Onslow 13 Plan that is extracted on the Page 11 Plan purports to depict the location of a homestead on Rocklea Station by a solid black square printed to the left of the italicised and uppercase typed word 'ROCKLEA'. As the base plan of the Onslow 13 Plan was created in 1960, well before the New Homestead was built, the square could only have been purporting to depict the Old Homestead. This is so regardless of which version of the Onslow 13 Plan was the source of the extract in the Page 11 Plan, as all versions would have used the base plan from 1960 which included the printed square and text.

1. BHP submits that the Page 11 Plan is admissible because[231] it was incorporated by necessary implication into the Reservation Document. As I will explain, I do not accept this.
2. BHP submits that, by accepting the recommendation of the Under Secretary to approve 'Application No 4286H', the Minister objectively intended to create a temporary reserve over the area that the Department had identified in relation to that application.[232]
3. BHP points out that the Repealed Act dealt with rights to exploit the valuable resources of the State in a context where there was the prospect of competing applications for the same land. It points out that, in the Reservation Document, the Under Secretary had recommended that two of the temporary reserves be refused because one overlapped with existing temporary reserves and the other overlapped with temporary reserves that the Under Secretary was going to recommend be granted to Mr Nicholas.[233]
4. BHP submits that it does not matter whether, as a matter of construction, the Minister was approving the recommendation or the application. BHP submits that, either way, the Minister intended to create a temporary reserve over the area that the Department had identified. BHP submits that the Minister must have objectively intended to reserve a defined area that was available to be reserved. BHP submits that the Minister needed to be, and must have been, satisfied that the area was available to be reserved. Therefore, says BHP, the Minister must have been relying on some information that allowed that conclusion to be reached.[234]
5. BHP submits that documents that would have allowed that conclusion to be reached were, therefore, incorporated by necessary implication into the Reservation Document. BHP submits that those documents were documents that led to the identification of, and showed, the area the subject of the Rocklea Temporary Reserve.[235]
6. BHP submits that, once those documents are considered, it can be seen that[236]

the area the Department, and therefore the Minister, designated as 4286H was as described in Application Area (6) with the place 'Rocklea Homestead' being a place depicted on the [Page 11 Plan], which was a copy of Mines Department plan Onslow 13 (10 mile topographical).

1. BHP acknowledges that the marked location of the homestead on Rocklea Station on the Onslow 13 Plan does not reflect the actual location of the Old Homestead (or the New Homestead). It submits, however, that, as the Onslow 13 Plan was printed in 1960, the homestead must have been the Old Homestead.[237]
2. I asked how the Department could have worked out what area was available without knowing exactly where the Rocklea Homestead was. BHP submitted that the Department would know because all current temporary reserves were similarly plotted on those plans, so there would be a 'consistent base'. It submitted that the Department would simply check the respective positions on the relevant plan.[238]
3. I put to BHP that this could only be done accurately if the same reference point on the plan was used. For example, if a temporary reserve was defined by reference to a landmark incorrectly recorded on a plan and another temporary reserve was defined by a different landmark, it could not be determined whether the areas overlapped without knowing the true location of the landmarks. BHP accepted this. However, it submitted that the Department was trying to avoid overlaps and that this was more likely to be achieved by using a consistent plan rather than referring to something that could be anywhere.[239]
4. It may well be more likely that overlaps will be avoided if a consistent plan is used compared with 'referring to something that could be anywhere'. I do not accept, however, that the marking out of the Rocklea Temporary Reserve on the Page 11 Plan allowed the Department to, or was intended to, precisely define that area.
5. I earlier[240] noted that the parties agreed that the plans were used to enable the Department to assess the Application, including to check whether the land was available for temporary reservation. They disagreed as to whether the plans served the purpose of identifying the area over which a temporary reserve was being applied for. As I explained earlier, I consider that the plans did serve the purpose of identifying the area, at least approximately.
6. That said, in the case of the Page 11 Plan, it was no more than approximate. The note at the base of the Onslow 13 Plan from which the Page 11 Plan was extracted reads:

The position of the homesteads, fences, tracks and wells, in the Pastoral Areas are only approximate; excepting where fixed by survey.

1. Aquila submits that the Minister would not independently satisfy him or herself that the area was available. Rather, he or she would proceed on the basis that the process for checking for encroachments had occurred and the area was available.[241] I accept this submission. There is nothing in the materials leading up to the Minister's decision to indicate that the Minister did an independent check. Nor does it seem likely that that would have occurred in practice.

1. For these reasons, I do not accept that the Page 11 Plan was incorporated by necessary implication. My conclusions can be summarised as follows.
2. First, I do not accept that it is permissible to have regard to any documents incorporated into the Governor's decision. Determining the area of the Rocklea Temporary Reserve requires me to construe the documents which created it. The Rocklea Temporary Reserve was created by the Minister, before the Governor's involvement.
3. Second, I do not accept that the Page 11 Plan was incorporated by necessary implication into the Reservation Document. It is unnecessary to have regard to it to understand what the Minister objectively intended the area to be. There was no legal ambiguity.
4. In any event, even if I am wrong and the Page 11 Plan was incorporated, I do not consider it would assist BHP. This is because it would only assist BHP if it should be inferred that, because the New Homestead did not exist at the time of the adoption of the Onslow 13 Plan (from which the Page 11 Plan was extracted), the Rocklea Temporary Reserve must have been defined by reference to the Old Homestead. As I will explain in the next section, I would not draw that inference.

What is the Identification Evidence? (Evidence to identify which homestead was the point of reference)

1. Aquila contends that the evidence shows that the 'Rocklea Homestead' was the New Homestead. BHP contends the opposite.
2. In addition to the agreed facts, both rely on various documents. BHP relies primarily on the Page 11 Plan. Aquila relies on other documents, including a letter written in 1968 by Frank Troy. Both also rely on evidence from people who had lived on, or visited, Rocklea Station in the 60s and 70s. BHP further relies on an asserted evidentiary presumption.

1. The following facts were agreed:[242]

1. There is, and at all material times has been, a pastoral station located in the Pilbara Region of the State of Western Australia known as Rocklea Station. 2. At an unknown date prior to 1966, a building was erected at Rocklea Station, approximately at the following location: Map Grid of Australia - Zone 50, 546101.6 metres east and 7469012 metres north (Old Homestead). 3. Without implication as to the situation during and after 1966, prior to 1966, the Old Homestead was a pastoral homestead which comprised, at least, living quarters, an office and a store. 4. The Old Homestead:

(a) was made from corrugated iron or tin and bush timber (mulga and blood wood); and
>
> (b) had, amongst other facilities, a bathroom or wash house attached to it.

1. In the period between about 1 June 1966 (or earlier) to 7 October 1973, Rocklea Station was the subject of the Pastoral Lease (or predecessor pastoral leases) under the Land Act 1933 (WA) (Repealed), granted to or held by the following 3 lessees:

(a) Frank Troy (about 60 years old in 1967), being the father of Allan Ross Troy and Kenneth Ernest Troy;
>
> (b) (until 15 September 1969) Allan Ross Troy (about 39 years old in 1967); and
>
> (c) Kenneth Ernest Troy (about 37 years old in 1967),

1. On a date unknown in 1966, but after 29 March 1966, a new building was erected at Rocklea Station, approximately 390 metres northwest of the Old Homestead (more precisely at the following location: Map Grid of Australia - Zone 50, 545747.3 metres east and 7469181.8 metres north) (New Homestead).
2. Frank Troy never moved into nor lived in the New Homestead.
3. Sometime after the New Homestead was erected, Kenneth Ernest Troy, his wife, Agnes Esther Troy, and their children moved into and thereafter lived in the New Homestead.
4. On or about 7 October 1973, Frank Troy and Kenneth Ernest Troy were both killed in a motor vehicle accident.

1. Aquila accepts that the Page 11 Plan is admissible as Identification Evidence but says that it is not probative.[243] Although I do not accept all of Aquila's submissions on this point,[244] I agree that the Page 11 Plan is not probative.
2. Some of the submissions made by Aquila on this topic are not disputed by BHP.
3. Aquila points out that the location of the square representing the homestead on Rocklea Station on the Page 11 Plan is not accurate. This was common ground. The evidence shows that the square is approximately 2.8 km (with a margin of error) from the true location of each of the Old Homestead and the New Homestead.[245]
4. Aquila also points out that it is clearly recorded on the Onslow 13 Plan that the position of various objects, including homesteads, was only approximate unless fixed by survey.[246] BHP did not dispute this either.
5. BHP says, however, that the Minister must have intended to define the Rocklea Temporary Reserve area by reference to the Old Homestead, because the area was mapped by reference to what must have been the Old Homestead. It will be recalled that the Page 11 Plan was extracted from a base plan of the Onslow 13 Plan created in 1960. It marked with a square what was said to be a homestead in Rocklea. In 1960, there was only one homestead on Rocklea Station.
6. Aquila accepts that the Page 11 Plan was extracted from a base plan created in 1960. It accepts that in 1960 there was only one homestead on Rocklea Station. However, it submits that it cannot be inferred from the fact that the Page 11 Plan was made at a time when there was only one homestead that, by defining Area (6) by reference to 'Rocklea Homestead', the Minister objectively intended that the area would be defined by reference to the Old Homestead.[247]
7. I accept this submission.
8. The Minister was presented with a recommendation to approve five temporary reserves. The Minister was told that the areas of those five would not encroach on any existing reserves.
9. I will assume, favourably to BHP, that the Page 11 Plan was provided to the Minister. The Page 11 Plan was used to record, approximately, the area sought to be made a temporary reserve, and to check whether the proposed temporary reserve would overlap with any other lease, licence or reserve. The Page 11 Plan purported to show the area of the proposed reserve of Area (6), in a location some distance away from the square purporting to represent the approximate location of a homestead on Rocklea Station.
10. The base plan from which the Page 11 Plan was extracted was created in 1960, when there was only one homestead. This, however, was mere happenstance. I do not accept that, simply because the base plan predated the erection of the second homestead, the Minister objectively intended the reference point to be the Old Homestead. I do not accept that the Page 11 Plan is probative of the contention that 'Rocklea Homestead' was the Old Homestead. At most, it illustrated that Area (6) would not encroach on any existing reserves or tenements.

1. BHP also relies upon the 1968 Mt Bruce 1:250,000 public plan.[248] BHP notes that this plan showed two homesteads in the approximate location of the Old Homestead and the New Homestead. BHP submits this is inconsistent with the New Homestead having become 'the' homestead on Rocklea Station by August 1967. BHP further submits that the plan also supports BHP's case because it indicates the homestead on the east (the Old Homestead) had a 'W/T' (wireless transmitter). It submits that that is consistent with the pastoral station office being in the Old Homestead.[249]
2. I accept these submissions. However, I consider that the probative force of this plan is so weak that I will not take it into account.

1. Aquila relies upon an extract from a document held by what was then called the Department of Native Affairs. The document appears to be a report on an inspection of Rocklea Station on 25 March 1966.[250] Aquila relies upon this document as it is said to record that it was envisaged that the Old Homestead was going to be used as quarters for workers. Aquila acknowledged that there was no evidence to suggest that had ever happened.[251] In my view, this document is not probative. It records only something that was thought could happen in the future, but that did not happen.

1. Aquila relies upon a letter written on 21 August 1968 by Frank Troy, on behalf of the pastoralists of Rocklea Station, to the Under Secretary for Lands (Pastoralists' Letter).[252] Mr Troy wrote that in '[t]he latter part of 1966 we erected a New Homestead at a cost of $14000'. He included a sketch of Rocklea Station showing the approximate locations of various structures on the land.[253]

1. Aquila submits that $14,000 in 1966 was a very significant amount. Aquila points out that it was significantly more than the annual rent for Rocklea Station of $412.50. Aquila also notes that it was significantly more than the amounts spent by the pastoralists on improvements in two successive financial years, being $2,600 in financial year 1968,[254] and $994 in financial year 1969.[255] I accept that $14,000 in 1966 was a very significant amount.
2. BHP submits that it was in the pastoralists' interest to inflate the amount it spent on the station.[256] Aquila points out that Mr Troy had no motive to inflate the amount spent on the New Homestead.[257] Under the pastoral lease, the lessees were required to expend a sum not less than two and a half times the rent payable.[258] Under the Land Act 1933 (WA),[259] the Minister had a discretion to waive the rent based on the money spent on improvements. However, any money spent on building a house or homestead did not count towards the expenditure obligation.[260] I accept that Mr Troy had no motive to inflate the amount spent on the New Homestead.
3. BHP concedes that a significant amount would have been needed to build the New Homestead. However, it submits that it is not known what that $14,000 figure encompassed.[261]
4. In my view, this submission does not detract from Aquila's position. The precise amount spent is not the critical fact. The critical fact (from Aquila's point of view) is that the amount spent was considerable, which I accept.

1. Aquila also sought to rely on the Pastoralists' Letter in relation to Mr Troy's descriptors of the buildings on the land.
2. In its written opening submissions, Aquila said it was significant that Mr Troy described the New Homestead as 'New Homestead', and not as an additional homestead.[262]
3. In its oral opening submissions, Aquila referred to the sketch Mr Troy had attached showing the approximate locations of various structures on the land. In the letter, Mr Troy said, in effect, that the marks 'N.H.' and 'O.H' meant 'New & old House'.[263] Aquila asserted that Mr Troy's use of 'house' in this context indicated, in effect, that Mr Troy considered the Old Homestead had become merely a home, while the New Homestead was 'the homestead'.[264]
4. I do not accept this. The only time Mr Troy used the word 'house' was when he said that the marks 'N.H.' and 'O.H' meant 'New & old House'. This could only mean 'the new house' and 'the old house'.
5. I also queried how, even if Mr Troy was asserting that the Old Homestead had become merely a home, while the New Homestead was 'the homestead', this could be relevant. Aquila accepted it was an opinion, but submitted it went to Mr Troy's state of mind.[265] I do not accept this made it relevant. Mr Troy's state of mind is not relevant to the task of deciding which homestead the Minister objectively intended to be the reference point for the Rocklea Temporary Reserve.
6. In closing submissions, Aquila said that it was admissible as non‑expert opinion evidence from a person who may have had the best opportunity to see the building and its characteristics at the relevant time.[266] I do not accept that this would make it admissible. Even if it is significant that Mr Troy referred to a 'New Homestead' rather than an additional homestead, and even if he said (contrary to my view) that the Old Homestead was a house and the New Homestead a homestead, we would not know why. There is no hint as to what he thought 'homestead' meant, nor what characteristics he thought were relevant in differentiating a new homestead from an additional homestead, or a homestead from a house.

1. For completeness, I note that Aquila repeatedly[267] referred to an email sent by Mr Stevens of the Department to Ms Keith at BHP on 12 November 2018[268] (Stevens' November 2018 email).
2. The contents of the email are set out later.[269] In short, the email was a summary made in late 2018 of what Mr Stevens understood the Department had known in 2005 and of events in 2018 that led to the changing of the boundary by reference to the New Homestead. Aquila noted[270] that Mr Stevens wrote that the Department was not aware in 2005 'that the actual Rocklea homestead in use' when the Rocklea Temporary Reserve was applied for was the New Homestead. I doubt that Aquila was suggesting that this was probative of which homestead the Minister objectively intended to be the reference point for the Rocklea Temporary Reserve. If, however, that was Aquila's contention, I would reject it. Mr Stevens' statement in late 2018 of what Mr Stevens believed the Department had known in 2005 and what the Department knew in 2018 is not probative of the Minister's objective intention in 1967.

1. Aquila adduced photographs to show that the New Homestead was an observable and substantial structure, and remained so until at least 2013.[271]
2. There were also photographs which showed that the Old Homestead fell into ruin. That said, even as late 2005, its location was still readily ascertainable.[272]

1. BHP tendered correspondence written by Frank Troy on behalf of the Rocklea Pastoral Company that had been found on the 'Lands and Surveys File 1'. No correspondence was found that had been written on behalf of the Rocklea Pastoral Company by anyone else.[273] This evidence supports BHP's submission that Frank Troy was the person in charge of Rocklea Station.

1. Three witnesses who had been at Rocklea Station in the 60s and 70s gave evidence of their observations: Stephen Troy, David Cox and Michael Herbert. Only Mr Herbert was cross‑examined.

1. Stephen Troy's evidence was adduced by BHP. Aquila did not challenge the accuracy (or credibility) of his evidence. His evidence was as follows.
2. Stephen Troy was born on 5 February 1961. He is the grandson of Frank Troy.[274] His father Kenneth (also referred to as Ken) Troy was Frank Troy's son.[275] Stephen Troy lived on Rocklea Station with his family for the first 12 years of his life, from 1961 to 1973.[276] Later, when he was 21 years old, he visited the station as part of a trip visiting family in Wittenoom and Karratha.[277]
3. Frank and Kenneth Troy were the lessees of Rocklea Station and ran the station together.[278] However, from Stephen Troy's perspective, Frank Troy was 'in charge'.[279] Frank Troy controlled the station chequebook and dealt with enquiries to, and correspondence on behalf of, the business.[280]
4. After Frank and Kenneth Troy were killed in an accident in October 1973, Stephen Troy and his mother and siblings moved to Perth.[281]

1. Prior to the construction of the New Homestead, Stephen Troy lived in the Old Homestead with his parents, siblings, and grandparents. Stephen Troy believes the Old Homestead was built in the 1920s or 1930s.[282]
2. In around 1965, his grandmother (Frank Troy's wife) moved to Perth.[283]
3. After the construction of the New Homestead, Frank Troy remained living in the Old Homestead until his death in 1973.[284] Frank Troy infrequently travelled away from Rocklea Station, and only ever for two or three weeks at a time.[285] Usually he would travel to Perth for business and to visit his wife.[286]
4. Stephen Troy recalled that all the business of Rocklea Station was conducted in the Old Homestead.[287] The dining room was used as the station office. The records of the business were kept in a sideboard in the dining room. The station's two‑way radios were set up on top of the sideboard.[288] Visiting surveyors and mining company representatives laid out large maps on the dining room table.[289] Contracts were negotiated and signed in the Old Homestead.[290] Dealings with employees were conducted in the Old Homestead.[291]

1. The Old Homestead was a moderately sized structure constructed from hard timber (mulga and bloodwood) and corrugated iron. It had corrugated iron walls, which were screwed into hard wood supports on the inside of the building, and a concrete floor. The roof was exposed timber with no ceiling. There was a veranda along the western side of the building.[292]
2. The Old Homestead had three bedrooms, two of which had painted hessian wall linings. It had an attached bathroom which was accessible by a door that opened to the outside. The bathroom had running water, with a shower, bath, basin and tap.[293]
3. There was a substantial kitchen that also had running water, as well as a water heater, a large woodfired stove, and ovens.[294]
4. The kitchen opened onto the dining room (which doubled as the station's office). There were two kerosene fridges in the dining room.[295]
5. There was an electric washing machine in an undercover patio outside the kitchen.[296]
6. There was a 'meat room' next to the kitchen and a storeroom for dry produce. Station workers could take provisions from the storeroom (including tobacco), the cost of which would be deducted from their salary.[297]
7. Electricity for the lights and washing machine was supplied to the Old Homestead by a generator.[298]
8. There were numerous outbuildings, utilities, and other infrastructure in the immediate vicinity of the Old Homestead, including:[299]
   1. a utilities shed;
   2. a carport where the station car was parked;
   3. fuel shed;
   4. a 'bush' (drop) toilet;
   5. an outdoor shower facility;
   6. a blacksmith's shop with a forge in it;
   7. a vehicle workshop;
   8. stockyards;
   9. maintenance sheds and storage sheds;
   10. a cool house, which was a wooden‑framed structure clad in spinifex which had water drip‑fed through. When the wind blew, the air temperature inside the cool house dropped and offered reprieve from the heat;
   11. an open‑ended shed which housed the generator. The shed originally contained a small generator to power the Old Homestead. After the New Homestead was built, a larger generator was acquired to power both homesteads;
   12. a feed shed, which was mostly used to store feed for the horses; and
   13. a vegetable garden which was adjacent to a large water tank on top of a stand.

