AQUILA STEEL PTY LTD v BHP MINERALS PTY LTD [NO 2]

1. The Act has since been repealed. In 1967, s 276 of the Act provided:

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.

1. The following primary facts are established by facts agreed at trial, uncontroversial documentary evidence and findings of the trial judge which are not challenged in this appeal.

Application for reservation and rights of occupancy

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]
2. On or around 26 May 1967, Goldsworthy applied for the creation of seven temporary reserves, and the right to occupy those temporary reserves, under s 276 of the Act. This application was by letter to the Under Secretary for Mines with an attachment describing the areas over which the temporary reserves were sought.[3] The seven areas were labelled numerically and allocated numbers, written by an officer of the Department of Mines (Department) in red pen in the margin of the attachment, as a reference number for each proposed temporary reserve.[4] In the attachment, the sixth area (labelled 'Area (6)') was designated 4286H and was described as:[5]

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. After the application was received, a Department draftsperson prepared an appraisal plan on which he marked the boundary of Rocklea Temporary Reserve (Page 11 Plan). The boundary was calculated by reference to a square on the Rocklea Station marked 'Rocklea'. The Page 11 Plan, which was created by 14 June 1967,[6] was an extract from a public plan, which had a scale of 1 inch to 10 miles, and was derived from a base plan created in 1960.[7]
2. On or around 31 July 1967, the Under Secretary for Mines recommended to the Minister that the Goldsworthy 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:[8]

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.

(a) accepted the Under Secretary's recommendation that the application be approved, subject to conditions;

(b) temporarily reserved Area (6) from occupation under s 276 of the Act; and

(c) authorised the temporary occupation of Area (6), subject to conditions and the Governor's approval,

by signing the Under Secretary's recommendation in two places.

1. The Minister signed under a stamp 'Approved' next to which the numbers of those temporary reserves which had been approved (including the Rocklea Temporary Reserve) were handwritten. The Minister's second signature was under a stamp 'Applications Refused', next to which the numbers of those temporary reserves which had been refused were handwritten. It was more likely that the numbers of the temporary reserves approved and refused were written in the document before it was signed by the Minister.[9]
2. The Rocklea Temporary Reserve was recorded in a handwritten register, maintained by the Department.
3. On or around 28 September 1967, the Governor in Executive Council resolved to:[10]
   1. confirm under [s 276 of the Act] the temporary reservation by the Minister for Mines of Temporary Reserve no 3837H situated at Yarrie in the Pilbara Goldfield as shown bordered 'red' on [the Page 11 Plan]

1. approve of the Minister authorising [Goldsworthy] to temporarily occupy the said Temporary Reserve for a period expiring on the 31st day of March, 1968 for the purpose of prospecting for iron ore, subject to [certain conditions].
2. On 6 October 1967, the Rocklea Temporary Reserve was notified in the Government Gazette of Western Australia.[11]
3. The following month, Goldsworthy 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 and could not be located in searches conducted in 2013 and 2018.[12]

1. In 1967, the pastoral lease for the Rocklea Station was held, as tenants in common in equal shares, by Frank Troy (who was about 60 years old) and his sons Allan Troy (who was about 39 years old) and Ken Troy (who was about 37 years old).[13]
2. Several witnesses who had seen Rocklea Station in 1967 gave evidence at trial. The most detailed evidence, which was accepted by the trial judge,[14] was given by Stephen Troy, who is the son of Ken Troy and the grandson of Frank Troy. Stephen Troy gave evidence of the following facts.
3. Frank and Ken Troy ran the station together, although Frank Troy was 'in charge'. Frank Troy controlled the station chequebook and dealt with enquiries to, and correspondence on behalf of, the business.[15] Frank and Ken Troy were both killed in an accident in 1973.[16]
4. Prior to the construction of the New Homestead, the Troy family lived in the Old Homestead, which had probably been constructed prior to 1943. Frank Troy's wife moved to Perth in around 1965. After the construction of the New Homestead, Frank Troy remained living in the Old Homestead until his death in 1973. Frank Troy infrequently travelled away from Rocklea Station, and only ever for two or three weeks at a time. Usually, he would travel to Perth for business and to visit his wife.[17]
5. 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.[18]
6. 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. There was a substantial kitchen that also had running water, as well as a water heater, a large woodfired stove, and ovens. The kitchen opened onto the dining room (which doubled as the station's office). There were two kerosene fridges in the dining room. There was an electric washing machine in an undercover patio outside the kitchen.[19]
7. 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. Electricity for the lights and washing machine was supplied to the Old Homestead by a generator.[20]
8. There were numerous outbuildings, utilities, and other infrastructure in the immediate vicinity of the Old Homestead, including sheds, workshops, stockyards and a cool house.[21]
9. All the business of Rocklea Station was conducted in the Old Homestead. 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. Visiting surveyors and mining company representatives laid out large maps on the dining room table. Contracts were negotiated and signed in the Old Homestead. Dealings with employees were conducted in the Old Homestead.[22]
10. Construction of the New Homestead commenced in late 1966. 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. Ken Troy and his family moved into the New Homestead sometime between April and July 1967. They remained living there until Ken Troy's death in October 1973.[23]
11. 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. The New Homestead had three bedrooms, a large lounge room, a dining room, and an indoor laundry and bathroom.[24]
12. The New Homestead cost $14,000 to erect (approximately $218,000 in 2023 terms), in a context where improvements by the pastoralists in the succeeding two financial years totalled $2,600 and $994. The New Homestead was built from more modern materials than the Old Homestead - 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 bloodwood). In 1967, the New Homestead became the building in which more people lived. The Old Homestead became run down over time, but was habitable at the time the Rocklea Temporary Reserve was created.[25]
13. The New Homestead was only used as a residence. 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.[26]
14. In 1967, access to Rocklea Station was by:[27]

(a) unsealed access tracks, used to travel to Tom Price, which extended to the north from the Old Homestead complex across the creek past the workers' accommodation; and

(b) the original access road, known as the 'station road', which extended south through neighbouring stations and eventually connected to Onslow and Carnarvon.

Trial judge's conclusion as to identity of 'Rocklea Homestead'

1. The trial judge concluded that, in the context of a reference to a homestead on a pastoral station made for the purposes of locating a mining tenement, the homestead is the building in which the person in charge lived.[28] The trial judge said:[29]

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.

1. As the evidence established that Frank Troy, the person in charge, lived in the Old Homestead at the time of the grant, the trial judge was satisfied that the Old Homestead was 'objectively intended' to be the reference point for the Rocklea Temporary Reserve.[30]
2. The trial judge also said that she would have concluded that the Old Homestead was the 'Rocklea Homestead' if the test was:
   1. What a visitor to Rocklea Station would have thought was the Rocklea Homestead (which would be 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).[31]
   2. A search for a physical landmark (which was likely to be a long‑established structure rather than a newer, more prominent building).[32]
   3. One of weighing up relevant factors,[33] in which case the factors such as:

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

were outweighed by the following factors that the trial judge considered 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.

1. Aquila contends, and we accept, that there are two distinct stages to determining which of the Old Homestead or the New Homestead is relevantly the 'Rocklea Homestead' in the present case. The first stage is to construe the Minister's grant by reference to the public documents which created the Rocklea Temporary Reserve. Extrinsic material not available to members of the public cannot be used to construe the words 'Rocklea Homestead' in the documents creating the temporary reserve. However, once the phrase is construed, extrinsic evidence can be used to identify a place or thing which is referred to in the documents creating the temporary reserve.[34]
2. In construing the documents creating the temporary reserve, Aquila says that attention is to be confined to the Minister's approval of the Under Secretary's recommendation read with the application letter and its attachment. The appeal can be resolved on the assumption that this contention is correct, without resolving BHP's notice of contention to the effect that regard should also be had to the subsequent approval of the Governor in Council, and to the Page 11 Plan and evidence of its provenance.
3. Aquila contends that, on its proper construction, the reference to 'Rocklea Homestead' is to the physical reference point or landmark which was objectively:

(a) the most prominent, newer or modern home on Rocklea Station; or

(b) the building which looks like the building in which the person in charge may well live.

1. Aquila contends that these matters are to be determined by the 'visible observable features' rather than the function actually performed by the building. They contend that departmental officers and members of the public are better able to identify a landmark or defined physical features as a point of reference objectively based on what a building looks like and its physical features, not what the building is used for nor who actually occupies it.
2. We do not accept Aquila's submission that the phrase 'Rocklea Homestead' is used to identify a building by reference to its 'visible observable features' rather than the use to which it is actually put.
3. The context in which the phrase is used counts strongly against that meaning. The temporary reserve was created by reference to a building on a pastoral lease in the Pilbara. There is nothing to suggest that the Minister or any of the departmental officers dealing with Goldsworthy's application would know anything about the particular features of Rocklea Station other than its very large size which was apparent from public maps. However, pastoral stations are notoriously of vast area and the idea, suggested in Aquila's submissions, that useful information might be gained by a person standing at the boundary of the pastoral lease is fanciful.
4. Pastoral leases in the northwest of this State may be expected to have various structures used for various purposes, including accommodating those who hold the pastoral lease, those who manage its operations and the workers employed on the station. Identifying the 'homestead' on a pastoral station must inevitably involve the inquirer going onto the pastoral lease and observing what is happening on it. There would be no reason in that case to confine the inquirer to physical features of a building observable from a distance and to exclude observations that might be made about what was happening at the relevant places.
5. The effect of Aquila's construction is that the reference to a homestead is to the newest residential building on the pastoral lease. As the trial judge noted,[35] correctly, the effect of accepting Aquila's construction would be that a newly constructed worker's quarters near the entrance to a pastoral station would be the homestead of the pastoral station. That result does not accord with the ordinary meaning of the term 'homestead'.
6. We agree with Howard J that the cases relied on by Aquila, particularly Consolidated Gold Mining Areas NL v Oresearch NL and Theunissen v Barter,[36] do not justify a different conclusion in the present case.
7. In our view, the reference to 'Rocklea Homestead' is naturally understood as identifying a structure by reference to its function rather than its mere appearance. We agree with the trial judge's conclusion in that regard.
8. In our view, the phrase 'Rocklea Homestead' refers to the headquarters of the business operated on the Rocklea station pastoral lease, ie the place at which, and around which, the activities and operations of Rocklea station are centred and coordinated. To our minds, that is the most natural meaning of the phrase understood in its context.
9. However, once it is accepted that the phrase 'Rocklea Homestead' identifies a structure by reference to function rather than appearance, it does not matter for the outcome of this case precisely how the function of the building designated 'Rocklea Homestead' is understood. On any reasonable understanding of the function performed by a homestead on a pastoral lease, the Old Homestead was the building that actually performed that function on the facts found by the trial judge. If, as the trial judge held, the reference is to the place where the person in charge lived, then that was the Old Homestead in 1967. If, as we prefer, it denotes the headquarters of the business operated on the pastoral lease - the place from which operations were centred and coordinated - then that was also the Old Homestead on the facts found by the trial judge. The Old Homestead was also the 'Rocklea Homestead' on the other permutations of the proper construction of that phrase considered by the trial judge and noted at [38] above.
10. For these reasons, the trial judge was correct to conclude that the Old Homestead is the building referred to as 'Rocklea Homestead' in the documents creating the Rocklea Temporary Reserve.