1. Construction of the New Homestead commenced in late 1966.[300] It took some time to furnish the New Homestead and connect it to running water from a new bore and electricity from the generator next to the Old Homestead.[301]
2. Stephen Troy, his parents and siblings permanently moved into the New Homestead in 1967, on an unknown date in the period between late April and July. They remained living there until Kenneth Troy's death in October 1973.[302] As noted earlier, Frank Troy remained living in the Old Homestead until his death on the same day.
3. The New Homestead was 'just a residence'.[303] It did not have an office and was never used for administration. All the business of Rocklea Station was conducted at the Old Homestead, even after the New Homestead was built.[304]

1. The New Homestead was the largest individual building on Rocklea Station. However, it was smaller than the combined size of the Old Homestead and its outbuildings.[305]
2. The New Homestead had three bedrooms, a large lounge room, a dining room, and an indoor laundry and bathroom.[306]

1. By the time Stephen Troy and his family left Rocklea Station in 1973, both homesteads were accessible by road.[307]
2. One road, which extended to the north past the New Homestead, connected to Tom Price via the Tom Price‑Nanutarra Road. To the best of Stephen Troy's knowledge, the Tom Price‑Nanutarra Road was constructed in 1968. He recalled personnel from Main Roads camping on Rocklea Station during the construction of the road.[308]
3. Prior to the construction of the Tom Price‑Nanutarra Road, unsealed access tracks were used to travel to Tom Price from Rocklea Station. The access tracks extended to the north from the Old Homestead complex across the creek past the workers' accommodation.[309]
4. The other road was the original access road, known as the 'station road'. It extended south through neighbouring stations and eventually connected to Onslow and Carnarvon.[310]
5. Stephen Troy's evidence that the Tom Price‑Nanutarra Road was constructed in 1968 is consistent with the 1968 Mt Bruce public plan, which is said to have been based on aerial photography in 1957 and a field inspection in 1966.[311] That plan appears to record two homesteads on Rocklea Station (which was only the situation from late 1966), but does not show a road that would correspond with the Tom Price‑Nanutarra Road.[312]
6. I further note that the evidence of the other two witnesses 'on the ground' does not cause me to doubt Mr Troy's evidence that the road was constructed in 1968. Mr Cox did not give evidence as to when it was built. Mr Herbert's evidence about the road, discussed later, was unpersuasive.

1. I accept Stephen Troy's evidence.
2. Of all of the witnesses, Mr Troy had the greatest opportunity, and the greatest cause, to observe. He lived on Rocklea Station until he was 12, spending the first six years of his life living in the Old Homestead. His grandfather remained living in the Old Homestead. Stephen Troy also helped with the running of the pastoral business from the time he was 6.[313]
3. Further, Aquila did not challenge the accuracy of his evidence. In particular, Aquila did not suggest that Stephen Troy's age when he left the station was a reason to doubt the accuracy of his evidence. He also visited the station when he was 21.
4. In addition, Mr Troy's evidence is consistent with other evidence.
5. First, his evidence that his grandfather dealt with correspondence on behalf of the business was corroborated by the Lands and Survey file discussed earlier.
6. Second, his evidence that the Tom Price‑Nanutarra Road was constructed in 1968 is consistent with the 1968 Mt Bruce public plan.
7. Third, as will be seen, his evidence is largely consistent with the evidence of the other witnesses on the ground.

1. David Cox's evidence was adduced by BHP. Aquila did not challenge the accuracy (or credibility) of his evidence. His evidence was as follows.
2. Mr Cox is an elder of the Yinhawangka people. He was born in 1942. He grew up on Rocklea Station until 1951 (when he would have been 8 or 9 years old), when he and his family moved to another station.[314]
3. The Old Homestead was built by Mr Cox's father and other workers from mulga trees and corrugated iron. It had a dirt floor and a separate toilet out the back.[315] Mr Cox does not say when it was built, but his statement implies that it had been built before he was born.[316] I note this would be consistent with Aquila's pleading that it was built on an unknown date prior to June 1943.[317]
4. When the Troy family bought the station in about 1951, they moved into the Old Homestead.[318]
5. Much later, Mr Cox did mustering at Rocklea Station.[319] He did not identify precisely when this was, saying only that it was in the late 1960s into the early 1970s. Mr Cox said that, by the time he started mustering at Rocklea Station, the New Homestead had been built and Kenneth Troy and his family were already living in it.[320] Therefore, Mr Cox did not begin mustering at the station before May 1967.[321] Further, Mr Cox said he entered Rocklea Station using the available tracks and came to and saw the New Homestead before he saw the Old Homestead.[322] I infer from this that he entered the station from the Tom Price‑Nanutarra Road. I have accepted Stephen Troy's evidence that that road was constructed in 1968. Therefore, I infer that Mr Cox only began mustering at Rocklea Station sometime in 1968.
6. Frank Troy lived in the Old Homestead until his death in the early 1970s.[323] Frank Troy's wife lived in Perth, but Frank Troy still lived in the Old Homestead 'all the time'.[324]
7. The New Homestead was bigger than the Old Homestead.[325]
8. Some of the mulga wood that the Old Homestead was built from was rotting, but it was still standing. In addition to Frank Troy living there, the Old Homestead was used as an office and a store where they kept the rations.[326]
9. The store was used by station workers to buy supplies, including food such as tinned sugar, flour and tea. It continued to be used even after the New Homestead was built.[327]
10. Frank Troy was always the boss of Rocklea Station. He told the workers what to do. Mr Cox did not work with Kenneth Troy, who stayed around the station.[328]
11. I accept this evidence. It is less detailed than, but consistent with, Stephen Troy's evidence.

1. Michael Herbert's evidence was adduced by Aquila. BHP challenged the accuracy of his memory in some respects.[329] Mr Herbert's evidence was as follows.
2. Mr Herbert was born in 1946 and lived mainly in the Pilbara region from the late 1940s to the mid‑1970s.[330] From the early 1960s to the mid‑1970s, he lived on Juna Downs station, which was close to Rocklea Station.[331]
3. From about the late 1960s to 1973, Mr Herbert worked for Frank and Kenneth Troy mustering cattle on an ad hoc basis.[332] Mr Herbert has not been back to Rocklea Station since the mid‑1970s.[333]

1. The Old Homestead sat in a row with a small cottage, a fuel shed and a garage.[334]
2. The distance between the Old Homestead and the small cottage was about 3 to 4 m.[335] The garage was about 1 ‑ 2 m away from the Old Homestead.[336] The fuel shed was about 8 ‑ 10 m away from the garage (for safety reasons).[337]
3. Opposite this row of buildings, there was a blacksmith shop, a water tank, the stockyards, a windmill shed, and a mechanic garage with a below‑ground pit.[338]

1. Mr Herbert said that, when mustering on Rocklea Station, he generally organised and got the horses and mustering gear ready at the yards near the Old Homestead. During this time, he either stayed at the Old Homestead or the nearby cottage in a swag and showered under the water tank about 70 ‑ 80 m away from the Old Homestead.[339]
2. There was a two‑way radio in the office of the Old Homestead.[340]

Physical features of the Old Homestead and cottage

1. At the time Mr Herbert first saw the New Homestead, the Old Homestead was very old and run down.[341] The Old Homestead became more run down over time.[342]
2. Mr Herbert observed that the Old Homestead was 'bush built' and made from corrugated iron or tin and bush timber.[343] The corrugated iron walls were nailed on from the outside into timber bearers.[344]
3. The Old Homestead was a narrow oblong shape, with hinged shutters on the windows and three external doors.[345] It was not a large building, but it had a small veranda at the front and a narrow veranda running down the whole length of its western side.[346] On its south‑eastern side, the Old Homestead had a semi‑detached or 'lean‑to' wash house.[347]
4. The small cottage was also oblong shaped, with corrugated iron walls and roof, but it was around half the size of the Old Homestead. It had two external doors, one on the northern side nearest to the Old Homestead, and one on the opposite southern side. It had windows with shutters but no glass, and was built up on one side to make it level on the uneven ground.[348]

1. Mr Herbert cannot remember when the New Homestead was built. He first saw it in the late 1960s when he started mustering work at Rocklea Station.[349] At that time, Kenneth Troy and his family were living in the New Homestead.[350] Therefore, it must have been some time after May 1967.[351]
2. Mr Herbert said the New Homestead had fibreboard or cement board sheeting on the walls, an all‑surrounding veranda, and a corrugated iron roof with a taller and bigger structure and pitch than the Old Homestead.[352]
3. Photographs taken well after Mr Herbert worked on the station show the New Homestead had gardens, a lawn, fencing, a concrete pathway, a satellite, and air‑conditioning units. Mr Herbert said that none of those features were there when he was on the station in the mid‑1970s.[353]

1. Like the Old Homestead, the New Homestead was oblong shaped. Mr Herbert said in his witness statement that it was a lot bigger than the Old Homestead.[354] He said it was taller than the Old Homestead, and its roof structure and pitch were taller and bigger.[355] In cross‑examination, after being shown some photographs, Mr Herbert agreed that the roof structure and pitch of these two homesteads looked quite similar.[356]
2. In paragraphs 14 and 15 of his second witness statement, Mr Herbert said:[357]
   1. From my memory, if I add the size of the Old Homestead to:

14.1 the cottage to the south of the Old Homestead; and

14.2 the garage to the north of the Old Homestead,

the combined size of the three buildings was smaller than the New Homestead (including all verandas on the New Homestead).

1. From my memory, I have tried to compare the size of the Old Homestead, added to:

15.1 the cottage to the south of the Old Homestead;

15.2 the garage to the north of the Old Homestead; and

15.3 the fuel shed to the north of the garage,

(without the gaps) to the size of the New Homestead. The combined length of those four buildings (without the gaps) was about as long as the New Homestead (including all verandas on the New Homestead). Those four buildings were not as wide as the New Homestead (including all verandas on the New Homestead).

1. In cross‑examination, Mr Herbert was shown various photos and asked to measure the lengths of some of the buildings shown on the photos. He agreed that the combined length of the Old Homestead, cottage and garage was greater than the length of the New Homestead (including the verandas of the New Homestead). He did not agree that the total area of those three buildings was larger than the total area of the New Homestead and its verandas.[358]
2. Mr Herbert said that what he had said in his witness statement was just his recollection. He said that, at the time he was on the station, he was not focussing on the size of the buildings.[359] This is not surprising.
3. In addition, the way he expressed paragraphs 14 and 15 of his second witness statement indicates that he was attempting to make those comparisons in 2023 using his memory of what he had seen more than 50 years ago. That is, he was not purporting to set out a recollection that the New Homestead was larger than the Old Homestead, cottage and garage. Rather, he was using his memory of what those buildings had looked like to do that exercise in 2023. This too is not surprising.
4. I do not consider Mr Herbert's attempt to draw conclusions based on his recollection to be helpful. The photographs are objective evidence of the sizes of the buildings. However, I do accept that Mr Herbert's impression in the late 60s was that the New Homestead (including its verandas) was considerably larger than the Old Homestead.

1. Mr Herbert gave evidence as to the access to Rocklea Station. This evidence was unconvincing.
2. Mr Herbert referred to three unsealed roads or tracks on Rocklea Station. They were marked on an aerial map in orange, red and green at his direction.[360] Mr Herbert called the track marked in orange 'the dirt road'. He said it connected to the Tom Price‑Nanutarra Road (after that road had been constructed).[361] Mr Herbert called the track marked red 'the old track' and the track marked green 'the windmill track'.[362]
3. Mr Herbert gave evidence as to the access to Rocklea Station before the Tom Price‑Nanutarra Road was constructed.[363]
4. Mr Herbert said that, prior to the construction of the dirt road, access to Rocklea Station had been via the old track (marked in red). He said that he did not recall the windmill track (marked in green) being used to access Rocklea Station.[364] If the track marked in red was used to access Rocklea Station, the first homestead to be seen by a traveller on the road would be the New Homestead. If the track marked in green was used to access Rocklea Station, it is unclear which homestead a traveller would see first. It may be, as BHP submits, that it would be the Old Homestead or perhaps it would depend on the direction in which the traveller was looking.[365] However, the evidence is insufficient to permit a firm conclusion to be reached.
5. In cross‑examination, Mr Herbert was taken to large map of the Mt Bruce district showing a road approaching Rocklea Station from the southwest.[366] He appeared to accept that the road corresponded to the green track and that it was the main track used to get to Rocklea Station from the south.[367] However, he then seemed to assert that it corresponded to the old track (which was the one marked in red).[368]
6. Having regard to Mr Herbert's apparent confusion, I do not accept his evidence as to the way in which Rocklea Station was accessed prior to the construction of the Tom Price‑Nanutarra Road.
7. Mr Herbert also gave evidence about the access to Rocklea Station after the construction of the Tom Price‑Nanutarra Road. In his second witness statement,[369] he amended what he had said in his first witness statement[370] as to how the 'dirt road' connected to the Tom Price‑Nanutarra Road.
8. In his first statement, Mr Herbert said that a dirt road connected Rocklea Station to the Tom Price‑Nanutarra Road. He said that part of that dirt road was marked on an aerial map with a solid orange line.[371] In his second statement, Mr Herbert changed his mind as to the path the dirt road took from the station to the Tom Price‑Nanutarra Road, and said that it took the path marked by a dotted orange line.[372]
9. His explanation, in cross‑examination, as to why he changed his mind was far from compelling. The following exchange occurred:[373]

All right. Well, what caused you to change your recollection?‑‑‑Well, look, I was basing most of my recollections off the fact that the Tom Price Nanutarra Road was on the west side of the homestead, which is where that is. The map I - looking at there I think is quite an early one, but you can - I think you can actually see an outline just west of the - just west of the new homestead where there's a wider strip cleared and that would have been the old air strip, I think, but this is going back and we're only looking at some pretty dodgy maps here. And I don't remember actually driving along on the airstrip with the road so I thought maybe it had come out there so my recollection is that we actually didn't drive across the airstrip, we drove straight - we didn't drive along there, but we drove straight across it and out to the highway.

All right. My question was a bit more specifically what caused you to change your mind between your first and the second statement?‑‑‑Well, there was quite a lot of different (indistinct) and when I was doing my first statement, I hadn't really worked out quite what we were doing and then the second time around, I go, 'Well, maybe' - and when we discussed the map and had a look at it, I did actually change the direction because I wasn't quite sure that we really actually went to the right - curled around the house; I thought we might have gone straight across the back.

1. In my view, these answers alone are sufficient to cause me to hesitate before accepting Mr Herbert's evidence. His first statement in particular gave no hint that Mr Herbert was anything less than certain about the road access.
2. Mr Herbert said that the Tom Price‑Nanutarra Road was constructed in or before the early 1960s.[374] In cross‑examination, Mr Herbert accepted he may have been wrong about this. He said it was just there when he started mustering at Rocklea Station.[375] As I have found that that road was constructed in 1968, it appears that Mr Herbert did not begin mustering before 1968.
3. Mr Herbert's evidence is largely consistent with the evidence of Stephen Troy. To the extent that it is not, I prefer Stephen Troy's evidence, including as to when the Tom Price‑Nanutarra Road was constructed. He had a greater opportunity, and reason, to observe and his evidence was consistent with other evidence. Further, Mr Herbert's evidence as to road access was particularly unpersuasive and I do not accept it.
4. With those qualifications, I otherwise accept Mr Herbert's evidence.

1. I earlier noted the way in which Aquila's written submissions on this issue differed from its pleaded case. In short, Aquila's written submissions were to the effect that 'Rocklea Homestead' meant 'the newer, more prominent residential building' and that only physical features were relevant in identifying which of the homesteads was 'Rocklea Homestead'. Aquila's Statement of Claim pleaded a much broader array of factors, including numerous references to where people lived and did not live. For convenience, I will again set out paragraphs 11 and 12 of the Statement of Claim here:

1. In 1966, a new, substantial homestead was erected:

(a) at Rocklea Station, approximately 390 metres northwest of the Old Homestead (more precisely at the following location: Map Grid of Australia - Zone 50, 545747.3 metres east and 7469181.8 metres north); and
>
> (b) at a cost of $14,000 (in 1966 terms) ...

1. In the period between about 26 May 1967 - 4 August 1967:

(a) Rocklea Station was the subject of a pastoral lease (no 3114/671), granted to the following 3 lessees: > > > (i) Kenneth Ernest Troy (then about 37 years old);
> >
> > (ii) Frank Troy (then about 60 years old), being Kenneth Ernest Troy's father; and
> >
> > (iii) Allan Ross Troy (then about 39 years old), being Kenneth Ernest Troy's brother and Frank Troy's son,

(b) Frank Troy was domiciled at Lot 1633 Herdsman Parade, Wembley, Perth, Western Australia;

(c) Frank Troy was not domiciled at Rocklea Station;

(d) Kenneth Ernest Troy, his wife, Agnes Esther Troy, and their children resided and were domiciled at the New Homestead;

(e) the New Homestead was the main residence on Rocklea Station;

(f) no-one was domiciled at the Old Homestead; and

(g) the Old Homestead was:

(i) a modest, insubstantial structure;

(ii) made from wood (mulga trees) and tin;

(iii) unlined, with partitioned rooms and no electricity;

(iv) in disrepair, rotting and dilapidated; and

(v) without a bathroom or other facilities.

1. As to paragraph 11, it is common ground that a new, substantial homestead was erected in 1966 at significant cost.
2. Paragraph 12(a) is common ground.
3. Paragraphs 12(b), (c) and (f) are inconsistent with the evidence.
4. Paragraph 12(d) is common ground.
5. Whether the New Homestead was 'the main residence' as pleaded in paragraph 12(e) depends on what that phrase means. If it means the building in which most people lived, it is correct. If it means the building in which the person in charge lived, it is not.
6. In relation to paragraph 12(g)(i) of the Statement of Claim, the Old Homestead could be described as 'modest'. The remaining allegation in paragraph 12(g)(i), and the allegations in paragraph 12(g)(iii) and (v), are contradicted by the agreed facts[376] and the evidence of Stephen Troy.
7. I set out Steven Troy's evidence earlier. However, in short, he said that the Old Homestead had:
   1. a bathroom with running water attached to it;
   2. a substantial kitchen with a large woodfired stove and ovens, running water, a table and cupboards;
   3. three bedrooms, two of which had painted hessian wall linings; and
   4. electricity supplied by a generator that powered lights and the washing machine (and Stephen Troy also noted that the generator was next to the Old Homestead and, when the New Homestead was built, it was connected up to that same generator[377]).
8. There is also a photo of the Old Homestead taken from the ground. Although it is not known when the photo was taken, it demonstrates that the Old Homestead was not an insubstantial structure.[378]
9. In relation to paragraph 12(g)(ii) of the Statement of Claim, it was common ground that the Old Homestead was made from wood and tin.[379]
10. In relation to paragraph 12(g)(iv) of the Statement of Claim, it was common ground that the Old Homestead fell into disrepair. There is, however, no evidence as to exactly when that was.[380] At its highest for Aquila, Mr Cox's evidence is that some of the wood was rotting when he returned to Rocklea Station to do mustering. This would have been sometime after May 1967 and probably in or after 1968.[381] In any event, I infer that the Old Homestead was habitable when the Rocklea Temporary Reserve was created, as the whole Troy family lived in it until at least May 1967. Further, and in any event, the Old Homestead remained the building in which the person in charge lived and where the business of the station was conducted, at least until Frank Troy died in 1973.