1. By ground 1(a), Aquila contends that the trial judge erred in her approach to the construction question, essentially by conflating the two distinct stages referred to at [39] above. We do not accept that the trial judge made this error. On a fair reading of the trial judge's reasons as a whole it is abundantly clear that her Honour separately considered:

(a) what, properly construed, was meant by the phrase 'Rocklea Homestead'; and

(b) which homestead answered that construction on the evidence.[37]

But in any event this ground does not affect the resolution of the appeal. The outcome of this appeal turns on this court's own construction of the documents rather than whether the trial judge made a methodological error in construing them.

1. By ground 1(b), Aquila contends that the trial judge erred in failing to construe the reference to 'Rocklea Homestead' in the manner described at [41] above. For the reasons we have explained, the trial judge was correct to reject Aquila's construction of that phrase. On the proper construction of the phrase 'Rocklea Homestead', and the facts as found and not challenged on appeal, the trial judge was correct to make the declarations made in favour of BHP.
2. Ground 2(a) of Aquila's appeal contends that the trial judge erred in rejecting as inadmissible a letter written by Frank Troy to the Under Secretary for Lands on 21 August 1968. There is no merit to ground 2(a) for the reasons explained by Howard J.
3. In short, the trial judge did not reject the letter as inadmissible. To the contrary, the trial judge clearly accepted the statements therein as to:

(a) the New Homestead being erected in the latter part of 1966; and

(b) the $14,000 cost of the New Homestead.[38]

At most the trial judge found that Frank Troy's labelling of the two buildings (as 'NH', 'OH' and 'New and Old House') had no probative value to the question the court was required to determine.[39] There was no error in that conclusion.

1. By ground 2(b), Aquila contends that the trial judge erred in taking into account evidence, such as the evidence of Stephen Troy, which went beyond the observable features of Rocklea Station and public records. Ground 2(b) is premised on the success of ground 1(b). Ground 2(b) fails with ground 1(b).
2. The failure of grounds 1 and 2 means that the trial judge was correct to dismiss Aquila's claim on its merits. It is therefore unnecessary to resolve grounds 3 and 4, which concern the question of whether Aquila's claim would be statute barred if it were established.
3. As we have noted, it is also unnecessary to resolve BHP's notice of contention.

1. For the above reasons, we would dismiss the appeal.

1. The primary decision concerned which of two homesteads on the Rocklea Pastoral Station in the Pilbara region was the reference point from which the boundary of a temporary mining reserve was determined.
2. The primary judge, Archer J as she then was, found that it was the 'Old Homestead' that was the reference point. The appellants contend her Honour erred in so doing.
3. The primary judge found, and it is not in dispute:

[14] There is, and at all material times has been, a pastoral station located in the Pilbara region of Western Australia known as Rocklea Station

[15] Sometime prior to 1966, the Old Homestead was erected on Rocklea Station.[40]

[16] Sometime in 1966, the New Homestead was erected at Rocklea Station, approximately 390 m northwest of the Old Homestead.[41]

1. The following factual matters are also not in dispute in this appeal.[42]
2. On about 26 May 1967, a predecessor in title to the first, second and third respondents (collectively BHP[43]) made application by letter to the Under Secretary for Mines for, in effect, the constitution of temporary reserves and the right to occupy those to prospect for iron ore under s 276 of the (since repealed) Mining Act 1904 (WA) (Repealed Act).[44] The primary judge defined that letter as the Application Letter at [87].
3. Attached as part of the Application Letter were two pages[45] which described seven 'Areas' which were the subject of the application for temporary reserves. The primary judge defined those two pages as the Attachment at [87].
4. In the Attachment, 'Area (6)' (which also bore a notation in red handwriting of '4286H') was stated to be: 'Datum peg 10.0 miles at bearing 259°00' from Rocklea Homestead ...'.
5. On 4 August 1967, the Minister for Mines temporarily reserved, amongst other areas, Area 6, 4286H.[46] The primary judge defined this as the 'Rocklea Temporary Reserve'.[47] That authorised the temporary occupation of the same, subject to conditions and the Governor's approval.[48] The primary judge defined this as the Reservation Document at [119].[49]
6. By that document, at that time, the Rocklea Temporary Reserve was granted.[50]
7. The primary judge found that at the time of the Reservation Document there were two places that could have been referred to as the Rocklea Homestead at [201]: the 'Old' or the 'New' Homestead.
8. On 8 August 1967, the Under Secretary informed BHP that, amongst other things, the Minister had approved the Rocklea Temporary Reserve and advised that, on remittance of the fees payable, the approval would be submitted for confirmation in Executive Council.[51]
9. On about 28 September 1967, the Minister recommended that Cabinet (Executive Council) advise the Governor in Council to, relevantly:
   1. confirm the temporary reservation by the Minister of the Rocklea 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 for the temporary occupation of the Rocklea Temporary Reserve expiring on 31 March 1968 for the purpose of prospecting for iron ore.[52]