1. In its written submissions, Aquila submits:[382]

1. On the construction for which [Aquila] contends, on or about 26 May 1967 and on 4 August 1967 the main residential building on Rocklea Station was the New Homestead because the New Homestead:

(a) was more readily observable than the Old Homestead, in that visitors entering Rocklea Station usually came to see it first and, from there, the Old Homestead was 'a few hundred metres away behind trees and bushes, and across a creek'. The view of the Old Homestead was, on the usual approach, 'obscured by bushes and trees';
>
> (b) was bigger, taller, longer and wider than the Old Homestead;
>
> (c) cost a significant sum to erect: $14,000 in 1966 terms, which equates to approximately $218,197.10 in 2023 terms. This sum is significant in the context of: > > > (i) Rocklea Station annual pastoral lease rent of $412.50; and
> >
> > (ii) improvements by the pastoralists to Rocklea Station in the successive two financial years totalling just $2,600 (in FY68) and $994 (in FY69); > >
>
> (d) was newer than the Old Homestead. In effect, when it was erected in 1966 the New Homestead replaced - as main residential building - an Old Homestead that was by then 'still standing' but, in part, 'rotting' and 'very old and run down.' The Old Homestead was allowed to become 'more and more run down over time' and, up until as recently as 2013 (at least), the New Homestead continued to be maintained; and
>
> (e) was built from more modern materials - fibreboard or compressed cement board sheeting walls and a corrugated iron roof - as compared with the 'bush built' or 'roughly constructed' Old Homestead, that was made from corrugated iron or tin and materials from the bush, mulga and blood wood.

1. The terms of the pastoralists' letter dated 21 August 1968 are significant. The letter is formal correspondence, sent in belated compliance with legal obligations that the pastoralists furnish to the Under Secretary for Lands particulars of improvements effected on land the subject of the Rocklea Pastoral Lease. In the letter, the pastoralists:

(a) described the New Homestead as 'New Homestead'. It is not described as an additional homestead; and
>
> (b) wrote that it was 'erected ... at a cost of $14000'.

1. These matters support conclusions that, from 1966, the New Homestead:

(a) was a homestead; and
>
> (b) replaced the Old Homestead as Rocklea Homestead.

2. I do not accept the submission in paragraph 83(a). Up until the Tom Price‑Nanutarra Road was constructed sometime in 1968, visitors accessed Rocklea Station from the south. The evidence is insufficient to permit a firm conclusion to be reached as to which homestead they would see first.[383]
3. I accept the submission in paragraph 83(b). However, this is comparing the New Homestead to the Old Homestead without including any of the buildings surrounding the Old Homestead. If those are included, the combination would occupy a much larger area than the New Homestead.[384]
4. Aquila submits that it is inappropriate to aggregate the Old Homestead and its surrounding buildings. Its argument appears to be as follows.[385]
   1. It is necessary to understand what constitutes the executive act.
   2. The act is to create a temporary reserve using a landmark.
   3. Ultimately, the area of the temporary reserve would need to be surveyed.
   4. If a complex of buildings was 'the landmark', it would be unclear which building within the complex was the appropriate reference point.
   5. Therefore, a complex of buildings should not be 'the landmark'.
5. I do not accept this argument.
6. The appropriate reference point would not be precisely defined even if a single building was the landmark. For example, it would not be known whether the reference point was the south‑east corner, the north‑west corner, or the centre of the building.
7. Further, BHP was not suggesting that the reference point was the complex of buildings comprising the Old Homestead and the surrounding buildings. BHP adduced evidence of the size of the complex to respond to Aquila's contentions as to comparative size. BHP's position remained that the Old Homestead itself was the reference point.
8. Aquila also appears to submit that aggregation is inappropriate because the word 'homestead' means a residential building and would not include garages, blacksmith shops, or sheds.[386] I accept that 'homestead' does not mean a garage, shop or shed on its own. However, in the context of a pastoral station, the building in which the person in charge lives and business is done is likely to be surrounded by other buildings and structures used for the business, as was the case here. In my view, if size is relevant, the other buildings should be included in the assessment.
9. That said, I would not give much weight to size. I consider that the use of the building is much more significant.
10. I accept the submission in paragraph 83(c).
11. As to paragraph 83(d), I accept the submission that the New Homestead was newer than the Old Homestead. I accept that the New Homestead became the building in which more people lived. I accept that the Old Homestead became run down over time, but have inferred that the Old Homestead was habitable at the time the Rocklea Temporary Reserve was created. Further, the Old Homestead remained the building in which the person in charge lived and where the business of the station was conducted, at least until Frank Troy died in 1973.
12. I accept the submission in paragraph 83(e).
13. Even if I was to accept each of the factors relied upon by Aquila, I do not accept that this would determine which homestead was intended to be the reference point. As BHP points out, if these factors were decisive, a large new workers' accommodation building located near the entrance to a pastoral station would be 'the homestead'.[387]
14. As to the submission in paragraph 84(a), I have already explained why I do not accept that the pastoralist's labelling of the two buildings is probative.[388]
15. In its written submissions in reply, Aquila submits:[389]
    1. The places where Rocklea Station pastoralists slept and lived and the use to which various buildings on Rocklea Station were put from time to time was not readily observable by a third‑party visitor to Rocklea Station. That reveals that evidence of sleeping and living arrangements, and use and occupation more broadly, would be a far from satisfactory basis on which to construe the boundaries of the Temporary Reserve.
16. I do not accept that the places where the pastoralists slept and lived and the use to which various buildings on Rocklea Station were put from time to time would not have been readily observable by a third‑party visitor to Rocklea Station. Any visitor arriving on the station and asking where the boss lived would be directed to the Old Homestead. Any visitor arriving on the station and looking for the likely place of business would head for the complex of buildings, within which was the Old Homestead.
17. Aquila further submits:[390]
    1. If Mr Frank Troy's bedroom in 1967 is relevant (which is not accepted), then there is evidence to the effect that, at the relevant time, his principal or a significant place of residence was in Perth, with his wife. There is no evidence that Mr Frank Troy's son, Mr Kenneth Troy, and his wife and young children, lived anywhere other than Rocklea Station and they moved into the New Homestead after it was erected.
18. As for the assertion that there is 'evidence to the effect that, at the relevant time, [Frank Troy's] principal or a significant place of residence was in Perth, with his wife', Aquila referred to a mortgage document and a certificate of title in which Frank Troy's address was listed as being in Perth.[391] However, the totality of evidence overwhelmingly proved that this was not his principal or significant place of residence.
19. First, both Stephen Troy and Mr Cox said that Frank Troy lived in the Old Homestead and rarely travelled away from Rocklea Station.[392] Mr Herbert's evidence did not touch on where Frank Troy lived.[393]
20. Second, there are 28 documents on the 'Lands and Surveys File 1' in which Frank Troy recorded his address. All but one stated his address as Rocklea Station.[394] Only one, a letter to the Under Secretary in 1971, records his address as 10 Herdsman Parade, Wembley (where his wife was living).[395] Having regard to the evidence of Stephen Troy and Mr Cox, I accept BHP's submission that it is likely he wrote that address because he was visiting Perth when he wrote the letter.[396]

Aquila's submissions as to what 'Rocklea Homestead' meant

1. Aquila submits:[397]
   1. Properly construed, 'Rocklea Homestead' means the most prominent, newest or most readily observable residential building on Rocklea Station at the time the Application was made on or about 26 May 1967 or when the Temporary Reserve was constituted on 4 August 1967.
   2. Where the Court does not understand the language of a written instrument it may look at dictionaries to elucidate the meaning of the words, especially historical meanings. In using the words 'from Rocklea Homestead', Area 6 proceeds on the basis that there is only one Rocklea Homestead at the relevant time. So, in the case of two or more residential buildings, it is the newer, more prominent residential building to which reference is to be taken to be made.
2. When asked to explain why the reference to 'Rocklea Homestead' should be taken to have meant 'the newer, more prominent residential building', Aquila submitted that this was because it was a landmark.[398]
3. Aquila then[399] referred to House of Peace,[400] a case which had grappled with what was meant by 'church' in a development consent.
4. In House of Peace, development consent was given in 1954 for the 'erection of brick church and office' on land in Sefton, New South Wales. The building that was then erected was used as a Presbyterian church for about 40 years. After June 1995, the land was used as a Muslim mosque. The issue was whether fresh consent was required to use the land in that way. Mason P, with whom Stein JA and Giles JA agreed, said that the consent to use the land as a 'church' was a consent to use the land as a place of public worship. The court held that, therefore, fresh consent was not required.
5. This was, of course, a very different scenario to the situation here. Here, the issue is not the scope of a historical permission. It is what was meant by the reference to 'Rocklea Homestead', when there were two homesteads on the station.
6. Aquila referred to parts of Mason P's decision in House of Peace,[401] in which his Honour said that a development consent for a 'church' gives permission to use the land as a church, and is not directed to who may use the land in that way.[402] I put to Aquila that House of Peace was a planning case, in which the use of the land is the critical focus. Aquila accepted this, but submitted:[403]

There's a functional question to be addressed which is are you going to use as a landmark something that is less prominent and more likely to fall into disrepair. That's the functional point that, I think, comes from President Mason's analysis with respect to a planning consent, and on this question, your Honour is going to hear ... about what was observable by a person entering Rocklea Station.

1. I do not accept that that 'functional point' comes from Mason P's analysis. In any event, I do not accept that the reference to 'Rocklea Homestead' should be taken to have meant 'the newer, more prominent residential building' because it was intended to be used as a landmark.
2. First, it was obviously important that the areas of temporary reserves be defined by reference to objectively ascertainable points. However, it was not necessary that those points be the most observable from the land. The point could be, for example, a well on the land. As another example, the point could be identified by its latitude and longitude.[404]
3. Second, even if the reference to 'Rocklea Homestead' should be taken to have a particular meaning because it was intended to be used as a landmark, there is no reason why it should be taken to have meant 'the newer, more prominent residential building'. Indeed, I consider that the long‑established building in which the person in charge lived and conducted the business of the station, and which was surrounded by other buildings associated with the business of the station, would have been more of a landmark at the time of the creation of the Rocklea Temporary Reserve. In addition, as I discussed earlier,[405] there is no evidence as to exactly when the Old Homestead fell into disrepair. At its highest for Aquila, there is evidence that, sometime after May 1967 (and probably in or after 1968), some of the wood was seen to be rotting. However, the Old Homestead was habitable at the time of the creation of the Rocklea Temporary Reserve, because the whole Troy family lived in it until at least May 1967. Further, and in any event, the Old Homestead remained the building in which the person in charge lived and where the business of the station was conducted, at least until Frank Troy died in 1973.

1. BHP submits that, if the analysis is limited to Identification Evidence (which it disputes), the answer is still the Old Homestead. In support of this contention, it relies on four points:[406]
   1. Firstly, the Old Homestead was historically the original and only building on Rocklea station that could be described as 'Rocklea Homestead', up until the latter half of 1966. Prior to the New Homestead being constructed, the former pastoralists (the Smith brothers) and the then current pastoralists (the Troy family) lived in the Old Homestead. Thus Rocklea homestead depicted on public plans printed before 1966 was the Old Homestead, and those public plans continued to be used in August 1967 and beyond.
   2. Secondly, as at August 1967 the Old Homestead continued to be occupied by Frank Troy, who was one of the lessees of the pastoral lease and the father of the other lessees, and who was clearly in charge of running the pastoral operations.
   3. Thirdly, the Old Homestead had historically been, and as at August 1967, continued to be, used as the Rocklea station office and store. It was the place where visitors to the station conducted business, even after the New Homestead was constructed.
   4. Fourthly, the Old Homestead building was surrounded in its immediate vicinity by various other buildings and structures that, in 1967, were being used in conjunction with the Old Homestead itself. (citations omitted)
2. All of these assertions are factually accurate.
3. Further, BHP notes that the evidence showed that Kenneth Troy and his family moved into the New Homestead somewhere between May and July 1967. BHP submits that the logic of Aquila's case can be tested by asking what Aquila would have submitted if the family had moved in after the Minister made his decision (4 August 1967). BHP puts it this way: if Aquila is correct about the significance of the New Homestead, at what point would the New Homestead become the 'Rocklea Homestead'? When it was partially constructed? When it was occupied? BHP says this demonstrates that Aquila's criteria are not valid.[407]
4. In response, Aquila submits that the question of at what point does the New Homestead become the 'Rocklea Homestead' 'doesn't assist because exactly the opposite point can be made. When does the old homestead cease being the Rocklea Homestead?'[408] This response overlooks the differences in the parties' approaches. BHP would answer Aquila's question by saying that the Old Homestead ceased being the 'Rocklea Homestead' when it was no longer the place in which the person in charge lived and conducted the business of the station.
5. There is force in BHP's submissions.

1. It was common ground that dictionary definitions may assist in identifying the range of possible meanings a word may bear in various contexts, but will not assist in the determination of the meaning a word bears in a particular context.[409]
2. BHP submits that:[410]

As a matter of common language, it is the function of a building, not its recency, size, or location, that is relevant to its characterisation as being the homestead (or not).

1. BHP submits that some apt dictionary definitions include:[411]

(a) A house with its dependent buildings and offices; esp. a farmstead. (Oxford English Dictionary (1st ed, 1933) (being the edition current as at 1967).

(b) In Australia and New Zealand: the owner's residence on a sheep or cattle station. (Shorter Oxford English Dictionary (6th Ed; 2007)).

(c) A house, usually the principal residence on a rural property. (Australian National Dictionary (2nd Ed, 2016 (1st Ed 1988)). (footnote omitted)

1. It was appropriate for BHP to put forward relevant dictionary definitions. However, I do not consider the dictionary definitions to be of any value to the task facing me.

1. Both sides assert that, in determining which of the two homesteads was intended to be the reference point, it is important to keep in mind the context - that it was for the purposes of locating a mining tenement under the Repealed Act.[412] In addition to that context, there is also the context that the reference point was, in its terms, intended to refer to a homestead on a pastoral station.
2. In the context of a pastoral station, I consider that the homestead is the building in which the person in charge lives. In my view, the function of the building is of particular significance in this context. A pastoral station is a place on which a commercial enterprise is undertaken. Given the nature of that enterprise, it is to be expected that the person in charge would reside on the pastoral station. In my view, which building they lived in is the critical factor in determining which is the homestead. That is, I consider that what makes a building on a pastoral station a homestead turns upon the building's use. As BHP points out, if physical factors were decisive, a large new workers' accommodation building located near the entrance to the pastoral station would be the 'Rocklea Homestead'.[413]
3. If, hypothetically, the person in charge lived in two buildings in equal measure, other factors may need to be considered. It may be concluded that a larger, more modern building was 'the' homestead. Or it may be concluded that there were two homesteads on the station, neither of which could be said to be 'the' homestead. But that is not this case.
4. In this case, the evidence is that Frank Troy, the person in charge, lived in the Old Homestead at the time of the Minister's decision. Therefore, I am satisfied that the Old Homestead was objectively intended to be the reference point for the Rocklea Temporary Reserve.
5. If I am wrong to have found that the residence of the person in charge was determinative, I would nevertheless reach the same conclusion.
6. If the test is what a visitor to Rocklea Station would have thought was the 'Rocklea Homestead', the answer would again be the Old Homestead - the place where the person in charge lived, where the business of the station was conducted, where the store was, and around which the buildings and infrastructures required to run the business were located.
7. If the search is for a physical landmark, I do not accept this would be a newer, more prominent building. As discussed above, it is more likely to be a long‑established structure. At the time of the Minister's decision in 1967, this was the Old Homestead.
8. I have addressed Aquila's submissions as to various factors, noting those that I accept. These include the considerable sum spent on building the New Homestead, its larger size (compared to the Old Homestead on its own) and more modern construction, that more people (including one of the lessees) lived in it than in the Old Homestead, and the rotting of wood in the Old Homestead and its decline over time.
9. However, I consider the following facts to be of greater significance.
   1. The person in charge lived in the Old Homestead.
   2. The business of the station was conducted out of the Old Homestead.
   3. The other buildings and structures used in the business were located near to the Old Homestead.
   4. The Old Homestead was a well‑established building, having been on Rocklea Station for, it seems, more than 20 years prior to 1967. Up until 1967, it was the only homestead on Rocklea Station.
   5. The New Homestead was simply the residence of one of the other lessees (who was not the person in charge) and his family.
10. Accordingly, even if the task is one of weighing up relevant factors, I would have reached the same conclusion - that the Old Homestead was objectively intended to be the reference point for the Rocklea Temporary Reserve.

1. This conclusion makes it unnecessary to consider BHP's contention that there is a 'presumption' that the reference to 'Rocklea Homestead' in the description of Area (6) was a reference to the Old Homestead. Nevertheless, I will briefly explain why I do not accept there is any such presumption.
2. In support of its contention, BHP relies on cases in which long‑standing occupation or old fences had been said to give rise to a presumption as to the location of a boundary.[414]
3. BHP submitted:[415]

[I]f the Court is to make a factual finding about the location of the Rocklea Homestead in 1967, it can and ought to take into account what [BHP and its predecessors], as holders of the right of occupancy of [the Rocklea Temporary Reserve], and the Minister, have long understood to be the boundary of [the Rocklea Temporary Reserve] and the land that BHP and its predecessors have occupied accordingly. If, as [BHP] contend, that gives rise to a presumption that the boundary is determined by reference to the Old Homestead, then the Court ought not disturb that presumption absent the most positive and direct overwhelming evidence that, in 1967, the reference to the Rocklea Homestead in the Application as incorporated into the Minister's decision would have been regarded by the reasonably informed person familiar with the Repealed Act to be a reference to the New Homestead.

1. In oral submissions, BHP confirmed that this was a contention as to an evidentiary presumption on a question of fact, rather than any legal presumption or principle of construction.[416]
2. During the hearing, I sought to understand the basis upon which BHP contended that there was a logical reason why an inference would be drawn in the absence of evidence to the contrary. BHP submitted that it would depend on what was sought to be proved. BHP accepted that a presumption could not operate in relation to which homestead was newer, or which homestead was the domicile of Frank Troy. It submitted, however, that it could operate if the question of fact was 'what was generally regarded in society as being Rocklea Homestead on 4 August 1967'.[417]
3. I do not accept there is any logical basis upon which evidence of BHP's occupation over an area defined by reference to the Old Homestead, but 10 miles away from it, could give rise to an evidentiary presumption that it was the Old Homestead that 'was generally regarded in society as being Rocklea Homestead on 4 August 1967'.
4. In any event, I am not satisfied that the evidence would give rise to such a presumption.
5. Much of the evidence relied upon was said by BHP to show its understanding of the boundary, or the understanding of its predecessors or the Minister. In my view, the understanding of BHP and its predecessors is entirely irrelevant. The subjective understanding of the Minister is entirely irrelevant. Nor is there any logical basis upon which evidence of BHP's understanding of the boundary of the Rocklea Temporary Reserve, or the understanding of its predecessors or the Minister, could give rise to an evidentiary presumption that it was the Old Homestead that 'was generally regarded in society as being Rocklea Homestead on 4 August 1967'.
6. As to actual occupation, there was little evidence that was both consistent with the Old Homestead being the reference point and inconsistent with the New Homestead being the reference point.[418]

1. For these reasons, I find that the area of the Rocklea Temporary Reserve was defined by reference to the Old Homestead. This is sufficient to dispose of Aquila's claim. However, in case I am wrong about this, I will deal with the other two key issues, but in less detail than would otherwise be required.