The primary judge defined this as the Minister's Recommendation at [130].[53]

1. One of the 'attached' conditions to the Minister's Recommendation was 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 its position: [131].[54]
2. Further, on or around 28 September 1967:
   1. the Cabinet (Executive Council) advised the Governor in Council in the terms of the Minister's Recommendation;[55] and
   2. the Governor in Council confirmed the Rocklea Temporary Reserve and its occupation.[56]
3. On 6 October 1967, the Rocklea Temporary Reserve was notified in the Government Gazette.[57]
4. In November 1967, a datum point for the Rocklea Temporary Reserve was marked by the driving of a star iron into the ground; but that has been subsequently lost: [137].[58]
5. Given that the peg has been lost, it was common ground below and in this Court that the Court was not engaged in the task of deciding where that peg had most likely been located; and that question could be put to one side in the exercise which had to be undertaken.[59]
6. From October 1967, BHP had a right to occupy the Rocklea Temporary Reserve for the purpose of prospecting for iron ore pursuant to the Governor in Council's confirming the Minister's temporary reservation: [126]; see also BHP Minerals Pty Ltd v Aquila Steel Pty Ltd [2023] WASCA 21 (Stay Decision) [3].
7. The joint reasons of Mitchell and Vaughan JJA have set out a description of the Rocklea Station and its two homesteads in 1967 which I adopt without repeating it here.[60]
8. By a letter dated 21 August 1968, the Rocklea Station pastoralists notified the Under Secretary for Lands & Surveys that '[In the] latter part of 1966 we erected a New Homestead at a cost of $14,000'.[61] The primary judge defined that as the Pastoralists' Letter at [275].
9. The Pastoralists' Letter attached a plan on which were the notations 'NH' and 'OH'; which were said in the Letter to be 'New & old House'.[62]
10. The coming into force, and the relevant provisions including the transitional provisions, of the Mining Act 1978 (WA) were set out in the Stay Decision at [15] - [19] and do not need to be repeated here.
11. The primary judge traced BHP's subsequent rights after 1982 to mine in the area subject to the Rocklea Temporary Reserve: see [29], [31], [36], [38]. I do not need to recite here that unchallenged chronology, save to note that the Minister granted BHP an Exploration Licence over the Rocklea Temporary Reserve on about 4 October 1982.[63]
12. On about 24 May 2004, the appellants (collectively Aquila) applied for an exploration licence over land, some of which was within BHP's Exploration Licence.[64]
13. On about 23 March 2005, Aquila was granted an Exploration Licence which excluded the land within BHP's Exploration Licence, but which shared a boundary with BHP's Exploration Licence.[65]
14. Subsequently, the Minister:
    1. on about 6 June 2014, granted mining leases to BHP by way of partial conversion of its Exploration Licence;[66] and
    2. on about 14 May 2018, granted a mining lease to Aquila by way of partial conversion of its Exploration Licence.[67]
15. Those mining leases shared a boundary which, as the primary judge found at [42], was in part identified by the area of BHP's Exploration Licence, which in turn was identified by the area of the Rocklea Temporary Reserve.
16. The primary judge traced the history of disputation and litigation between Aquila and BHP at [47] and following. For present purposes I do not need to recite that here.

1. The primary judge described the pivotal issue as being: which of the Old and New Homesteads on the Rocklea Station was the reference point from which the boundary of the Rocklea Temporary Reserve was determined at [1].
2. Her Honour then identified, at [6], the key issues as:
   1. Which of two homesteads on the Rocklea pastoral station was the reference point from which the boundary of the temporary reserve was determined (Key Issue 1)?
   2. Are any of the parties' claims for declarations statute‑barred (Key Issue 2)?
   3. If the plaintiffs are otherwise entitled to declaratory relief, should I refuse to grant the relief on discretionary grounds (Key Issue 3)? (emphasis in the original)
3. The primary judge determined Key Issue 1 by finding that the Rocklea Temporary Reserve was defined by reference to the Old Homestead: [4], [439]. Her Honour said that was sufficient to resolve the dispute but went on to consider the other two key issues.
4. The primary judge would have resolved Key Issue 2 by finding that Aquila's claims were statute barred at [512]. In effect, then, her Honour found that she did not need to resolve whether BHP's claims were statute barred at [514].
5. As to Key Issue 3, the primary judge stated at [617] that had she found in Aquila's favour in relation to the first two key issues (and subject to one other issue), she would have granted it declaratory relief.