1. BHP asserts that Aquila's claims for declarations were barred by the Limitation Act 2005 (WA).[419] Aquila denies this.
2. The parties' submissions evolved somewhat over time. To the extent possible, I will deal only with their final positions.
3. Aquila seeks[420] declarations that parts of the boundaries of Aquila's Mining Lease and Exploration Licence are identified by reference to the location of the New Homestead.
4. Both sides submitted[421] that Tottle J had set out the relevant principles in Wyloo Metals Pty Ltd v Quarry Park Pty Ltd.[422]
5. As pointed out by Tottle J,[423] the source of the power to make a declaration is s 25(6) of the Supreme Court Act 1935 (WA). The power is discretionary. It is not fettered by rules. However, it must be directed to the determination of legal controversies. The applicant must have 'a real interest'. Relief will not be granted if the question is purely hypothetical, or if relief is claimed in circumstances that have not occurred and might never happen, or if the declaration will not have consequences for the parties. Generally, there must be a proper contradictor.[424]
6. As said by Tottle J in Wyloo:[425]

[A] cause of action for a mere declaration arises once a justiciable controversy comes into existence and it accrues to the person who has a real interest in raising it.

1. It was common ground that s 13(1) of the Limitation Act required any claim for a declaration to be brought within six years.[426] The parties disagreed as to when time started to run.
2. Aquila's indorsed Writ was filed on 30 April 2021.
3. BHP submits that time started to run no later than 19 December 2013, when Aquila (already holding an exploration licence) applied for what became Aquila's Mining Lease.[427] If this is correct, Aquila's claims are statute‑barred.
4. Aquila's submissions as to when time started to run varied during the proceedings. Its final position was that time did not start to run until 10 October 2018, when the Survey was completed.[428] If this is correct, Aquila's claims are not statute‑barred.
5. Before dealing with the parties' submissions, I will set out the relevant facts.

1. As noted earlier, Mr Winter gave evidence of, among other things, investigations that he carried out for Aquila in relation to the way in which the boundary of the Rocklea Temporary Reserve had been determined.
2. His witness statement began by referring to a boundary anomaly discovered in 2006.[429] It was common ground that this was irrelevant to the issue in these proceedings.[430] However, the anomaly led to Mr Winter obtaining copies of the Attachment to the Application Letter and the Department's handwritten register for the Rocklea Temporary Reserve.[431]
3. Mr Winter said:
   1. Later, Mr Piers Goodman, the then Manager Environment and Community from [API Management Pty Ltd (API)[432]] environment team loaned a book to me called 'Along the Ashburton' by Rhonda McDonald.[433] I flicked through the book and read a passage that included the following words in relation to Rocklea station and its pastoralists, the Troy family:

'... In 1966, the Troy family built a new homestead, which was not far from the original one ...'

1. It was at that point that I realised that there may be two possible locations for the common boundary between [Aquila's Exploration Licence] and [BHP's Exploration Licence] (depending on whether the new homestead or old homestead is used as the reference).
2. I will refer to this book as the 'Ashburton Book'.
3. Mr Winter does not specify the date on which he was given the Ashburton Book and realised that there may be two possible locations depending on which homestead was used as the reference, beyond saying it was 'later' than the letter he sent on 15 August 2006. It was also presumably before the first date he records after this paragraph - of 23 November 2013. Aquila accepts that Mr Winter read the passage in the Ashburton Book '[s]ometime in the rather long period from 15 August 2006 to 23 November 2013'.[434]
4. After the reference to the Ashburton Book, paragraphs 26 to 50 of Mr Winter's statement cover events from 23 November 2013. To appreciate what Mr Winter does not say, it is necessary to set out much of this in full.
5. Mr Winter began by referring to events between 23 November 2013 and 3 December 2013.
   1. On 23 November 2013, I attended the Australian Premium Iron Joint Venture Management Committee meeting held at API's offices in Como, Western Australia.
   2. At that meeting, [Aquila] decided to apply for a mining lease in respect of the Hardey deposits (i.e. applying to convert [Aquila's Exploration Licence], or part of it, into a mining lease).
   3. By this time, I was aware there were two possible locations for the common boundary between [Aquila's Exploration Licence] and [BHP's Exploration Licence] (or mining lease conversions from [BHP's Exploration Licence]), depending on whether the new homestead or old homestead is used as the reference. At this time, I considered it necessary to obtain clarity on the common boundary between [Aquila's Exploration Licence] and [BHP's Exploration Licence] to inform the area that should be marked out and applied for as the mining lease.
   4. In or around late 2013, [Aquila] engaged Mr Phil Richards, a registered surveyor of MHR Surveyors, to assist in the marking out of [Aquila's] application for a mining lease. I asked Mr Richards to investigate these matters.
   5. On 30 November 2013 to 3 December 2013, I was copied into an email exchange between Mr Richards and Mr John Stevens, Senior Geospatial Officer at the Department.
6. In that email, Mr Stevens wrote:[435]

[BHP's Exploration Licence] was calculated from the old Rocklea Homestead, and the values adopted were 546101.6E & 7469012N, but we can find no reference to any field book pick‑up.

It was decided to use the old original homestead because [BHP's Exploration Licence] was lodged on 29/04/1982, and was a transitional conversion of [the Rocklea Temporary Reserve] (identical by description, lodged in 1967) and the new Rocklea Homestead (now labelled PR) did not exist in 1967.

NOTE: Old Rocklea Homestead is located at the south eastern end of the six building symbols currently depicted in TENGRAPH.

The remains of the original homestead can be seen via the Landgate Map Viewer showing Rocklea imagery dated as 2004.

A later position for Rocklea Homestead (apparently provided by DMP to Landgate in August 2006) is now shown in TENGRAPH as position reliable (PR).

We can find no reference to the field book number for the coordinate pick‑up of old Rocklea Homestead, or the new Rocklea Homestead (PR).

The calculated position of [BHP's Exploration Licence] and the resultant Mining Leases has been accepted since July 2005, and we are satisfied with the reasoning behind their spatial position.

However, we can see why you have raised the question, as Rocklea homestead (PR) would result in different coordinates, but DMP considers that the calculated coordinates are absolute for the reasons stated.

I trust that this explanation will satisfy your enquiry.

1. Aquila submits that, by being copied into this email, Mr Winter was being told by the Department that the calculated coordinates were absolute.[436] I accept this. However, he was also being told that the reason was because the Department apparently believed, in 2013, that the New Homestead did not exist in 1967. At the time of receiving this email, Mr Winter had read in the Ashburton Book that the New Homestead had been built in 1966. At the time of receiving this email, he was also aware there were two possible locations for the common boundary, depending on whether the New Homestead or Old Homestead was used as the reference.[437]
2. After referring to being copied into Mr Stevens' email, Mr Winter said:
   1. I then instructed Mr Richards to mark out so that [Aquila] could apply for a mining lease over an area that included the full western extent of the graticular blocks that were the subject of [Aquila's Exploration Licence] and overlapped with [BHP's Exploration Licence] (and applications for mining lease conversions from [BHP's Exploration Licence]) - with the aim of ensuring the full extent of ground available for mining was applied for and granted (subject to the boundary of [BHP's Exploration Licence] (and mining lease conversions from [BHP's Exploration Licence])) being determined. I was aware that any area ultimately found to be covered by [the Rocklea Temporary Reserve] (and mining tenements deriving from it) was excised from the grant of [Aquila's] mining lease.
3. That is, Mr Winter instructed the surveyor to mark out the area over which Aquila was going to seek a mining lease so that it would cover land that would fall outside of the area of the Rocklea Temporary Reserve if it was 'ultimately' found to be defined by reference to the New Homestead.
4. Mr Winter said that, on 19 December 2013, Aquila applied for what became Aquila's Mining Lease as a partial conversion under s 67 of the Mining Act of Aquila's Exploration Licence.[438]
5. Mr Winter records that, on 8 January 2014, Mr Richards told Mr Winter that he had not been able to find the datum peg used to mark out the Rocklea Temporary Reserve. Mr Richards suggested a more thorough foot search could be conducted when the weather was cooler.[439]
6. Mr Winter's witness statement then said, under the heading 'Other Investigation into Rocklea Homestead':
   1. Since around December 2013, I have undertaken and have instructed various employees of API to undertake other investigations in relation to Rocklea homestead.
7. The very next paragraph of Mr Winter's statement dealt with searches in July 2018 for photographs of the area of Rocklea Station.[440]
8. Aquila referred to two documents not mentioned by Mr Winter that showed an inquiry in December 2013 and another in January 2014.
9. First, on 18 December 2013, a Mr Sale[441] on behalf of Aquila, sent an email to a Ms Bear[442] at Rio Tinto. Mr Sale asked Ms Bear if she could tell him when the New Homestead was first established. Ms Bear replied, copying in Mr Winter, that she had checked with someone and, 'to the best of their knowledge', it was 1964.[443] I will refer to this as the 'Rio Tinto Email'.
10. Second, on 6 January 2014, Mr Winter asked the Shire of Leonora if approvals would have been needed to build a new homestead in the 1960s and, if so, whether the Shire might have access to plans. The Shire told him that a building permit would have been required, but that it would need more information before it would search through its records.[444] I was not taken to any evidence showing that Mr Winter had responded to this.
11. Therefore, I find that Aquila did very little investigating prior to 2018. Indeed, in the four year period from 7 January 2014[445] to approximately March 2018,[446] it did nothing. It appears that Aquila found it challenging to gather the necessary evidence and, in the words of Aquila's counsel, 'put it in the too hard basket'.[447]
12. From 31 March 2018 to 1 April 2018, Aquila conducted a ground search to see if the datum peg could be found. This was presumably the ground search that had been suggested by Mr Richards over four years earlier. Mr Winter says he caused employees of API to carry out that search, but does not say when he did this.[448] Given his failure to specify when this was, there is no reason to find it was much before the ground search began.
13. Aquila's Mining Lease was granted the following month. On 25 June 2018, Aquila was directed to survey Aquila's Mining Lease.[449]
14. In July 2018, Aquila looked for photographs and checked the State Records Office records.[450] Mr Winter obtained an aerial photograph taken on 9 January 1968 which showed both homesteads[451] and the Pastoralists' Letter was discovered in the State Records Office.
15. The Pastoralists' Letter was emailed to Mr Winter on 20 July 2018. The email attaching the letter said 'Getting close. See letter'.[452]
16. Mr Winter emailed Mr Richards the same day.[453] He said:

We have some high resolution aerial imagery that might be useful for me to take you over ...

Looks like we have uncovered a document that confirms the new Rocklea Homestead was constructed in early 1966 (yet to be clarified in terms of acceptability as evidence, but certainly supports the idea of a 1966 time frame, ie importantly per June 1967).

1. On 16 August 2018, Mr Winter emailed Mr Stevens in relation to the required survey. In effect, Mr Stevens told Mr Winter that, in the absence of further information to justify changing the 'pick‑up' of the Old Homestead, the Department considered the coordinates to be correct and absolute. Mr Winter sought to meet with Mr Stevens and a Mr Hubbard (also of the Department) to, in effect, change their minds.[454]
2. The meeting occurred the next day. Mr Winter says that, in the meeting, he was told that the Department's firm view was that the proper reference point was the Old Homestead. Mr Winter then showed the Pastoralists' Letter and the aerial map to Mr Stevens and Mr Hubbard. He says that he said to them that they would draw their own conclusions about what this might mean.[455]
3. Mr Winter said that, at the end of that meeting:[456]
   1. They asked if they could take a copy of the documents, to which I agreed. One of them then said: The starting point for the [Rocklea Temporary Reserve] would need to be taken from the new homestead and our instructions to the surveyor will likely be adjusted. They went on to say that BHP would not like it and they would not be surprised to see BHP object to the survey, which we should be aware of. I responded by saying: I understood that and we will just have deal with that when it occurs. Then the meeting effectively ended.
4. Although expressed in less forceful terms in his witness statement, it is plain from the contemporaneous documents and the events he describes that Mr Winter sought to persuade, and succeeded in persuading, the Department to change its mind about the proper reference point.
5. Mr Richards conducted the Survey on the basis that the proper reference point was the New Homestead. On 10 October 2018, Mr Richards reported to the Department on the Survey. A week later, on 17 October 2018, the boundaries were altered, in accordance with the Survey Report. On 21 November 2018, BHP lodged the Objection.

1. In its written opening submissions, Aquila submitted that time probably did not start to run until 21 November 2018, when Aquila was given notice of BHP's objection to the Survey.[457] It said that it was only at this point that:
   1. a legal controversy came into existence between the parties about whether the boundary of the Rocklea Temporary Reserve should be determined by reference to the Old Homestead or the New Homestead;
   2. Aquila had a real interest in the question about the true boundary of the area created by the Rocklea Temporary Reserve and the proper construction of the statutory instrument; and
   3. there was a proper contradictor in BHP.
2. In its oral opening submissions, Aquila first appeared to submit that a justiciable controversy arose in August 2018 when Mr Winter persuaded the Department that the Rocklea Temporary Reserve boundary should be defined by reference to the New Homestead.[458] Later, Aquila appeared to submit that a justiciable controversy arose when the Survey was completed or when Aquila's Mining Lease was granted.[459] In its oral closing submissions, Aquila returned to the submission it had made in its written opening submissions that a justiciable controversy arose only when BHP communicated its objection.[460]
3. In submissions filed (with leave) after I had reserved my decision, Aquila's position appeared to be that a justiciable controversy arose when the Survey was completed.[461]
4. If any of those submissions were correct, Aquila's claims would not be statute‑barred.

1. In its oral opening submissions, Aquila submitted that a justiciable issue 'cannot be taken to arise where one party is unable to assert a matter positively, let alone plead material facts'.[462] It submitted that, in 2013, it did not know if both homesteads had been there at the time the Rocklea Temporary Reserve was created. It submitted that it could only have said to BHP that it was not sure about the boundary, and it did not have enough evidence to commence an action.[463]
2. These submissions did not acknowledge the effect of Mr Winter's evidence. Mr Winter said that, by 23 November 2013, he 'was aware there were two possible locations for the common boundary ... depending on whether the new homestead or old homestead is used as the reference'.[464] Further, Mr Winter had, at that time, seen the Ashburton Book in which it was said that 'In 1966, the Troy family built a new homestead'. By the following month, he had been copied into the Rio Tinto Email.
3. In my view, by 23 November 2013, Aquila was able to positively assert that the New Homestead had been there at the time the Rocklea Temporary Reserve was created. Whether it felt it had enough evidence to prove it is not the point.

1. As noted above, Aquila's position in its oral closing submissions was that there was not a justiciable controversy until BHP communicated an objection on 21 November 2018. It said that this was because, prior to that time, Mr Winter only had a suspicion and there was no contradictor.[465]
2. I do not accept that, prior to the Objection, Mr Winter only had a suspicion. I also do not accept there was not a justiciable controversy because there was no contradictor.
3. As to the first, five years before the Objection was communicated, Mr Winter was aware there were two possible locations for the common boundary depending on which homestead was used as the reference. He had seen the Ashburton Book and he had been copied into the Rio Tinto Email. Further, and again five years before the Objection was communicated, Mr Winter instructed the surveyor to mark out the area over which Aquila was going to seek a mining lease so that it would cover land that would fall outside of the area of the Rocklea Temporary Reserve if it was 'ultimately' found to be defined by reference to the New Homestead. At its highest for Aquila, it may be inferred that Mr Winter felt that he did not have enough evidence to prove that the New Homestead had been there when the Rocklea Temporary Reserve was created.
4. As to the claim that there was not a justiciable controversy because there was no contradictor, I do not accept this for two reasons.
5. First, the question was where the actual boundary of two adjoining areas was. The answer would determine which party had the right to mine in the Disputed Area. BHP had an interest in where the boundary was, regardless of whether it ultimately opposed Aquila's position. The requirement that there be a contradictor does not require there to be a person opposing the relief sought.
6. Second, even if it was necessary for Aquila to know that BHP would likely object before a justiciable controversy could arise (which I do not accept), I would infer that it did know this. The mining industry is a lucrative one. I would infer that, if a party sought to establish a right to mine over land by showing that the land was wrongly thought to be land in which another party had a right to mine, it is highly likely that the other party would object. As a participant in the industry, I would infer Aquila knew this. As noted by Mr Winter himself, when the Department later decided that the proper reference point was the New Homestead, it certainly knew BHP might object.[466]

1. After I had reserved my decision, the Court of Appeal handed down a decision dismissing an appeal against Tottle J's decision in Wyloo.[467] Tottle J's findings in relation to the Limitation Act were not the subject of the appeal.[468] However, his findings as to whether discretionary relief should be refused were the subject of the appeal. Accordingly, I gave the parties the opportunity to make submissions on the Court of Appeal decision if they wished. The parties took up that opportunity.
2. Aquila submitted that remarks made by Mitchell JA in the appeal decision demonstrate that the justiciable controversy in this case did not arise until the Survey was completed. To understand this submission, it is necessary to understand the facts and findings in Wyloo.
3. On 22 January 2021, Wyloo commenced proceedings seeking a declaration that the grant of a mining lease to the first defendant (Quarry Park) on 12 April 2013 was invalid.
4. At first instance, Tottle J found that it was invalid because the essential pre‑conditions to the Acting Mining Registrar's power to recommend that the lease be granted, and the Minister's power to grant the lease, were not satisfied. However, his Honour found that Wyloo's claim for declaratory relief failed due to the operation of s 116(2) of the Mining Act.[469] His Honour went on to consider whether, if he was wrong about that, the claim was statute‑barred, as claimed by the Minister.
5. The Minister contended that Wyloo's cause of action had accrued when Quarry Park's lease had been granted. This was more than six years before Wyloo commenced proceedings.
6. Wyloo contended its cause of action had accrued only when it applied for a prospecting licence over the land that was the subject of Quarry Park's lease. This was a mere 11 days before commencing the proceedings.
7. His Honour accepted Wyloo's contention.[470] His Honour said that, when Wyloo made its application for a prospecting licence over the land,[471]

it raised a real question concerning the validity of the mining lease and it had a real interest in that question. The question had not been raised before. There was a proper contradictor and the question was not abstract or hypothetical and the determination of the question had real and foreseeable consequences. Wyloo raised a justiciable controversy and acquired a cause of action for declaratory relief. On that basis I conclude that Wyloo's action is not statute barred.

1. Although Tottle J's findings in relation to the Limitation Act were not the subject of the appeal, Mitchell JA (dissenting in the result on a different issue) made some remarks as to when the justiciable controversy arose. This was in the context of considering whether, if Wyloo had been otherwise successful, declaratory relief should have been refused on discretionary grounds. In that context, his Honour said:[472]

The justiciable controversy to be resolved by the primary proceedings was raised by the parties' assertion of inconsistent rights in relation to the mining on the Subject Land. Quarry Park and Cauldron Energy asserted rights said to arise from the grant or purported grant of the Mining Lease including the exclusive rights to mine the land conferred by s 85 of the 1978 Act. Wyloo Metals asserted the right to apply for a prospecting licence over the Subject Land and to have that application considered by a mining registrar or warden in accordance with the 1978 Act. I have concluded that, as a matter of law, Wyloo Metals has the right it asserted and Quarry Park and Cauldron Energy do not have the rights they asserted.

...

The fact that Wyloo Metals was seeking relief recognising the rights which it had also affects the way in which the issue of delay must be considered. While Wyloo Metals might have discovered the deficiency in the title to the Mining Lease at any time, the mere discovery of that fact would not have elevated its interest in the matter beyond that of any member of the public so as to give it standing to seek curial relief. The justiciable controversy in this case, and standing to challenge the validity of the Mining Lease, arose only when Wyloo Metals resolved to apply for a prospecting licence over the Subject Land, asserting rights which were inconsistent with those purportedly granted by the Mining Lease. There was no time limit imposed on Wyloo Metals making an application for a prospecting licence over that land. It could do so at any time at which the Subject Land had the status of Crown land open for mining. Wyloo Metals acted promptly to seek declaratory relief on 22 January 2021 shortly after it had applied for a prospecting licence on 11 January 2021. (citations omitted)

1. Aquila points out that, in Wyloo, the rights asserted by the two sides were irreconcilable.[473] Either one or the other had the rights over all of the land. In this case, the question is whether the Disputed Area is excised from Aquila's Mining Lease because it falls within BHP's Neighbouring Tenure (and it will fall within BHP's Neighbouring Tenure if the Rocklea Temporary Reserve is defined by reference to the Old Homestead). That is, the tenements held by the parties coexist. The only question is what areas are excised from Aquila's tenements due to the scope of BHP's tenements.
2. Aquila submits that it follows that the making of the application for Aquila's Mining Lease did not entail an 'assertion of inconsistent rights' in the sense described by Mitchell JA and so did not, without more, raise a justiciable controversy. It submits that '[t]he event that triggered an "assertion of inconsistent rights" was the Survey, because it was the final necessary step giving rise to the inconsistency at the heart of the justiciable controversy'.[474]
3. I do not accept that Mitchell JA was stating a test for when a justiciable controversy would arise in every case. Rather, his Honour was explaining why the justiciable controversy in that case did not arise until Wyloo resolved to apply for the licence. It was only at that point that Wyloo had an interest beyond that of any member of the public.[475]
4. In this case, Aquila had an interest beyond that of any member of the public when it applied for Aquila's Mining Lease in 2013 (if not before[476]).

Conclusion on whether Aquila's claims are statute‑barred

1. The Rocklea Temporary Reserve was defined by reference to the 'Rocklea Homestead'. At the time the Rocklea Temporary Reserve was created, there were two homesteads. The proper boundary between the area over which BHP has rights and the area over which Aquila has rights turns upon which homestead was the 'Rocklea Homestead'.
2. On an unknown date before 23 November 2013, Mr Winter read the passage in the Ashburton Book that said the New Homestead was built in 1966. By 23 November 2013, Mr Winter was aware there were two possible locations for the common boundary depending on whether the New Homestead or Old Homestead was used as the reference.
3. Mr Winter acted on that knowledge by instructing Mr Richards to mark out the land over which Aquila was going to seek a mining lease so as to include the Disputed Area. This was done so that, if the Rocklea Temporary Reserve was subsequently found to be defined by reference to the New Homestead, Aquila would have the right to mine in the Disputed Area (assuming the lease was granted). This would be so because, if the boundary was found to be defined by reference to the New Homestead, the Disputed Area would fall outside the area over which BHP had rights and would therefore not be excised from the area over which Aquila had rights.
4. I infer that Aquila knew that BHP would likely object if the boundaries were changed so as to give Aquila the right to mine in the Disputed Area. To be clear, I infer that Aquila knew this in 2013. As I have said,[477] I would infer that, if a party sought to establish a right to mine over land by showing that the land was wrongly thought to be land in which another party had a right to mine, it is highly likely that the other party would object. As a participant in the mining industry, I would infer Aquila knew this.[478]
5. I accept that, in 2013, Aquila did not have 'convincing information' that the New Homestead had been built at the time the Rocklea Temporary Reserve was created.[479] It needed more evidence to be sure it could prove that. However, the time at which its cause of action arose does not turn upon when it could prove its case. Rather, as said by Tottle J, 'a cause of action for a mere declaration arises once a justiciable controversy comes into existence and it accrues to the person who has a real interest in raising it'.[480]
6. Given that this issue only arises if I am wrong about Key Issue 1, it is unnecessary to determine when Aquila's cause of action arose. It is sufficient to say that, in my view, it had arisen by at least 19 December 2013.
   1. As at 19 December 2013, Aquila had Aquila's Exploration Licence, with the benefits associated with such a licence under the Mining Act.[481]
   2. As at 19 December 2013, Aquila knew there were two possible locations for the common boundary depending on which homestead was used as a reference. Mr Winter acted on that knowledge by instructing Mr Richards to mark out the land over which Aquila was going to seek a mining lease so as to include the Disputed Area.
   3. On 19 December 2013, Aquila applied for what became Aquila's Mining Lease.[482] The area sought to be the subject of the lease included the Disputed Area. This meant that, if the boundary of the Rocklea Temporary Reserve changed, Aquila would have the exclusive right to mine in the Disputed Area (assuming the lease was granted). Aquila knew it was likely that BHP would object to the boundary being changed.
7. The writ was not issued until 30 April 2021. This was over six years after the cause of action accrued.
8. Accordingly, I find that Aquila's claims are statute‑barred.

1. By a version of its reply filed on 12 July 2023,[483] Aquila pleaded that BHP's claims were barred by s 13(1) of the Limitation Act. During the hearing, Aquila filed (with leave) an amended reply which limited this plea.[484] Aquila pleaded that BHP's claims would be statute‑barred only if Aquila's cause of action in relation to Aquila's Exploration Licence was held to have accrued by 31 October 2007 (at which time both plaintiffs were the holders of that licence).
2. As I have not found this, there is no cause to consider this pleading. For completeness, I observe that I would have found that time began to run on BHP's claims when the boundary was changed on 17 October 2018, largely for the reasons given by BHP.[485]

1. I have found against Aquila on the first two issues. Therefore, the question of discretion could only arise if I am wrong in relation to both issues. For that reason, I will not address all of the parties' extensive submissions on this issue.
2. BHP submits that, if Aquila is otherwise entitled to declaratory relief, I should refuse to grant the relief sought because of Aquila's delay, its conduct, and the effect of declaratory relief on BHP and third parties.[486]
3. Aquila disagrees. It submits that its delay was not deliberate or tactical, that BHP has not been meaningfully affected by the delay, and that, if BHP wanted to contend that third parties were affected, BHP should have joined them to the proceedings. Aquila also amended its pleading so as to seek declarations only in relation to the boundaries between Aquila's Mining Lease and BHP's.
4. I would not have refused relief. In my view, there is insufficient reason to refuse relief. In particular, I am not satisfied that Aquila's delay caused BHP to suffer any meaningful prejudice or that changing the 'status quo' would cause significant harm to BHP or to third parties.

1. It was common ground[487] that the court's discretion to award declaratory relief is controlled by the interests of justice. When considering whether to grant a declaration, the court should take into account:[488]
   1. justice to the claimant;
   2. justice to the defendant;
   3. whether the declaration would serve a useful purpose; and
   4. whether there are any other special reasons why or why not the court should grant the declaration.
2. This is not an exhaustive list of factors. However, what this list reinforces is that it is not simply a matter of weighing up justice to the claimant against justice to the defendant. At times, Aquila appeared to be submitting that, if BHP had not suffered any prejudice due to the delay, it would not be open to me to refuse to make a declaration.[489] I do not accept this as a general principle, and particularly not in the mining context. Other interests, including the desirability of certainty for all participants in the mining industry and the broader public, are relevant. If the proper reference point was the New Homestead, it did not promote certainty for Aquila to put the proof in the 'too hard basket' and take no action for over four years after applying for a mining lease that would give it the right to mine the Disputed Area if the boundary was changed.

1. BHP asserts (citation omitted):[490]

Substantial delay in the bringing of action that challenges the security and certainty of title has the potential to undermine confidence in the regime under the Mining Act because of the fundamental importance of security and certainty of title to the attainment of the objects of that Act. For this reason, substantial delay in the bringing of such action ought not be condoned by the Court unless there are good reasons for the delay. In this case, there are none.

1. In support of this, BHP refers to Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd[491] and Wyloo.[492]
2. In Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd,[493] Pullin JA said:

Title to a mining tenement is not as secure as title to real property. This relative lack of security sits uneasily with the fact that very large amounts of capital may be expended on mining infrastructure. Miners desire as much security of title as possible if they are to make such investment. The State also has an interest in ensuring reasonable security of title so that investment will be encouraged. If this happens, the chance that greater royalties may be earned for the benefit of the State is enhanced.

1. In Wyloo, Tottle J said that, had Wyloo succeeded in establishing its claim, he would have refused relief in the exercise of his discretion. However, although the Court of Appeal dismissed the appeal against Tottle J's decision, it disagreed with this part of his Honour's reasons.[494]
2. Buss P and Livesey AJA noted, among other things, that the fact that the grant of the mining lease was invalid meant that the land it purported to cover was, as a matter of law, open for mining. That is, when Wyloo applied for a licence over that land, the land was able to be made the subject of a licence because the mining lease was invalid.[495]
3. Like Buss P and Livesey AJA, Mitchell JA (dissenting in the result on a different issue) also noted that the fact that the grant of the mining lease was invalid meant that the land it covered was, as a matter of law, open for mining. His Honour said that this was relevant to the exercise of discretion in two ways.[496]
4. First, in determining whether discretionary relief should be denied, it was necessary to take into account the impact of refusing relief on the rights which Wyloo had established. Wyloo had the right to apply for a prospecting licence and had the right to have that application properly considered in accordance with the relevant legislation. This, said Mitchell JA, must be taken into account in deciding to refuse relief which would recognise those rights.[497]
5. Second, his Honour said it was relevant to the way in which the issue of delay must be considered. His Honour noted that (unlike this case), Wyloo acted promptly to seek declaratory relief on 22 January 2021 shortly after it had applied for a prospecting licence on 11 January 2021.[498]
6. Adapting that approach to the facts in this case, if the Rocklea Temporary Reserve was defined by reference to the New Homestead, BHP did not have, and never had, any rights in the Disputed Area. When Aquila sought and obtained Aquila's Exploration Licence, it acquired exploration rights in the Disputed Area, because that area was not excluded from the scope of its licence. When Aquila sought what would become Aquila's Mining Lease, it was exercising its right to seek a lease over land that was able to be made the subject of the lease, including the Disputed Area. This weighs against refusing relief.
7. On the other hand, unlike Wyloo, Aquila did not act promptly. In my view, this weighs in favour of refusing relief. How much it weighs depends on the consequences of Aquila's delay.
8. Aquila asserted that another factor referred to by Mitchell JA was applicable in this case. Mitchell JA had noted that the management of Crown land (and the mines and minerals on it) is vested in the legislature and that no effective grant of rights to exploit the resources of the State may be made except in the manner Parliament has authorised. His Honour said that Quarry Park's mining lease had been purportedly granted in a manner which Parliament did not authorise.[499] Aquila submitted that refusing declaratory relief, where Aquila has otherwise demonstrated an entitlement, would be to confer on BHP title to land otherwise than 'in the manner Parliament has authorised'.[500] I do not accept this. The Rocklea Temporary Reserve and BHP's subsequent tenements were validly granted and have priority. The only issue is whether the boundaries were incorrectly understood and should now be corrected.

1. The parties' submissions in relation to the delay and Aquila's conduct are interrelated. I will therefore deal with these two issues together.

1. In seeking to justify the delay, Aquila says it did not have a 'real interest' until Aquila's Mining Lease was granted in 2018.[501]
2. Aquila submitted:[502]
   1. It was not until the Survey that the boundaries of [Aquila's] Mining Lease could be stated with certainty. In that regard, in CG (deceased) on behalf of Badimia People v State of Western Australia, Barker J held that:

'... Due to the operation of ss 80(1) and 105B Mining Act 1978, the valid grant of a mining tenement was subject to a condition that a survey be carried out. In the absence of evidence that a survey was carried out, it is not possible to state with certainty the boundaries of a lease or that the tenement was validly created.'

1. Barker J made these remarks immediately after saying that he considered that the approach of Marshall J in Graham on behalf of Ngadju People v State of Western Australia[503] was 'correct and should be applied here'.[504] However, Graham was subsequently overturned (at least in part) on appeal.[505] Aquila says that Graham was dealing with the Repealed Act and was focussed on validity, not certainty. It submits that Barker J's remarks remain valid in relation to the question of certainty.
2. To the extent that Barker J was saying that the precise boundary of a mining tenement may not be able to be stated with certainty until a survey has been conducted, this is plainly right.[506] Nor would BHP dispute it. However, a survey does not determine the boundary of a mining tenement. The boundary is determined by the terms of the grant. A survey merely administratively delineates the boundary of the grant.[507]
3. Section 105B of the Mining Act, relied upon by both Barker J and Aquila,[508] was discussed by the Court of Appeal in BHP Minerals Pty Ltd v Aquila Steel Pty Ltd.[509] This was the decision which dismissed BHP's appeal against the dismissal of its application for a stay. In summary terms, the Court said the following:[510]
   1. Although a survey is required for land the subject of a mining lease, it is not required prior to the grant of the lease.[511] The lease itself operates from the earlier date of notification of the grant.[512]
   2. The boundary delineated by the survey may reveal whether and to what extent any of the land applied for in the application was unavailable. The effect of s 105B is that there is deemed to be a condition in the grant that any land not available for grant is excluded from the grant.
   3. There is nothing in s 105B that signifies that a survey controls or determines the true scope and legal effect of a grant of a mining lease.
   4. The surveying of mining tenements is an administrative function.
   5. The Mining Act does not determine the rights of tenement holders by reference to a surveyed plan.
4. As BHP points out, in the context of this case, a survey could delineate the boundary of the Rocklea Temporary Reserve by reference to the Old Homestead or the New Homestead, but it could not determine which homestead is the correct reference point.[513]
5. I do not accept that Aquila did not have an interest until Aquila's Mining Lease was granted. As noted earlier,[514] in 2013, Aquila (already holding an exploration licence) applied for the mining lease knowing that there were two possible locations for the common boundary depending on which homestead was used as a reference. It applied for an area that would give it the right to mine in the Disputed Area if the Rocklea Temporary Reserve was subsequently found to be defined by reference to the New Homestead. In the context of the Limitation Act issue, I found that Aquila's cause of action accrued at that time. Even if I am wrong about that, it plainly had an interest and knew there was an issue in 2013.

1. The delay was deliberate in the sense that it was not accidental. I accept that the delay was not tactical. However, there is no good excuse for the delay. As I have said, it appears Aquila found it challenging to gather the necessary evidence and, in the words of Aquila's counsel, 'put it in the too hard basket'.[515] Further, Aquila's position was preserved. It had Aquila's Exploration Licence and, from December 2013, it had a pending application for a mining lease which would, if granted, cover the Disputed Area.[516] Any delay would not prejudice its position.
2. Further, the delay was long. From January 2014 to March 2018, Aquila did nothing. A delay of over four years is significant in the context of mining rights.
3. Another long period, of more than three years, elapsed before Aquila commenced these proceedings.
4. In addition, Aquila secured the change to the boundary of the Rocklea Temporary Reserve by persuading the Department that it ought to have been defined by reference to the New Homestead. By taking this approach, BHP had no opportunity to be heard prior to the change to the boundary. BHP was not put on notice of the issue until 24 October 2018, when it received a copy of the Survey.
5. I accept BHP's submission that there were no good reasons for the delay and the delay was significant.

1. BHP further complains about Aquila's conduct of the proceedings in the Warden's Court. The history of those proceedings was set out earlier.[517] In summary:
   1. BHP filed the Objection on 21 November 2018;
   2. BHP filed the Plaint on 31 July 2019. Aquila alleged that the Plaint was an abuse of process by reason of the Objection;
   3. BHP sought to have the Plaint heard first. Aquila opposed this;
   4. the Warden refused to hear the Plaint first, and instead heard the Objection;
   5. the Warden upheld the Objection; and
   6. Aquila lodged proceedings in this Court (and, shortly afterwards, BHP withdrew the Plaint with Aquila's consent).
2. BHP characterised its filing of the Objection as, in effect, a reaction. It said that, after it had time to reflect, it realised it needed curial determination. It therefore filed the Plaint.[518]
3. BHP alleges that Aquila's forensic choices to oppose the Plaint process had two consequences. First, BHP's costs in the Objection proceedings were effectively thrown away when Aquila commenced the declaration proceedings in this Court. Second, it further delayed the eventual commencement of the Supreme Court proceedings.[519]
4. I accept that BHP's costs in the Objection proceedings were effectively wasted. I do not accept that Aquila was the primary cause of that for three reasons.
5. First, BHP elected to file the Objection.
6. Second, and related to the first reason, the Warden refused to hear the Plaint before the Objection because, among other reasons, his Honour considered that the objection procedure was the appropriate procedure to resolve the issue.[520]
7. Third, I accept that BHP's legal fees in the Objection proceedings could have been avoided if Aquila had sought a declaration at an earlier time.[521] However, once BHP became aware of the Survey, it could have itself sought a declaration in this Court.[522] Instead, it lodged the Objection, and later the Plaint, in the Warden's Court.
8. For similar reasons, I also do not accept BHP's claim that Aquila's opposition to the Plaint process further delayed the eventual commencement of the Supreme Court proceedings. The primary cause of the delay in obtaining a curial determination was BHP's election to file the Objection and the Warden's view that the objection procedure was the appropriate procedure to resolve the issue. Further, once BHP became aware of the Survey, it could have itself sought a declaration in this Court.

1. If the boundary of the Rocklea Temporary Reserve is defined by reference to the New Homestead instead of the Old Homestead, this will impact BHP in several ways.
2. First, BHP will need to make new applications for mining leases to convert BHP's Exploration Licence to mining leases.[523]
3. Second, two of its existing mining leases, 47/685‑I and 47/689‑I, will be smaller. The latter will be significantly smaller.[524] I will refer to these two mining leases as 'BHP's Affected Mining Leases'.
4. Third, the areas of some of BHP's mining lease applications will be outside the area of BHP's Exploration Licence.[525] While they would still be valid applications, they would be processed without the benefit of s 75(7) of the Mining Act.[526]
5. Fourth, BHP will have spent money in respect of areas that it does not, in fact, have rights over. Under the legislative provisions, rent and minimum exploration expenditure are linked to the area of the mining tenement.[527] As noted in the second point, mining lease 47/689‑I will be significantly smaller if the boundary of the Rocklea Temporary Reserve is defined by reference to the New Homestead.
6. BHP did not adduce any evidence which would allow me to evaluate the significance of the first three impacts. It adduced some evidence of the fourth.
7. If the boundary of the Rocklea Temporary Reserve is defined by reference to the New Homestead, BHP will have paid rent for land over which it has no rights. BHP did not state how much rent could be said to be attributable to the Disputed Area. It provided only a total of yearly expenditure in relation to each relevant tenement.
8. For this reason, it was necessary to examine the expenditure reports that BHP had submitted to the Department for each mining tenement in each relevant year, and thereby determine what amount was spent on rent for each tenement. It was then necessary to calculate what percentage could be attributable to the area that would be lost if the boundary of the Rocklea Temporary Reserve is defined by reference to the New Homestead.
9. Having conducted that exercise, it appears that BHP spent a total of $8,659 in rent for mining lease 47/689‑I for the period 5 June 2014 (the date of grant) to 6 June 2018.[528] If the boundary of the Rocklea Temporary Reserve is defined by reference to the New Homestead, 77%[529] of that sum ($6,667) would have been paid for land over which it has no rights. BHP did not mention Shire rates in its submissions. Even if Shire rates are included, the total spent on rates for mining lease 47/689‑I in those same reporting periods was $17,645.[530] 77% of that sum is $13,587. There is, however, no evidence that Shire rates were calculated by (or solely by) reference to area.
10. In relation to the second of BHP's Affected Mining Leases (mining lease 47/685‑I), it appears from the expenditure reports that BHP spent a total of $61,294 in rent for the period 6 June 2014 to 5 June 2018.[531] If the boundary of the Rocklea Temporary Reserve is defined by reference to the New Homestead, 18.89%[532] of that sum ($11,578) would have been paid for land over which it has no rights. If Shire rates are included, the total spent on rates for mining lease 47/685‑I in those same reporting periods was $123,217.[533] Noting again the lack of evidence that Shire rates were calculated by (or solely by) reference to area, 18.89% of that sum is $23,276.
11. It also appears that BHP spent $234,590.60 in rent for BHP's Exploration Licence from 1988 to 2018.[534] It appears that the Disputed Area is approximately 2.16% of the total area of BHP's Exploration Licence.[535] That percentage of the total rent paid is just over $5,000.
12. These amounts, even taken together, are not significant in the mining industry context.
13. The evidence in relation to the statutory minimum exploration expenditure was even less compelling.
14. First, there is no evidence that BHP spent money on exploration to meet the statutory expenditure requirements for BHP's Affected Mining Leases (rather than because it wanted to). Accordingly, there is no evidence that the fact that the minimum expenditure requirements were calculated on the basis that BHP's Affected Mining Leases included the Disputed Area (and were therefore higher than they should have been, if Aquila is correct) caused BHP to spend more than it would have if the Disputed Area had not been included in the calculation.
15. Second, Aquila points out that BHP has not sought to identify what, if any, of the exploration expenditure related to the Disputed Area. It also points out that BHP has not sought to adduce evidence that it would not have spent any of that money had it known that it did not have rights over the Disputed Area.
16. At best, there is evidence that, in the 51‑year period from 1967 ‑ 2018, BHP drilled two drillholes and established one track in the Disputed Area.[536] There is no evidence as to the cost of this. Further, it appears that BHP established the track and drilled one of the drillholes in 1971 ‑ 1972 and drilled the other drillhole in the 1990s.[537] This is in the context that, over a 51‑year period, BHP drilled 341 drillholes in the Rocklea Temporary Reserve.[538]
17. Apart from the proportion of the rent (and possibly the rates[539]) attributable to the Disputed Area, I do not accept that any loss could be said to have been caused by Aquila's delay.
18. BHP drilled the two drillholes and established the track in the Disputed Area in the 1970s and 1990s, well before Aquila had cause to wonder about the correct reference point for the Rocklea Temporary Reserve. Aquila's delay could not have affected that expenditure. Aquila[540] did not even apply for what became Aquila's Exploration Licence until 2004.
19. As noted earlier, I accept that BHP's legal fees in the Objection proceedings could have been avoided if Aquila had sought a declaration at an earlier time.[541] However, once BHP became aware of the Survey, it could have itself sought a declaration in this Court.[542] Instead, it lodged the Objection, and later the Plaint, in the Warden's Court. Aquila's delay was not the primary, or even a significant, cause of BHP's costs of the Objection proceedings.
20. Accordingly, the only loss to BHP caused by the delay is the proportion of the rent (and possibly the rates) that can be said to be attributable to the Disputed Area, and only in relation to the period after Aquila could be said to have delayed. Even at best for BHP, this could not have been before Aquila applied for what became Aquila's Exploration Licence in 2004.
21. The parties disagreed as to the value of the Disputed Area to BHP. Aquila pointed to evidence that indicated that, at least at times, the area was not of great significance to BHP.[543] BHP pointed to its expenditure in the Warden's Court, its maintenance of the area in good standing, and the fact that Aquila thought the Disputed Area was valuable.[544]
22. I accept that BHP would suffer some detriment if the boundary of the Rocklea Temporary Reserve is defined by reference to the New Homestead. It can be inferred that the Disputed Area is valuable. This is apparent simply from the parties' litigation in the Warden's Court and this Court. However, I am unable to assess the significance of that detriment. An expenditure of approximately $500,000 on costs, in the context of an industry which can be highly lucrative, is an insufficient foundation for such an assessment. Given that it was open to BHP to adduce evidence of the significance of the Disputed Area, and it elected not to do so, I would not give this factor much weight.