[1] In determining (at J[68][199], [215], [216], [255] and [256]), the boundary of the Rocklea Temporary Reserve to be ascertained by reference to the location of the Rocklea Homestead (a term found at J[230] not legally ambiguous), the primary judge erred in law in construing the reference to "Rocklea Homestead" in the documents creating the Rocklea Temporary Reserve (being the Application Letter and the Attachment, and the Reservation Document):

(a) by asking which of the two homesteads was objectively intended to be the reference point, as if it involved a constructional choice between the two homesteads, rather than as a specified physical reference point or landmark (at J[168], [201], [284], [287], [423] and [429]); or

(b) to mean (at J[410], [421]) the building in which the person in charge actually lives, or the long-established structure (at J[426]) rather than the physical reference point or landmark which was objectively:

(i) the most prominent, newer, or modern home on Rocklea Station; or

(ii) the building which looks like the building in which the person in charge may well live.

[2] Further, or in the alternative, the primary judge erred in law in identifying the Rocklea Homestead:

(a) (at J[285] and [395]) by rejecting as inadmissible the Pastoralists' Letter, absent objection from any party, as evidence of the nature or physical features of the New Homestead observable by a member of the public;

(b) (at J[166], [290]-[336], [390], [396]-[401], [410] and [421]-[429]) in receiving and taking into account evidence, other than documents creating the Rocklea Temporary Reserve, that:

(i) was not evidence of the observable features of Rocklea Station, being the Lands and Survey file (at J[290]) and the evidence of Messrs Stephen Troy and David Cox (Barndu) (at J[292]-[336]), where such evidence went beyond the observable features of Rocklea Station; or

(ii) was not likely part of the records of a government department or instrumentality (at J[183]).

[3] The primary judge erred in law, or in law and fact, in holding that:

(a) a justiciable controversy setting the time for the commencement of an action for declaratory relief arises when a party is able to make positive assertions (J[486]), has an interest in a claim, has knowledge of facts about that claim, and knows that the claim may be contentious (J[510]), whereas the primary judge ought to have held that a justiciable controversy arises only when the dispute between parties manifests in the assertion of inconsistent rights; and

(b) a justiciable controversy had arisen by 19 December 2013 (J[486] and [510]) whereas the primary judge ought to have held that a justiciable controversy arose on or around 21 November 2018, when BHP lodged the Objection to the Survey following grant of Aquila's Mining Lease.

[4] Alternatively to ground 3, if, as found by the primary judge, the existence of a justiciable controversy turns on a party being able to make positive assertions (J[486]), having an interest in a claim and having knowledge of a contentious claim, then the primary judge erred in law and fact in holding that time ran from at least 19 December 2013 (J[486] and [510]), whereas the primary judge ought to have held that Aquila did not have sufficient knowledge of a contentious claim in respect of Aquila's Mining Lease until:

(a) on or about 21 November 2018 when the parties joined issue upon lodgement of BHP's Objection to the Survey;

(b) alternatively, in July 2018 when Aquila first actually knew that the New Homestead had been erected prior to 4 August 1967.[69]

1. BHP had two grounds in its notice of contention. As will be seen, it is not necessary to consider BHP's Notice.

1. In determining Key Issue 1, her Honour firstly considered what type of evidence was admissible to assist in the determination of whether it was the Old or New Homestead referred to in the Reservation Document at [81].
2. Her Honour concluded that the type of evidence that was admissible was:
   1. Incorporated Documents at [154]; being material which was incorporated into the documents creating the Rocklea Temporary Reserve, expressly or by necessary implication; and
   2. Identification Evidence at [196(3)] and [81]; which was extrinsic (to the Reservation Document) to identify, objectively, a thing or place referred to in the relevant document: [81], [154] and [196(3)]. Her Honour stated that such Identification Evidence did not go to construction as it was not led to vary the instrument, but to identify a thing or place referred to in it at [154]. Aquila had accepted below that Identification Evidence was admissible to identify a thing or place referred to in a government instrument at [165].

1. Her Honour, in addition to the Reservation Document itself, found that the Application Letter and the Attachment were incorporated by necessary implication at [199] and [202]. I have used Incorporated Documents from here in these reasons to refer to these documents.

1. The primary judge accepted as Identification Evidence the evidence of:
   1. Stephen Troy[70] - in full at [292] and [325];
   2. David Cox - in full at [326] - [336]; and
   3. Michael Herbert - largely accepted with some qualifications as set out at [337] - [370].
2. In addition, the primary judge accepted a number of the facts as Identification Evidence which had been agreed between the parties in the trial at [261]. I have used Identification Evidence from here in these reasons to denote the evidence referred to in this and the previous paragraph.

1. Having identified the admissible evidence, the primary judge found that the critical factor in the context of a pastoral station was which building had the person in charge lived in at the relevant time at [421].
2. Her Honour then found that Frank Troy, the person in charge of the Station, lived in the Old Homestead at the time of the Reservation Document at [423]. There was no challenge to that factual finding.
3. So, her Honour found that the reference to Rocklea Homestead in the Attachment to the Application Letter was to the Old Homestead.
4. Her Honour said that if she was wrong that the Minister intended the residence of the person in charge to be the Homestead, then her Honour would nevertheless have reached the same conclusion. That is because, her Honour held in the alternative, that objectively a visitor to the Rocklea Station would have thought that the Rocklea Homestead was the Old Homestead because that was 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 at [425].
5. The primary judge then said at [426], by way of a further alternative, that if the search was for a physical landmark, she considered it more likely it was intended to be a long-established structure which, in 1967, was the Old Homestead.

1. Appeal Grounds 1 and 2 are directed to the primary judge's resolution of Key Issue 1.
2. In the course of argument, Aquila accepted that Ground 1(a), effectively, asserted a 'process error'.[71] That is, it contended that the primary judge did not properly distinguish between the construction of the meaning of the 'Rocklea Temporary Reserve' on the one hand, and the identification of the stated reference point on the other, in the use of extrinsic material.
3. Ground 1(b) asserted a construction error. That is, Aquila said that her Honour should have held that the proper construction of 'Rocklea Homestead' meant the New Homestead as the most prominent or newer homestead on the Station or the building which looks like the building in which the person in charge may live.[72] That was the result of it serving as a landmark capable of being observed and identified visually.
4. If Aquila succeeded on its Ground 1(b) then its Ground 2 did not need to be decided in its favour.[73]
5. It was unclear at the hearing whether Aquila accepted that if it failed in its Ground 1(b), then succeeding in its Ground 2 would lead to a different result.[74]
6. In any event, Aquila must succeed in its Ground 1 and, or, Ground 2 before its Grounds 3 or 4 would fall to be determined.
7. As I have not upheld either of Grounds 1 or 2, it is not necessary to resolve Grounds 3 and 4. Accordingly, as noted, it also has not been necessary to resolve BHP's notice of contention.

1. Aquila submitted that determining the meaning of the Reservation Document involved the construction of a public act; namely the creation of the Rocklea Temporary Reserve.[75]
2. The process error which Aquila complained of in its Ground 1(a) was that the primary judge had erred in using the Identification Evidence as if they were part of the construction task.[76]
3. Aquila submitted that the primary judge had asked which of the two homesteads was objectively intended to be the reference point as if it involved the construction or choice between the two homesteads;[77] whereas her Honour ought to have approached the question as determining a specified physical point of reference or landmark.[78]
4. Rather, it was submitted the primary judge ought to have determined the meaning of 'Rocklea Homestead' objectively; and that construction task should have been approached on the basis of the Application Letter, Attachment and the Reservation Document only.
5. Effectively, Aquila accepted her Honour's finding that the Reservation Document, the Application Letter and Attachment were expressly or necessarily incorporated in the public act or instrument. That was because the Reservation Document itself did not sufficiently delineate what had been approved and that delineation depended on the Application Letter and its Attachment.[79]
6. Aquila accepted[80] that the Identification Evidence at the trial was extrinsic evidence which could be properly used to identify, objectively, a thing or place referred to in the relevant document.[81] As noted, that had been its position at trial.
7. There was no challenge on appeal to the primary judge's findings of fact made from the Identification Evidence.
8. The submission proceeded then that the Application Letter and its Attachment evinced an intention to designate the area by the geographic position of a known object, monument or landmark.[82]
9. The words 'Rocklea Homestead', properly construed it was submitted, were objectively intended to mean a specified physical point of reference, monument or landmark.[83]
10. It was submitted that the determination of the objectively intended specified physical point of reference, monument or landmark meant that regard should be had to its visible observable features. Here, it was submitted that the New Homestead was objectively the most prominent, newer or modern home on Rocklea Station, or was the building which looked like the person in charge may live.[84]
11. The primary judge, it was submitted, in effect erred in focusing on the function of the homestead building rather than its physical features which, it was said, were more readily visible or observable.[85] It was submitted that relevant person[86] would be better able to identify a landmark objectively based on what a building looks like and its physical features, not what the building is used for, nor by who actually occupies it.[87]
12. It was submitted that the New Homestead, at the relevant time, was the building which would be identified objectively as being the most prominent, new or modern home on Rocklea Station, or the building which looked like where the person in charge may live.[88]
13. Aquila accepted that if it was unsuccessful in its submission that it was the physical features of the Homestead which were determinative (rather than its function), then its appeal would be unsuccessful.[89]
14. In relation to Ground 2 Aquila submitted that the primary judge's 'rejection' of the Pastoralists' Letter was an error of law.[90]
15. Perhaps, as an alternative submission within Ground 2, Aquila said that the primary judge had not given 'sufficient weight' to the Pastoralists' Letter.[91]
16. The primary judge, it was also submitted, should not have relied on the evidence of Stephen Troy and David Cox as their evidence was not probative of the physical features of the Homestead.[92]

1. With respect, I do not accept the submission that the primary judge made the process error complained of. The primary decision clearly distinguished between the construction task (without extrinsic evidence) and the identification task (with it); particularly at [154], [194] ‑ [196] and [230].
2. In any event, whether or not the primary judge committed such an error would not be determinative of the appeal. The appeal, rather, turns on the proper construction of the Rocklea Temporary Reserve which is a matter for this Court to determine for itself.[93]