1. As noted earlier,[545] Aquila referred to the email sent by Mr Stevens of the Department to Ms Keith at BHP on 12 November 2018, which I refer to as the Stevens' November 2018 email.[546] In that email, Mr Stevens wrote:

[Rocklea Temporary Reserve] was applied for on 2/6/1967, received on 2/6/1967 and granted on 28/9/1967.

BHP (via Chris Clegg) requested a boundary calculation for [BHP's Exploration Licence] (and hence [Rocklea Temporary Reserve]) in early July 2005 in order to convert [BHP's Exploration Licence] to mining leases.

The 2005 boundary calculations were based on what [the Department] now considers to be 'old Rocklea homestead ruins'.

By mutual agreement with Chris, (as a cost saving measure, as it was for pegging purposes only) it was decided to derive the coordinates for Rocklea homestead from GoogleEarth, instead of sending a surveyor out to DGPS the pick-up.

At the time the imagery indicated that Rocklea homestead was at the eastern end of the cluster of buildings.

This was the best available information in July 2005, and [the Department] was not aware that the actual Rocklea homestead in use at the time [Rocklea Temporary Reserve] was applied for (description starting point) was actually the most westerly building, being about 393 metres bearing 295 degrees westerly of the position adopted.

Based on the boundary calculations BHP applied for M 47/673 to 691 on 18/7/2005.

On 25/5/2018 [the Department] directed that [Aquila's Mining Lease] be surveyed under the statutory survey obligations of the Mining Act 1978.

Peter Winter (tenement consultant for [Aquila's Mining Lease]) requested a meeting prior to the survey instructions being issued, in order to table new information regarding the true position of Rocklea homestead when [Rocklea Temporary Reserve] was applied for.

Peter tabled information sourced from LANDGATE which stated that the Rocklea station leaseholder erected a new homestead in the later part of 1966.

[Rocklea Temporary Reserve] was applied for on 2/6/1967.

Please refer to the first attachment for Peter Winter's information on Rocklea homestead sourced from LANDGATE.

This was presented at the meeting dated Friday 17 August 2018.

In the imagery the western building is labelled 'NEW' and the eastern building is labelled 'OLD'.

The second attachment contains all other relevant historical information.

On that basis Phil Richards (the nominated surveyor for [Aquila's Mining Lease]) was directed by [the Department] to DGPS locate the 'new' Rocklea homestead, on which to base amended boundary calculations for [Rocklea Temporary Reserve] (and hence [BHP's Exploration Licence]) in order to ascertain the ground available to [Aquila's Mining Lease], prior to the survey instructions being issued.

The second boundary calculation for [Rocklea Temporary Reserve] & [BHP's Exploration Licence] (based on the latest Rocklea homestead location information tabled by Peter Winter) resulted in a westerly shift in the calculations of about 393 metres bearing 295 degrees.

This resulted in more ground being available to the grant of [Aquila's Mining Lease] on its western side.

Please refer to the supplied historical information to substantiate these events.

1. Aquila asserts that this email, and others, shows that BHP did not regard Tengraph as reliable.[547]
2. BHP points out that the email shows merely that BHP was content to use Google Earth to mark where the Old Homestead was, rather than sending out a surveyor. BHP points out that a surveyor would not have determined that the proper starting point was the location of the New Homestead. The surveyor would simply have identified the location of the Old Homestead.[548]
3. Aquila further submits that BHP's asserted understandings as to the location of the boundaries of the Rocklea Temporary Reserve and BHP's mining tenements were not soundly based having regard to, among other things, the fact that the grant of mining tenements 'is subject to survey and, in the absence of evidence that a survey was carried out, it is not possible to state with certainty the boundary of a tenement or that the tenement was validly created'.[549]
4. As noted earlier,[550] to the extent Aquila relies upon Barker J's finding in CG (deceased) on behalf of the Badimia People, its reliance is misplaced. Further, the surveying of mining tenements is an administrative function. A survey does not control or determine the true scope and effect of a grant of a mining lease.[551]
5. Aquila also submitted that BHP ought to have surveyed its mining leases within about six months of their grant. Aquila notes that mining leases are granted under the Mining Act subject to survey. Aquila submits that, as the Act does not fix a time within which the survey must be done, it must be done 'with all convenient speed' (citing s 63 of the Interpretation Act 1984 (WA)[552]) or within a reasonable time.[553]
6. I do not accept the premise that the Act does not fix a time within which the survey must be done. Under the Mining Act, the survey must be done within the prescribed time.[554] Under the Mining Regulations,[555] a mining survey, in relation to a lease application lodged after 1 July 1991:
   1. shall, when required by the Director, be arranged by the applicant as soon as possible; or
   2. may, where the Director has not indicated that a mining survey is required at any particular time, be arranged by the applicant at any time.
7. The Director has not required BHP to arrange a survey for the mining leases in BHP's Neighbouring Tenure.[556]
8. I do, of course, accept that the precise boundary of a mining tenement will only be known once a survey is conducted. I further accept that the fact that the area of a mining tenement is displayed on Tengraph does not mean that the area has been accurately and permanently delineated. Nevertheless, as discussed next, I consider that BHP believed that the Rocklea Temporary Reserve was defined by reference to the Old Homestead.
9. Finally, Aquila referred to its cross‑examination of Mr Clegg about the 2005 events set out in the Stevens' November 2018 email. It noted that Mr Clegg could not recall his engagement with Mr Stevens and that therefore Mr Stevens' account should be preferred.[557] BHP does not dispute that BHP representatives in 2005 asked the Department to provide coordinates for the Old Homestead and that a surveyor did not go to the site. However, it points out that that is irrelevant because, if a survey had been done, it would have used the Old Homestead as the reference point.[558] I accept BHP's submission.
10. BHP also pointed out that the Stevens' November 2018 email was written 13 years after the events in 2005. It submits that contemporaneous documents suggest that it was not Mr Clegg that was engaging with the Department on this issue at that time.[559] It is unnecessary to consider this further. Even if it was Mr Clegg, a failure to remember these 2005 events, 19 years later, would not cause me to doubt the reliability or credibility of his other evidence.
11. BHP's failure to survey its mining leases meant that the precise boundaries of those leases were not known. It had no other effect and is of no other relevance to the issues in these proceedings.

1. Aquila submits that the evidence does not establish BHP's assertion that it has always believed that the Rocklea Temporary Reserve was defined by reference to the Old Homestead. It submits that the evidence establishes at best that BHP believed this from 1996 or 1998.[560]
2. I accept that BHP may not have known the precise boundary of the area. However, as I will explain, I consider that BHP has always believed that the Rocklea Temporary Reserve was defined by reference to the Old Homestead.
3. In support of its submission, Aquila refers to a plan and a drillhole.
4. The plan to which Aquila refers was given by BHP to the Department in 1970.[561] The plan depicts the Rocklea Temporary Reserve and two homesteads. Aquila submits that the Rocklea Temporary Reserve 'appears to have been plotted from the mapped location of the New Homestead'.[562] BHP points out that there is no evidence of this.[563] Aquila did not reply to this nor take me to the plan to seek to justify its submission. Having myself looked at the plan, it is not obvious to me that the Rocklea Temporary Reserve was plotted from the location of the New Homestead.
5. The drillhole to which Aquila refers was a drillhole that (it seems) was drilled outside of the Rocklea Temporary Reserve.[564] It was drilled by one of BHP's predecessors in title, Goldsworthy Mining in 1971.
6. Goldsworthy Mining drilled six drillholes in the Rocklea Temporary Reserve between 1971 and 1972.[565] Due to the passage of time, the location of those drillholes can only be estimated. The estimated locations put one of those six within the Disputed Area and one slightly to the east.[566] The latter would have been even further outside of the Rocklea Temporary Reserve if the reserve was defined by reference to the New Homestead. In my view, this shows only that the precise boundary was not known.
7. I accept that there is no evidence of what BHP's predecessors in title believed back in 1967 when it applied for the Rocklea Temporary Reserve. Given the passage of time and the context, this is unsurprising. There is evidence that shows that, at least by 1998, BHP believed it was defined by reference to the Old Homestead.[567] There is no reason why BHP's belief would have changed over time. Accordingly, despite the plan and the drillhole to which Aquila refers, and the lack of direct evidence, I would infer that BHP and its predecessors in title have always believed that the Rocklea Temporary Reserve was defined by reference to the Old Homestead.

1. Initially, Aquila sought five declarations. Three of those involved the boundaries of areas which were adjacent to areas covered by third party exploration licences (Third Party Boundaries).
2. In its defence, BHP pleaded the impact that the declarations would have on third parties.[568] It pleaded, as a reason for declining to grant the declaratory relief sought by Aquila, 'that it would be inequitable and unreasonable to disturb the status quo that has existed between 1967 and 2018 and thereby alter the rights of the Defendants and third parties'.[569] In BHP's written submissions, it submitted that the Court in its discretion should decline to make the declarations sought by Aquila because, as it was not known what the impact would be on third parties, the Court could not balance that against Aquila's commercial interest.[570]
3. In its written submissions in reply, Aquila indicated that it no longer sought declarations in relation to the Third Party Boundaries, and its pleading was duly amended. In the hearing, BHP submitted that third parties would still be affected. It pointed out that the Minister is a party to these proceedings and will be bound by the outcome. Aquila accepts this. It argues, however, that this would not directly affect third parties and would only have limited indirect effect.[571]

1. Before considering this further, it is important to be clear on what BHP's submission is. It is a submission about the discretionary refusal of relief, and not about joinder. BHP submits that declaratory relief should be refused because it would be inequitable and unreasonable to disturb the status quo that has existed between 1967 and 2018 and thereby alter the rights of third parties. It does not submit that relief should be refused because necessary parties were not joined. Nor did it submit that the proceedings should be adjourned until they are joined. That said, in its written opening submissions, BHP asserted that the impact on third parties[572]

raises a further issue as to whether those companies would need to be joined as necessary and proper parties to [Aquila's] claim, were the Court minded to make declaration A(a),[573] to ensure it was not liable to be set aside. That is not a matter about which [BHP] makes a submission, save to note that Aquila has apparently made a forensic choice not to join those parties despite the above facts having been pleaded in [BHP's] defence. (citation omitted)

1. If this was a real issue, it would have been better raised well before the matter was set down for trial. It was not. Further, it would have been helpful to have included it in the list of issues agreed by the parties prior to trial. It was not. Perhaps for these reasons, BHP expressly said it was not a matter about which it made a submission.
2. Nevertheless, if I had otherwise found in favour of Aquila, it would still have been necessary to consider whether it was appropriate to make the declarations in light of the third parties' tenements. If the declarations would directly affect any of the third parties, they should not be made unless the third parties are joined as parties to the proceedings.[574]
3. Aquila argues that the third parties would not be directly affected.
4. Aquila accepts that, if Aquila succeeds in these proceedings, the Department might redraw all of the boundaries that are defined by reference to the area of the Rocklea Temporary Reserve. Aquila further accepts that that is what the Department did in 2018.[575] I consider that it is almost inevitable that the Department would redraw all of the boundaries that are defined by reference to the area of the Rocklea Temporary Reserve.
5. Aquila also accepts that a larger area will be excluded from the areas the subject of the third party licences if it succeeds, compared to what would be excluded if it fails.[576] During the hearing, I raised whether this would necessarily be a detriment.[577] A licensee's obligations to pay rent and expend money are calculated by reference to area.[578] Applicants must apply for areas of land in graticular blocks.[579] It may be that some of the land in a graticular block is not desirable (for example, the terrain may make any mining in that location unprofitable). Nevertheless, it will count towards the area from which the rent and expenditure requirements are calculated. However, in the context of this lucrative industry, it is unlikely that the relatively modest rent and expenditure requirements would outweigh the benefits of having rights over a greater area.
6. Aquila points out that, of the third parties, only FMG Pilbara Pty Ltd (FMG) applied for its tenement before the boundaries of BHP's tenements were changed in Tengraph following the Survey (the 2018 Tengraph change).[580] That is, if Aquila succeeds, each of the other third parties would get exactly what they expected to get when they made their applications. Only FMG would get less than it expected. BHP accepts this.[581]
7. Aquila also referred[582] to O 18 r 6(1) of the Rules of the Supreme Court, which states:

No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

1. This does not mean, however, that orders should be made in the absence of a necessary party. If the declarations would directly affect any of the third parties, they should not be made unless the third parties are joined as parties to the proceedings.[583]
2. Had I found in Aquila's favour on the first two issues, I would have been troubled by this issue. I am not sure that, if I were to make the declarations Aquila seeks, the impact on the third parties could properly be described as indirect. However, as I have not found in Aquila's favour on the first two issues, and as this issue is independent of the discretionary issue, it is unnecessary to reach a concluded view.

Impact on third parties as a discretionary factor

1. The fact that only FMG applied for its tenement before the boundaries of BHP's tenements were changed in the 2018 Tengraph change is relevant to the discretion. That is, if Aquila succeeds, only FMG would get less than it expected.
2. BHP submits that FMG would not have been given notice of the Survey. The survey notification requirements require notice be given to an adjoining tenement holder,[584] and FMG was not an adjoining tenement holder of Aquila.[585] I accept this.
3. Aquila points out that the reduction in the area of FMG's exploration licence following the 2018 Tengraph change was relatively small. The reduction was approximately 88 ha, representing only 0.52% of the land the subject of FMG's exploration licence.[586]
4. BHP submits that I should not give declaratory relief 'in circumstances where the Court is not aware of the impact that will have on third parties and thus is not in a position to balance that against Aquila's commercial interest'.[587]
5. Aquila submits, in effect, that if BHP wished to raise the effect on third parties as a reason for refusing to make the declarations sought by Aquila, BHP ought to have joined the third parties.[588] In making this submission, I would not take Aquila to be contradicting the settled view that it is for the party seeking relief to choose who are the necessary parties to enable the Court to make the orders sought.[589] Rather, I take Aquila to be submitting that, if BHP wanted to assert that the effect on third parties was a reason to exercise my discretion to refuse relief, BHP ought to have joined the third parties.
6. I do not accept this. However, there is no evidence that would allow me to conclude that making the declarations would have a meaningful effect on any of the third parties. In particular, there is no evidence as to the value (or potential value) of the areas that would be included in, or excluded from, a third party tenement depending on who succeeds in this litigation. It was open to BHP to adduce evidence of this. It did not. Accordingly, I could only speculate as to whether any of the third parties would be meaningfully affected by the declarations. A speculative impact on third parties would not justify refusing declaratory relief. It is of no weight.

1. For completeness, I note that Aquila submitted that BHP failed to plead some of its allegations in relation to this third key issue. I agree that some of BHP's written submissions could have been clearer. Nevertheless, once BHP had clarified its case in opening,[590] I was satisfied that its pleading supported its case.
2. I also note that Aquila appeared to accept that the pleading issue was of limited significance.[591]

1. Had BHP established that it suffered meaningful[592] prejudice due to Aquila's delay, I would have refused relief. There was no good reason for the delay - it was just in the 'too hard basket'. Further, Aquila's position was not affected by its delay.
2. However, BHP did not establish this.
3. This is not to say that relief could only be refused if BHP established it had suffered meaningful prejudice due to the delay. However, given the absence of such prejudice, the other matters I have discussed would not have caused me to conclude that it was in the interests of justice to refuse relief. Had I found in Aquila's favour in relation to the first two key issues (and subject to the joinder issue), I would have granted declaratory relief.

1. I have found that the Rocklea Temporary Reserve was defined by reference to the Old Homestead. If I am wrong about that, I consider that Aquila's claim would be statute‑barred. If I am wrong about both, I would have granted relief.
2. I will hear from the parties as to final orders and costs.

Changes in Tengraph to the boundaries of BHP's tenements following the Survey, made on the basis that the Rocklea Temporary Reserve was defined by reference to the New Homestead

API Management Pty Ltd, the manager of the joint venture to which the plaintiffs are the parties

Letter by BHP to the Under Secretary of Mines on or around 26 May 1967 applying for seven temporary reserves, Exhibit 1.1 page 215

Plan prepared by a geospatial officer of the Department after a temporary reserve application was received by the Department

Document created by a Departmental officer identifying any excluded land, including Crown reserves and freehold title, and the extent of encroachment onto existing mining tenements or approved temporary reserves

The attachment to the Application Letter describing the areas over which the temporary reserves were sought, Exhibit 1.1 page 216

Exploration licence 47/1413-I granted to Aquila by the Minister on or around 23 March 2005

The seven areas sought to be made temporary reserves in the Application Letter, designated 4281H, 4282H, 4283H, 4284H, 4285H, 4286H, and 4287H in the Attachment

The area that became the Rocklea Temporary Reserve and that was designated 4286H in the Attachment

'Along the Ashburton' book by Rhonda McDonald, an extract of which is Exhibit 4.126

Attachment to the Application Letter describing the areas over which the temporary reserves were sought

First to third defendants and their predecessors in title, collectively and in the singular

The two BHP mining leases (mining leases 47/685‑I and 47/689‑I) which would be affected if the Rocklea Temporary Reserve was defined by reference to the New Homestead

Exploration licence 47/16‑I granted to BHP by the Minister on or around 4 October 1982

The areas covered by mining leases 47/685‑I, 47/686‑I, 47/688‑I and 47/689‑I

Department assisting the Minister with the administration of mining legislation

The part of land over which Aquila would have rights only if the Rocklea Temporary Reserve is defined by reference to the New Homestead

Extrinsic evidence to identify a thing or place referred to in an instrument

Documents incorporated into an instrument (expressly or by necessary implication)

Which of two homesteads on Rocklea Station was the reference point from which the boundary of the Rocklea Temporary Reserve was determined?