1. Her Honour approached the resolution of Key Issue 1 on the basis that there was no authority which identified the proper approach to the construction of documents creating a temporary reserve under the Repealed Act: [144]. That remains the case and none was cited in this Court.
2. Nonetheless, by analogy with other public acts, her Honour, as seen, took the approach that regard could be had to:
   1. documents other than the public act itself if those documents were incorporated into the relevant instrument expressly or by necessary implication; and
   2. extrinsic evidence to identify a thing or place referred to in the public act or instrument.[94]
3. There was no challenge in this Court to the correctness of:
   1. that approach in the construction of the Rocklea Temporary Reserve;
   2. her Honour's finding that regard could be had to the Reservation Document, the Application Letter and its Attachment, as the Incorporated Documents; nor
   3. to her Honour having regard to extrinsic evidence to identify the 'Rocklea Homestead' as referred to in the Incorporated Documents.
4. I consider that the following principles (not in dispute between the parties) apply to the construction of a public act or instrument, such as the Rocklea Temporary Reserve:
   1. a public act or instrument is required and intended to operate in accordance with its own terms;[95]
   2. documents which are expressly or necessarily incorporated into the public act or instrument are available as part of the construction of the public act or instrument;[96]
   3. extrinsic material is available to identify the subject matter, or thing, or place referred to in the relevant instrument, but not to vary the meaning of the relevant instrument;[97] and
   4. the extrinsic material which may permissibly be taken into account is as at the time of the grant or creation of the public act or instrument.[98]
5. I also accept Aquila's submission, which was also common ground at the trial, that the Court had to identify which homestead was objectively intended by the Minister to be the reference point.[99]
6. As noted, Aquila submitted that, properly construed, 'Rocklea Homestead' was intended objectively to mean a specified physical point of reference, monument or landmark. I accept that submission.
7. The effect of Aquila's submissions then was that the Minister would have intended the landmark in the Incorporated Documents to be determined by purely physical observation. And, correspondingly, in that determination regard would not be had to the function of the building.
8. To support this last submission, Aquila relied on a number of cases which either involved development consents or common law easements or other grants made under the Torrens system.
9. The most prominent of those were Consolidated Gold Mining Areas NL v Oresearch NL (1990) 3 WAR 208 (Oresearch) and a more recent New South Wales Court of Appeal decision in Theunissen v Barter [2025] NSWCA 50 (Theunissen), which, in turn, considered a number of earlier authorities relied on by Aquila.

1. In Oresearch, the boundaries of an exploration licence granted under the Mining Act 1978 (WA) were defined by reference to a physical landmark, the 'Try Again Bore'.
2. The location of the Try Again Bore had been wrongly plotted on certain Mines Department maps and plans and its true position, as determined by subsequent survey, was in a significantly different location from that shown on the maps and plans.
3. The application for the licence had referred to the datum point as being 'from Try Again Bore' and there was, attached to the application, a map which reflected the then wrongly drawn Mines Department maps and plans.
4. It may be seen that in Oresearch, the public act (the exploration licence) was not itself being construed. Nor was there any question as to the identity of the place or thing stated to be the datum point. Rather, the datum point was clearly expressed and there was only one bore answering that description.
5. Commissioner Heenan QC, as he then was, looked to identify the location of the datum point by extrinsic evidence and stated:

It is always open to have regard to extrinsic evidence to construe a document of title, grant, or licence, not to alter or interpret the document but to identify the subject matter.[100] (citations omitted)

1. There was firstly a dispute as to whether the written description in the formal application (incorporated by necessary implication into the grant) ought to be given prominence over the map which accompanied the formal application.
2. Commissioner Heenan QC did not consider that the written description should necessarily prevail over the attached plan if there was an inconsistency.[101]
3. His Honour held that it was the obligation of the Court to determine the true intention of the grantee, here the relevant Minister.[102]
4. By reference to the High Court's decision in Phillips v The Crown [1910] HCA 60; (1910) 12 CLR 287 (Phillips), Commissioner Heenan QC said:

If one reflects on the need for certainty in determining the boundaries of mining tenements and upon the necessity for these to be capable of survey or determination by Departmental officers, other miners and prosectors interested in the area, the significance of a defined physical point of reference become obvious.[103]

1. In Phillips, like Oresearch, there was only one physical landmark answering the description (in Phillips, the Eracootharra Pool).
2. Commissioner Heenan QC cited from the judgment of Griffiths CJ,[104] to the effect that where there was an 'apparent repugnancy in different parts of a description' then most effect ought to be given to those things about which people are least likely to make a mistake.[105]
3. In Phillips the true geographic location of a physical landmark (the Eracootharra Pool) was preferred over a mistaken sketch plan which accompanied the application.
4. His Honour held that it was the true geographic position of the Try Again Bore which should be the determining feature.[106] And, so his Honour should be taken to have found that the Minister had intended by referring to the Try Again Bore, that it was its true geographic position.
5. Of course, in Phillips and Oresearch, there was only one pool and bore respectively and the question was where it was located.
6. It may be observed, with respect, the primary judge was alive to the difference factually between the questions in Oresearch and Phillips on the one hand and the question to be determined in this case on the other.[107]
7. It may be seen, with respect, that Phillips and Oresearch do not provide much assistance to the determination in this case.