Are any of the parties' claims for declarations statute‑barred?

If the plaintiffs are otherwise entitled to declaratory relief, should relief be refused on discretionary grounds?

The Department's file in relation to the Rocklea Temporary Reserve, a redacted copy of which is Exhibit 1.1

Document titled 'Minute Paper for the Executive Council' containing the Minister's recommendation, on or around 28 September 1967, to Cabinet (Executive Council) that it advise the Governor in Council to confirm the temporary reservation of the Rocklea Temporary Reserve and approve the Minister's authorisation of BHP to temporarily occupy it, Exhibit 1.1 page 199

Used as a reference point in the Attachment for Areas (3), (4), (5) and (7)

New building erected in 1966 at Rocklea Station located approximately 390 metres northwest of the Old Homestead

Objection to the Survey Report lodged by BHP in the Warden's Court on 21 November 2018

An older building at Rocklea Station which was, on Aquila's pleading (and not denied by BHP), erected at an unknown date prior to June 1943

Department's public plan from which the Page 11 Plan was extracted

Appraisal Plan for the applications for temporary reserves over Areas (1), (2), (3), (4), (5), and (7), at folio 10 of Mines File 384/67, Exhibit 1.1 page 214

Appraisal Plan for the Rocklea Temporary Reserve Application, at folio 11 of Mines File 384/67, Exhibit 1.1 page 213

Letter written on 21 August 1968 by Frank Troy, on behalf of the pastoralists of Rocklea Station, to the Under Secretary for Lands, Exhibit 3.56 pages 697 ‑ 699

Plaint filed by BHP in the Warden's Court on 31 July 2019

Cases discussing the proper approach to the construction of planning and development consents

Document signed by the Minister on 4 August 1967, accepting the recommendation of the Under Secretary to approve some of the applications, including the Rocklea Temporary Reserve Application, Exhibit 2.3 page 491

Email sent by Mr Sale on behalf of Aquila to Ms Bear at Rio Tinto on 18 December 2013, Exhibit 8.213 page 2977

A temporary reserve on Rocklea Station in the Pilbara. It was labelled Area (6) and designated 4286H in the Attachment to the Application Letter. The first to third defendants have the right to mine in this area.

Application for a temporary reserve over the sixth area (labelled 'Area (6)') in the Attachment

BHP Minerals Pty Ltd v Aquila Steel Pty Ltd [2023] WASCA 21

Email sent by Mr Stevens of the Department to Ms Keith at BHP on 12 November 2018

Letter written by the Superintendent, Surveys and Mapping Branch to Mr Williams at BHP on 19 November 1974, Exhibit 1.1 page 105

Survey of Aquila's Mining Lease requested by the Department on 21 August 2018 and conducted by Phillip Richards

Mr Richards' report to the Department on the Survey on 10 October 2018, Exhibit 9.281 page 3562

Boundaries of third party tenements which are determined, in part, by which homestead the Rocklea Temporary Reserve is defined

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

[1] Other than the fourth defendant, who has filed a notice of intention to abide.

[2] The early events involved BHP's predecessors in title. On or around 27 August 1993, the second and third defendants each became a holder of Exploration Licence 47/16‑I (BHP's Exploration Licence). On or around 20 May 1998, the first defendant became a holder of BHP's Exploration Licence.

[3] On or around 31 October 2007, the second plaintiff became a holder of Exploration Licence 47/1413‑I (Aquila's Exploration Licence), together with the first plaintiff.

[4] At least by the relevant department prior to 2018.

[5] See Agreed Facts [10] ‑ [11], [15].

[6] See also the Agreed Chronology row 5.

[7] See under the heading 'What is the Identification Evidence? (Evidence to identify which homestead was the point of reference)'.

[9] A detailed discussion of the relevant legislation can be found in BHP Minerals Pty Ltd v Aquila Steel Pty Ltd [2023] WASCA 21 (Stay Decision).

[10] See also the Agreed Chronology row 10.

[11] See under the heading 'The grant of the Rocklea Temporary Reserve and right of occupancy'.

[12] See also the Agreed Chronology row 16.

[13] See the Agreed Chronology row 20. Now called the Department of Energy, Mines, Industry Regulation and Safety (for the State of Western Australia).

[14] Agreed Facts [24]. The evidence establishes only that this was done after 4 August 1967 and on or before 28 September 1967. BHP noted this (see ts 280, 410 ‑ 411), but did not suggest it mattered. In any event, it is an agreed fact that it was done 'On or around 28 September 1967'.

[15] Exhibit 3.31 page 651. See also Agreed Facts [33].

[16] See also the Agreed Chronology row 27.

[17] Exhibit 3.112 page 894. See also the Agreed Facts [35] and the Agreed Chronology row 35. The application was made under cl 1(3) of the Second Schedule (Transitional Provisions) to the Mining Act.

[18] Exploration Licence 47/16-I. See also the Agreed Facts [36]. See also the Agreed Chronology row 36. The application was granted under cl 1(4) of the Second Schedule (Transitional Provisions) to the Mining Act.

[20] Being the commencement date of s 16 of the Mining Amendment Act 1990 (WA).

[21] Section 57(2d) and s 57(2e) of the Mining Act.

[22] The application was made under s 58 of the Mining Act.

[24] The application was granted under s 57(1) of the Mining Act.

[25] Prior to 10 February 2006, the Minister's obligation to do this was 'subject to the Act'. From 10 February 2006, it was 'subject to s 75(8)' - see the Mining Amendment Act 2004 (WA) s 31; Western Australia, Government Gazette, No 24 (3 February 2006) 516.

[26] The areas of these leases are shown on the map annexed to these reasons.

[27] See Agreed Facts [52(b)], [55(b)].

[29] Witness Statement of Peter Arthur Winter filed 9 June 2023 (Winter Witness Statement) [43] ‑ [51].

[30] Winter Witness Statement [46] ‑ [51].

[31] See also Agreed Chronology row 74.

[32] See, for example, Exhibit 9.275 page 3542 and Exhibit 9.281 page 3562.

[33] See also Agreed Chronology row 75.

[34] See also Agreed Chronology row 76.

[35] See Agreed Facts [62] ‑ [66] and Agreed Chronology row 92.

[37] I refer to this as the 'Stay Decision'.

[38] under reg 120A(5) of the Mining Regulations 1981 (WA).

[39] Fourth Defendant's Notice to Abide by Decision of the Court filed 21 May 2021.

[40] At that time, called the Western Australian Department of Mines.

[41] Witness Statement of Christopher Clegg filed 18 October 2023 (Clegg Witness Statement) [2].

[43] Tengraph is a spatial enquiry and mapping system displaying the position of Western Australian mining tenements and petroleum titles in relation to other land information - see the Witness Statement of Annette Sophie Thomas filed 20 October 2023 (Thomas Witness Statement) [6].

[44] See under the subheading 'If it is legally ambiguous, is the Page 11 Plan necessarily incorporated?'

[45] See under the heading 'The grant of the Rocklea Temporary Reserve and right of occupancy'.

[49] ts 386 ‑ 387, referring to Exhibit 1.1 pages 215, 218, 219, and 221.

[52] See under the subheading 'BHP's failure to survey' under the discussion of Key Issue 3.

[54] Witness Statement of Simon Andrew Trinder filed 1 November 2023 (Trinder Witness Statement) [1] ‑ [2].

[55] See Trinder Witness Statement [12] ‑ [13].

[56] Being which version of a public plan an extract had come from. This is discussed later under the subheading 'The origin of the Page 11 Plan - a red herring'.

[58] Being whether the claims are statute‑barred.

[59] See the Witness Statement of Jonathon Chiam filed 9 June 2023 and the Witness Statement of Elizabeth Plajzer filed 20 October 2023.

[61] Meaning, in this instance, its predecessors in title.

[62] There had been an earlier application (Exhibit 1.1 pages 220 ‑ 223), but it was deficient.

[65] This is plain from its terms. See also Agreed Facts [19] and the Agreed Chronology row 10 in relation to the Rocklea Temporary Reserve.

[66] See also Exhibit 1.1 page 204 and Clegg Witness Statement [38].

[67] See, for example, the Plaintiffs' Opening Submissions in Reply filed 5 March 2024 (Aquila's Reply Submissions) [46].

[68] Although it was marked on a public plan. And see ts 272.

[71] The full descriptor used by the Department was 'Land Appraisal Summary Schedule'.

[72] Clegg Witness Statement [39] ‑ [43].

[75] See Trinder Witness Statement [12] ‑ [13].

[76] See BHP's Submissions [43] ‑ [44] for a useful summary of the documents that demonstrate this. See also BHP's Submissions [46] in relation to the temporary reserves granted to, or that were about to be granted to, a J.D. Nicholas.

[78] See under the subheading 'If it is legally ambiguous, is the Page 11 Plan necessarily incorporated?' under the heading 'What material was incorporated'.

[85] The parties agreed that, from its location in the file, it had been prepared and placed on the file by 31 July 1967. See Agreed Facts [21] and the Agreed Chronology row 14. I have found it to be earlier, but nothing turns on this.

[89] The actual application was made by BHP's predecessors in title.

[90] Plaintiffs' Opening Submissions filed 19 February 2024 (Aquila's Submissions) [87] and ts 163, 193.

[92] See for example ts 271, 273, 276, 279.

[98] See Exhibit 1.1 page 204 (point 3).

[99] See Exhibit 1.1 pages 209 ‑ 212, all of which appear to have been created on 2 June 1967.

[105] Aquila's Reply Submissions [43].

[106] Minute of Proposed Further Amended Writ of Summons Indorsed with Statement of Claim filed 28 March 2024 (Statement of Claim) [15] ‑ [16(a)].

[108] The Minister also temporarily reserved and authorised the occupation of Areas (3) ‑ (5) and (7), in accordance with the Under Secretary's recommendations.

[111] This was common ground - see the description of document 3 in volume 2 of the Trial Bundles (which is Exhibit 2.3 page 416).

[116] Discussed under the subheading 'Governor's role'.

[117] See the Agreed Chronology row 20.

[120] Exhibit 3.31 page 651. See also Agreed Facts [33].

[124] Being the letter referred to earlier, in which BHP told the Under Secretary that a star iron had been inserted into the ground for the approved temporary reserves - Exhibit 1.1 page 196.

[125] ts 453 ‑ 454 (responding to BHP's submission at ts 284 ‑ 285). Areas (3), (4) and (5) were the three areas described by reference to a datum peg at a specified distance and bearing from 'Mudlark Well (North West corner of Newman Sheet, Scale 1:250,000)'.

[126] BHP's Submissions [19] and Aquila Reply Submissions [17].

[128] Consolidated Gold Mining Areas NL v Oresearch NL (1990) 3 WAR 208.

[130] Oresearch (221), noting that the same issue arose in Phillips v Crown (1910) 12 CLR 287.

[133] See, in particular, Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 [42] ‑ [48] (Meagher JA). Meagher JA's analysis of the applicable principles has been repeatedly endorsed - see, for example, Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement) [2017] NSWCA 263; (2017) 96 NSWLR 434 [22], [72], [158(4)], [191], [193], [195] and Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147; (2019) 101 NSWLR 1 [77].

[134] Allandale [42] ‑ [43] and Bunderra [72] (Leeming JA), [193] (Payne JA).

[135] Allandale [43] ‑ [44] (Meagher JA), [179] (Ward JA); Bunderra [158(4)] (Payne JA).

[142] Auburn Municipal Council v Szabo (1971) 67 LGRA 427.

[144] Bunderra [23], [40] (McColl JA). See also [62], [66] (Leeming JA), [195] (Payne JA).

[148] Aquila's Submissions [82] and ts 255 ‑ 259.

[149] Aquila's Submissions [77] ‑ [78]. See also Aquila's Reply Submissions [62] ‑ [64].

[150] Owners - Strata Plan No 4983 v Canny [2018] NSWCA 275.

[151] Slough Estates Ltd v Slough Borough Council (No 2) [1971] AC 958.

[153] Owners - Strata Plan No 4983 [64].

[156] Allandale [44] (citations omitted).

[157] Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632, 637 (Shell Co).

[163] Slough (968). As it happened, having done so, the correspondence did not help.

[165] Aquila's Submissions [79] ‑ [80]. See also Aquila's Reply Submissions [63].

[166] Statement of Claim [9] ‑ [12].

[169] See under the subheading 'Must it be proved that the document was accessible to the public?' And see Slough (968).

[170] Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1994) 51 FCR 213.

[172] BHP's Submissions [21], citing Hunter per Basten JA at [57] ‑ [64], [80], with whom Gleeson JA (at [224]) and Preston CJ (at [265], [311]) agreed.

[173] See the very next sentence in BHP's Submissions [21], in addition to the surrounding paragraphs of [20] ‑ [23].

[176] See Hunter [46] ‑ [67]. In particular, the development application and the notice were required to be placed on the public register. Further, the development application form provided that the full description of the development could be included in the separate information provided in the Environmental Impact Statement.

[177] BHP's Submissions [24], with the footnote 'Hunter [268] ‑ [269]. As to the legislation in that case, see in particular [296] ‑ [301], [309] ‑ [310]'.

[179] See Allandale [42] ‑ [43] and Bunderra [72] (Leeming JA), [193] (Payne JA).

[180] BHP's Submissions [24] and Aquila's Reply Submissions [31].

[181] BHP's Submissions [24] and ts 269 ‑ 270.

[182] See BHP's Submissions [20], [23], [25].

[183] Nicholas v The State of Western Australia (Unreported, WASC, Library No 947, 23 September 1971) 6.

[184] And see Peppers Hotel Management Pty Ltd v Hotel Capital Partners Ltd [2004] NSWCA 114; (2004) 12 BPR 22,879 [125], in which the Court said 'Although one must have regard to the commercial background to the transaction, one gives far less emphasis to this factor when construing a public document than with one that affects only the parties. Indeed, when one gets to the level of a public document such as a ferry timetable, one does not consider the background at all.' See also Moses v State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 [166] ‑ [170] in relation to the admissibility of extraneous evidence establishing the Crown's original purpose in creating a temporary reserve.

[185] Aquila's Submissions [57], [82] (as clarified at ts 258), ts 255 ‑ 259 and BHP's Submissions [20], [23].

[186] ts 181 (Aquila) and BHP's Submissions [19] and ts 285 (BHP).

[191] Section 277 of the Repealed Act limited the maximum area over which a right of occupancy could be granted for the purpose of prospecting for gold, and provided for longer periods of a right to occupancy and renewals of rights of occupancy.

[192] BHP's Submissions [15] and Aquila's Submissions [45].

[194] See Agreed Statement of Facts [35] ‑ [36], Exhibit 3.119 page 904, and the Mining Act, Second Schedule.

[199] BHP's Submissions [14] and ts 309, 375.

[200] BHP's Submissions [15], [52] and ts 309.

[204] As defined in s 3 of the Repealed Act.

[205] Nicholas v The State of Western Australia (6). An appeal against this decision was dismissed - Nicholas v State of Western Australia [1972] WAR 168.

[206] BHP's Submissions [49] ‑ [50].

[209] Keen v Telstra Corp Ltd [2006] FCA 834; (2006) 91 ALD 324 [31].

[210] See under the subheading 'Page 11 Plan' under the heading 'What is the Identification Evidence? (Evidence to identify which homestead was the point of reference)'.

[214] See Exhibit 1.1 page 213 bottom right corner.

[215] See the Defence [14(ca)], [14(cb)].

[217] Aquila's Reply Submissions [52].

[218] Aquila's Reply Submissions [48(b)], paraphrasing Allandale [26].

[220] See under the heading 'What is the Identification Evidence? (Evidence to identify which homestead was the point of reference)'.

[221] BHP submits that many documents were incorporated, but they all ultimately led to the Page 11 Plan.

[222] See ts 411, 441 ‑ 442. See also the notation 'Onslow 13 Ten Mile Topo' in the bottom right-hand corner of the plan and Trinder Witness Statement [12] ‑ [13], [15] ‑ [17] and Clegg Witness Statement [20] ‑ [33], [41].

[223] There were seven versions of the Onslow 13 Plan in evidence, numbered 3 to 9 in the series - see Exhibit 3.18 page 577, Exhibit 3.48 page 689, Exhibit 3.58 page 701, Exhibit 3.71 page 727, Exhibit 3.74 page 733, Exhibit 3.80 page 740, and Exhibit 3.96 page 876.

[224] See, for example, the cross‑examination of Mr Clegg at ts 389 ‑ 393 and Aquila's closing submissions at ts 439, 441 ‑ 442, 462.

[225] See Clegg Witness Statement [41] and the notation on the bottom right‑hand side of the Onslow 13 Plan.

[226] Tengraph is a spatial enquiry and mapping system displaying the position of Western Australian mining tenements and petroleum titles in relation to other land information - see Thomas Witness Statement [6].

[231] ts 408 ‑ 409. BHP submits that the Page 11 Plan is admissible on one or more of four different bases. This was the second basis listed. The first, which asserts that the plan is admissible as Identification Evidence, is discussed in the next section under the subheading 'Page 11 Plan'. The third basis given is discussed above under the subheading 'Can subsequent documents be said to be incorporated?' The fourth basis is discussed above under the subheading 'Governor's role'.

[234] See ts 298 ‑ 299 and BHP's Submissions [39], [41].

[235] BHP's Submissions [30] ‑ [39], [41]. See also ts 302 and Defence [14(ca)].

[240] See under the heading 'The grant of the Rocklea Temporary Reserve and right of occupancy'.

[243] ts 460 ‑ 463. See also ts 184, 258 ‑ 259 and Aquila's Reply Submissions [51].

[244] See Aquila's submissions at ts 460 ‑ 463 in relation to documents having to be accessible to the public. I explain why I reject this under the subheading 'Must it be proved that the document was accessible to the public?' And see Slough (968).

[245] Locations Assessment - Engagement of Vincent Dinh as Independent Mapping/GIS Expert, filed 8 August 2023 [19], [32], [35] ‑ [37] (Dinh Report).

[252] See Aquila's Submissions [84] and ts 201 ‑ 202, 437 ‑ 438.

[253] Exhibit 3.56 pages 697 ‑ 699. See also Agreed Chronology row 31.

[256] BHP's Submissions [60] and ts 416.

[260] See Land Act 1933, s 98(7)(a), s 102.

[267] Aquila's Reply Submissions [101] footnote 78, [102] footnote 80, [135(d)] footnote 132 and ts 176 ‑ 177, 446, 484 ‑ 485 (and in cross‑examination of Mr Clegg at ts 395 ‑ 396).

[269] See under the subheading 'BHP's failure to survey' under the heading 'Key Issue 3 - Discretionary refusal?'

[271] See Dinh Report [12], [15] (and the attachments referred to in those paragraphs) and ts 202.

[272] See Exhibit 8.208 page 2967. See also Exhibit 9.281 page 3562. And see BHP's Submissions [66].

[273] Plajzer Witness Statement [8(a)], [8(d)], [8(e)], [8(j)], [8(l)], [8(n)], [8(u)], [8(w)], [8(x)], [8(y)], [8(aa)], (and the documents referred to in those paragraphs) and [10].

[274] Witness statement of Stephen Ernest Troy filed 20 October 2023 (Troy Witness Statement) [4].

[275] Troy Witness Statement [2], [4].

[277] Troy Witness Statement [11] and corrections to witness statement of Stephen Ernest Troy filed 8 March 2024 [2].

[278] Troy Witness Statement [5], [38].

[281] Troy Witness Statement [9] ‑ [10].

[282] Troy Witness Statement [16(a)], [24].

[284] Troy Witness Statement [8], [37].

[293] Troy Witness Statement [24], [26].

[302] Troy Witness Statement [9] ‑ [10], [31], [35].

[312] See ts 358 ‑ 359, 422 ‑ 423, 462. See also ts 355 ‑ 358.

[314] Witness Statement of David Cox filed 20 October 2023 (First Cox Witness Statement) [1] ‑ [3], [6].

[315] First Cox Witness Statement [8].

[316] First Cox Witness Statement [3].

[317] Statement of Claim [10]. BHP did not deny this.

[318] First Cox Witness Statement [5], [8].

[319] First Cox Witness Statement [7].

[320] First Cox Witness Statement [7].

[321] Troy Witness Statement [31], [34] ‑ [35].

[322] Second Witness Statement of David Cox filed, with leave, 5 April 2024 (Second Cox Witness Statement) [3(b)].

[323] First Cox Witness Statement [13].

[324] First Cox Witness Statement [9].

[325] Second Cox Witness Statement [3(a)].

[326] First Cox Witness Statement [9].

[327] First Cox Witness Statement [10].

[328] First Cox Witness Statement [12].

[330] Witness Statement of Michael Geoffrey Herbert filed 8 September 2023 (First Herbert Witness Statement) [1], [3].

[331] First Herbert Witness Statement [3], [5].

[332] First Herbert Witness Statement [11].

[333] First Herbert Witness Statement [31].

[334] First Herbert Witness Statement [15.2].

[335] Second Witness Statement of Michael Geoffrey Herbert filed 6 December 2023 (Second Herbert Witness Statement) [5], [6.2].

[336] Second Herbert Witness Statement [9.2].

[337] Second Herbert Witness Statement [10].

[338] First Herbert Witness Statement [15.1].

[339] First Herbert Witness Statement [13.1] ‑ [13.3].

[341] First Herbert Witness Statement [22].

[342] First Herbert Witness Statement [20].

[343] First Herbert Witness Statement [17] ‑ [18].

[344] Second Herbert Witness Statement [3.3].

[345] First Herbert Witness Statement [19.2] ‑ [19.3] and Second Herbert Witness Statement [3.1], [3.4].

[346] First Herbert Witness Statement [19.1], [19.4] ‑ [19.5].

[347] Second Herbert Witness Statement [3.2].

[348] Second Herbert Witness Statement [7].

[349] First Herbert Witness Statement [21].

[351] Troy Witness Statement [31], [34] ‑ [35].

[352] First Herbert Witness Statement [23], [24.2] ‑ [24.3] and Second Herbert Witness Statement [12].

[353] First Herbert Witness Statement [35] ‑ [36] and ts 345 ‑ 346.

[354] First Herbert Witness Statement [23] ‑ [24.1].

[355] Second Herbert Witness Statement [12].

[357] Second Herbert Witness Statement [14] ‑ [15].

[360] Second Herbert Witness Statement [18].

[361] Second Herbert Witness Statement [20.1] and ts 353 ‑ 354.

[362] Second Herbert Witness Statement [18] and Exhibit 10.518 page 4633.

[363] See Second Herbert Witness Statement [23] ‑ [26].

[364] Second Herbert Witness Statement [18], [27] and Exhibit 10.518 page 4633.

[368] ts 358 and Exhibit 10.518 page 4633.

[369] Second Herbert Witness Statement [18] (cf First Herbert Witness Statement [38.3]) and ts 354.

[370] First Herbert Witness Statement [25] ‑ [27], [37] ‑ [38].

[371] See First Herbert Witness Statement [38] and Exhibit 10.500 page 4614.

[372] See Second Herbert Witness Statement [22] and Exhibit 10.518 page 4633.

[374] Second Herbert Witness Statement [16].

[378] See Exhibit 10.501 page 4615 and ts 348.

[380] First Cox Witness Statement [9] and First Herbert Witness Statement [20].

[381] See the discussion of Mr Cox's evidence above.

[382] Aquila's Submissions [83] ‑ [85].

[383] See the discussion of the evidence of Mr Troy and Mr Herbert under the heading 'Witness evidence on the ground'.

[384] See Troy Witness Statement [33], the photographs referred to in Mr Herbert's witness statements (in particular, Exhibit 10.500 page 4614), and the discussion above of Mr Herbert's evidence.

[388] See under the subheading 'The Pastoralists' Letter'.

[389] Aquila's Reply Submissions [66].

[390] Aquila's Reply Submissions [67].

[391] See Exhibit 2.552 and Exhibit 3.556.

[392] This is discussed above. However, see in particular the Troy Witness Statement [7], [8], [37], [39] and the First Cox Witness Statement [7] ‑ [9], [13].

[393] The only reference he made to where anyone lived was his evidence that, when he went to Rocklea Station to muster for the first time, Kenneth Troy and his family were living in the New Homestead - see ts 344.

[394] Plajzer Witness Statement [8].

[395] Plajzer Witness Statement [8(aa)].

[397] Aquila's Submissions [75] ‑ [76]. See also [91].

[400] House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498.

[404] See reg 66 of the Mining Regulations. I also note that, although, like Aquila, BHP used the word 'landmark', it was used to refer to an objectively ascertainable location, rather than something observable from the ground - see, for example, ts 426 ‑ 427.

[405] See under the subheading 'Aquila's pleading'.

[406] BHP's Submissions [56] ‑ [59].

[409] Aquila's Submissions [76], Aquila's Reply Submissions [34] ‑ [38], and BHP's Submissions [63] (the last of which cited TAL Life Ltd v Shuetrim [2016] NSWCA 68; (2016) 91 NSWLR 439 [80]). See also House of Peace [26] ‑ [30] and SDA v Corporation of the Synod of the Diocese of Rockhampton [2021] QCA 172; (2021) 8 QR 440 [10].

[412] ts 426 ‑ 427 (BHP) and ts 440 (Aquila). See also ts 198 ‑ 199.

[415] BHP's Submissions [69]. See also Defence [30] ‑ [33].

[416] ts 318 ‑ 319. See also BHP's Submissions [67] ‑ [68].

[418] See Defence [32], BHP's Submissions [70] ‑ [75], ts 322 ‑ 328 and Aquila's Reply Submissions [104] ‑ [105].

[420] During the hearing, Aquila amended its Statement of Claim by deleting three of the five declarations it had originally sought.

[421] Aquila's Submissions [109] and BHP's Submissions [85] ‑ [86].

[422] Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2021] WASC 356 (Wyloo).

[423] Wyloo [119] ‑ [120]. See also O 18 r 16 of the Rules of the Supreme Court 1971 (WA).

[424] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 596; Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406, 414.

[426] Aquila's Submissions [109] and BHP's Submissions [80], both citing Wyloo (see [125] ‑ [138]). See also Aquila's Submissions [108] and Aquila's Reply Submissions [107].

[428] Plaintiffs' Submissions on Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38 filed 17 May 2024 (Aquila's Further Submissions) [4].

[429] Winter Witness Statement [14] ‑ [23].

[430] See ts 229 ‑ 230, 254, 361 ‑ 362 and BHP's Submissions [102].

[431] Winter Witness Statement [17], [19].

[432] API is the manager of the joint venture to which the plaintiffs are the parties - see Winter Witness Statement [2].

[433] The relevant pages of the book are Exhibit 4.126 pages 1164 ‑ 1166. It was tendered not to prove this was when the New Homestead was built, but as part of the narrative in relation to Mr Winter's investigations - see ts 170.

[434] Aquila's Reply Submissions [122(d)].

[437] Winter Witness Statement [28].

[438] Winter Witness Statement [32].

[439] Exhibit 8.218 page 2989 and Winter Witness Statement [33].

[440] Winter Witness Statement [36].

[442] Ms Bear was the 'Senior Advisor - Tenure Management and Strategy Approvals; State Agreement; Tenure and GIS' for Rio Tinto.

[445] The date Mr Winter emailed the Shire.

[446] The month in which the ground search for the datum peg began - see Exhibit 8.242 page 3186 and Winter Witness Statement [39]. And in the next paragraph I explain why I would not assume that Mr Winter caused the ground search to be carried out much before it occurred.

[448] Winter Witness Statement [39].

[449] Which had been granted on 15 May 2018 - see Agreed Chronology row 67.

[450] See, for example, Exhibit 8.247 pages 3206 ‑ 3209, Exhibit 8.251 pages 3220 ‑ 3221 and Winter Witness Statement [36] ‑ [41].

[451] Winter Witness Statement [36] and Exhibit 8.264 page 3300.

[452] Exhibit 8.255 page 3244. See also Exhibit 8.260 page 3274.

[454] Winter Witness Statement [46] ‑ [50] and Exhibit 9.267 pages 3305 ‑ 3306.

[455] Winter Witness Statement [46] ‑ [50].

[456] Winter Witness Statement [51].

[457] Aquila's Submissions [113] ‑ [114].

[461] Aquila's Further Submissions [4].

[464] Winter Witness Statement [28].

[466] Winter Witness Statement [51].

[467] Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38 (Wyloo (Court of Appeal)).

[468] In the reasons of Buss P and Livesey AJA, their Honours set out Tottle J's reasons on this point without comment - see Wyloo (Court of Appeal) [67] ‑ [82].

[469] This provided that a mining tenement could not be impeached in certain circumstances. His Honour found that the relevant effect of that provision is to put a person dealing with the registered holder of a mining tenement that had not been validly granted in the same position as if the title had been validly granted and to protect that person from claims founded on any contended invalidity of the tenement - see [96].

[472] Wyloo (Court of Appeal) [511], [513].

[473] Aquila's Further Submissions [3].

[474] Aquila's Further Submissions [4].

[475] See Wyloo (Court of Appeal) [513].

[476] BHP would contend that the first plaintiff had an interest from the time that Aquila's Exploration Licence was granted in 2005 and the second plaintiff had an interest from the time that it became a holder of the licence in 2007. It is unnecessary to decide this because Aquila's cause of action would be statute‑barred if it arose when Aquila applied for Aquila's Mining Lease or any time before that.

[477] See under the subheading 'Communication required?'

[478] See also the Winter Witness Statement [51].

[479] Aquila's Reply Submissions [123].

[481] See s 67 and s 75(7) of the Mining Act.

[482] Ultimately, Aquila's Mining Lease was granted by way of partial conversion of Aquila's Exploration Licence. And see s 67 and s 75(7) of the Mining Act.

[483] Further Amended Reply and Defence to Counterclaim [11].

[484] Second Additional Further Amended Reply and Defence to Counterclaim filed 28 March 2024 [11].

[485] See BHP's Submissions [93] ‑ [94] (and see also [97]). My only qualification would be that BHP said a justiciable controversy arose at the time the surveyor reported to the Department on 10 October 2018. I would have found that time began to run when the Department accepted and acted on the Survey Report by changing the boundary, which it did on 17 October 2018.

[487] Aquila's Submissions [125] and ts 373. See also ts 374.

[488] Clarence City Council [2020] FCAFC 134; (2020) 280 FCR 265 [189], reformatted to list form, quoting Financial Services Authority v Rourke [2001] EWHC 704 (Ch); [2002] CP Rep 14. See also Netline Pty Ltd and Kathryn Isabel Lance v QAV Pty Ltd [2014] WASC 280 [7] ‑ [12] (Beech J, as his Honour then was) and Johnco Nominees Pty Ltd v Albury-Wodonga (New South Wales) Corporation [1977] 1 NSWLR 43, 52 (Street CJ), 56 ‑ 57 (Moffit P).

[491] Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403.

[493] Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [24].

[494] Wyloo (Court of Appeal) [414] (Buss P and Livesey AJA), [510] ‑ [517] (Mitchell JA).

[495] Wyloo (Court of Appeal) [414] (Buss P and Livesey AJA).

[496] Wyloo (Court of Appeal) [512] ‑ [513] (Mitchell JA).

[497] Wyloo (Court of Appeal) [512] (Mitchell JA).

[498] Wyloo (Court of Appeal) [513] (Mitchell JA).

[499] Wyloo (Court of Appeal) [516] (Mitchell JA).

[500] Aquila's Further Submissions [6].

[502] Aquila's Reply Submissions [125]. See also ts 238 ‑ 239, 252.

[503] Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 516 [93] ‑ [94].

[504] CG (deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 [897] ‑ [899].

[505] State of Western Australia v Graham on behalf of the Ngadju People [2016] FCAFC 47; (2016) 242 FCR 231 [169] ‑ [172]. See also Stay Decision [150] ‑ [152].

[506] See the Stay Decision [162] ‑ [163].

[507] See the Stay Decision [148], [152].

[508] ts 238 ‑ 239, 247, 252 ‑ 253, 482 ‑ 483.

[510] Stay Decision [150] ‑ [152], [164]. These points are largely quotations.

[514] See the discussion under the heading 'Key Issue 2 - Time Barred?'

[516] And see s 75(7) of the Mining Act.

[517] See under the subheading 'Litigation' under the heading 'Background facts'.

[519] BHP's Submissions [104], [109].

[520] See Exhibit 10.359 pages 3993 ‑ 3994.

[522] See Stay Decision [156], [183]. And BHP concedes its cause of action arose in October 2018 - see BHP's Submissions [94].

[524] BHP's Submissions [123]. Mining lease 47/689‑I was originally 139.3784 ha (see Exhibit 5.169 page 1355). When the boundaries were changed in 2018, it was reduced to 32.42 ha (see Exhibit 10.387 page 10.4437).

[525] BHP's Submissions [124]. And see Aquila's Reply Submissions Schedule [24] (referring to s 75(5), but clearly meaning s 75(7)).

[526] Under this provision, applications for a mining lease made by the holder of an exploration licence 'shall' be granted over land that is the subject of the exploration licence, subject to other provisions of the Act.

[527] Mining Regulations reg 31(1), reg 109 and Schedule 2 items 1 and 8.

[528] Exhibit 7.197, pages 2508 ‑ 2510, 2544 ‑ 2546, 2583 ‑ 2587, and 2608 ‑ 2612.

[529] As noted previously, mining lease 47/689‑I was 139.3784 ha, but was reduced to 32.42 ha when the boundaries were changed in 2018.

[530] Exhibit 7.197, pages 2508 ‑ 2510, 2544 ‑ 2546, 2583 ‑ 2587, and 2608 ‑ 2612.

[531] Exhibit 7.197 pages 2514, 2534, 2566, and 2626.

[532] Mining lease 47/685‑1 was 990.0802 ha (Exhibit 5.161 page 1343) but was reduced to 803.09 ha when the boundaries were changed in 2018 - Exhibit 10.389 page 4448.

[533] Exhibit 7.197 pages 2514, 2534, 2566, and 2626.

[534] Exhibits 5.188, 5.190, 7.197, 8.236, 8.238, 8.248, 8.254, 9.306, 9.307, 9.308, 9.309, 9.310, 9.311, 9.312, and 9.313. The rates were $69,058.

[535] Aquila asserted that the Disputed Area was about 2.8 km2 (Aquila's Submissions [2]). The area applied for and granted in 1982 as BHP's Exploration Licence (E47/16) was 129.5 km2 - see Exhibit 3.112 page 894.

[536] Witness Statement of Lambodar Moharana filed 19 October 2023 (Moharana Witness Statement) [17] ‑ [18] and Exhibits 10.504 and 10.505 (pages 4618 ‑ 4619).

[537] Moharana Witness Statement [18(d)].

[538] Moharana Witness Statement [15]. Mr Moharana referred to the area of BHP's Exploration Licence and its mining leases 47/683‑I to 47/691‑I (which equates to the area of the Rocklea Temporary Reserve) as the 'Rocklea Tenure' - see Moharana Witness Statement [13].

[539] BHP did not make any submissions as to the rates and there is no evidence that rates were calculated by (or solely by) reference to area.

[540] In this instance, meaning the first plaintiff.

[542] See Stay Decision [156], [183]. And BHP concedes its cause of action arose in October 2018 - see BHP's Submissions [94].

[543] See also Aquila's Submissions [2] and the documents referred to in footnote 5, and ts 447, for the location of the confidential documents.

[544] BHP's Submissions [128] and ts 365.

[545] See under the heading 'What is the Identification Evidence? (Evidence to identify which homestead was the point of reference)'.

[547] Aquila's Reply Submissions [135(d)] and ts 484 ‑ 485.

[549] See Aquila's Reply Submissions [135(b)].

[550] See under the subheading 'BHP's failure to survey'.

[551] Stay Decision [150], [152], [164].

[552] Section 63 of the Interpretation Act relevantly provides that, where no time is fixed within which an act shall be done, the act shall be done with all convenient speed.

[553] Aquila's Submissions [101] ‑ [103].

[554] Section 82(1)(ba) of the Mining Act.

[555] Regulation 118B. And see s 3 of the Interpretation Act.

[556] Fitzpatrick Witness Statement [33] ‑ [34].

[560] Aquila's Reply Submissions [130] ‑ [134].

[561] Exhibit 10.365 page 4294 (and see also Exhibit 1.1 pages 178 ‑ 179).

[562] Aquila's Reply Submissions [131(a)].

[564] Aquila's Reply Submissions [131(b)].

[565] Moharana Witness Statement [15].

[566] Moharana Witness Statement [15] ‑ [17] and the map referred to, Exhibit 10.505 page 4619.

[567] See Exhibit 4.122 pages 1052 ‑ 1063, Exhibit 10.424 page 4509, and Trinder Witness Statement [18(b)] ‑ [28].

[570] BHP's Submissions [137] ‑ [138].

[573] Declaration A(a) sought a declaration that the reference to 'Rocklea Homestead' in the Reservation Document was a reference to the New Homestead. It was deleted from Aquila's amended statement of claim. However, in oral submissions, BHP contended, in effect, that this made no difference to the impact that the declarations still sought by Aquila would have on third parties.

[574] Harding v Her Worship Ms B Lane SM [2001] WASCA 37 [15] ‑ [16]. See also John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 [131] ‑ [138] and Jones v Miami Waterfront Developments Pty Ltd [2012] WASC 483 [12] ‑ [13], [22], [30] ‑ [31], [41] ‑ [42] (Edelman J).

[576] This was ultimately accepted - see ts 487 ‑ 489. Note that BHP already has priority over third parties on the eastern side, so no third party will lose any land if the declarations sought by BHP are made.

[578] Mining Regulations reg 31(1), reg 109 and Schedule 2 item 8.

[579] A 'graticular block' is an area measuring one minute of latitude by one minute of longitude. See s 56C of the Mining Act.

[580] Aquila's Reply Submissions [139].

[583] Harding [15] ‑ [16]. See also John Alexander's Clubs Pty Ltd [131] ‑ [138] and Jones [12] ‑ [13], [22], [30] ‑ [31], [41] ‑ [42] (Edelman J).

[584] Regulations 118A and 120A(3) of the Mining Regulations.

[586] Aquila's Reply Submissions [139] footnote 138.

[587] BHP's Submissions [137]. Although this submission referred to Declaration A(a), which was deleted from Aquila's amended statement of claim, BHP contended, in effect, that this made no difference to the impact that the declarations still sought by Aquila would have on third parties.

[589] News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410, 526.

[592] by which I mean not insignificant.