1. This was a case which involved the construction of an easement. It was not a case which turned on extrinsic evidence to identify a thing or place referred to in the easement (after it had been construed).
2. Aquila sought to employ statements of principle from the judgment of Kirk JA in support of its submission that physical characteristics which are reasonably ascertainable by a third party at the time of the grant (ie by extrinsic evidence) should be used to identify the place.[108] That was in support of its argument that it was the physical characteristics of the homesteads (rather than their use or function) which should inform the identification of the landmark.
3. In its oral submissions, Aquila cited Kirk JA's statement that:

Implicit in the notion of reasonable ascertainability is that it is the broad and reasonably enduring features of the physical characteristics which are relevant, not fine details of the land or fixtures on the land, nor those which are capable of ready transformation.[109]

1. The difficulty with that submission is that Kirk JA, at that point, was considering which physical characteristics of the land over which an easement had been granted may be considered when construing the easement: see, for example, at [102] of Theunissen. That may be considered to be uncontroversial where an easement grants a right or rights over particular land.[110]
2. Further, Aquila placed reliance on Kirk JA's statement that reasonably ascertainable sources generally would include what can be observed from outside the properties with publicly available maps.[111]
3. However, the next sentence in that paragraph indicates that there may be cases in which broad and significant characteristics are not visible from outside the property because of its size. One could readily imagine putting a pastoral lease in the north of this State into that category.
4. Here, neither party contended that the physical characteristics ought to be taken into account in construing what the Rocklea Temporary Reserve meant.
5. Again, with respect, the decision in Theunissen is not of assistance in determining this issue.

1. With respect, there is an element of artificiality in Aquila's submissions that only the readily observable physical features of the homestead would be relevant and determinative. For example, as explored in argument,[112] one needs to make assumptions as to from where one is observing the homestead in 1967 - at the boundary of the homestead, possibly with binoculars, or from within the pastoral station where one could see the buildings unaided. Cases dealing with easements over land in a city or its suburbs do not greatly assist here, in my view.
2. Further, if one was close enough to see the buildings unaided, then on Aquila's argument it is only that which may be observed rather than what might become apparent on a factual enquiry.[113]
3. There seems to be no particular reason to exclude from one's consideration or enquiry the observable matters as to from where the business of the pastoral lease was being run. Nor, any particular reason to remove from one's observation or enquiry what a person engaged in the business of the station would say in response to a question as to from where was the business being run.
4. I do not consider that there is any principled reason to limit the Court's consideration, nor the admissible evidence, to the physical features of a landmark or site being used to identify that place.
5. I consider that, depending on the expression used in the public act or instrument that the nature or function of the landmark or site may be relevant and evidence going to that would be admissible. See for example Allandale Blue Metal Pty Ltd v Roads and Maritime [44] (Meagher JA)[114] and Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632, 637 (Hope JA).[115]
6. In my view, objectively speaking, the 'homestead' of a pastoral station in the north of this State would objectively have been thought at the time to be describing a building or complex of buildings with a particular function or functions.
7. Given the well‑known size of pastoral stations in the north of this State, including in 1967, I do not consider that the Minister should be taken, objectively, to have intended the Homestead to be determined by its physical features.
8. In that respect, I agree with the primary judge who did not limit her consideration to the physical features of the new and old homesteads.
9. I consider that 'Homestead' as used in the Rocklea Temporary Reserve connoted the functional utility of the building to which it is referring.
10. However, where I differ from the primary judge is that I consider that, objectively, the Minister would have intended that the Homestead in the Rocklea Temporary Reserve would be the building or complex of buildings where the business of the station was centred or conducted.
11. That is different from the primary judge's conclusion that the Minister intended it to be the building where the person in charge lived.[116]
12. I would, rather, conclude that the Homestead being referred to was that where the business of the station was conducted. That was the primary judge's alternative finding: primary decision [425].
13. That is, on the evidence and findings of the primary judge unchallenged on appeal, I would conclude that the Minister objectively was referring to the Old Homestead in the Rocklea Temporary Reserve.

1. In this ground, Aquila contends that the primary judge rejected the Pastoralists' Letter as inadmissible.[117]
2. The primary decision described the Pastoralists' Letter at [275], [282] and [283]. The letter was written by Frank Troy to the Under Secretary for Lands & Surveys and is dated 21 August 1968.
3. Relevantly it stated:

[In] [t]he latter part of 1966 we erected a New Homestead at a cost of $14,000.[118]

1. At the conclusion of the letter, Mr Troy wrote:

Have only the one plan ... N.H O.H New & old House.[119]

1. The hand drawn plan attached showed two squares marked respectively 'NH' and 'OH'.[120]
2. With respect, the premise of this submission cannot be made good: the primary judge did not reject the Pastoralists' Letter in the way Aquila contends.
3. Contrary to Aquila's submission, the primary judge took the Pastoralists' Letter into account (and as admissible) as establishing that:
   1. the New Homestead had been erected in the latter part of 1966; and
   2. it had cost $14,000, which was a considerable sum at the time: [279], [382], [391], [427].
4. The primary judge, however, held that the Pastoralists' Letter was not probative to the question of which homestead the Minister objectively intended to be the reference point for the Rocklea Temporary Reserve: [284], [395].
5. Her Honour did find that if Mr Troy (the author of the Pastoralists' Letter) had a state of mind as to the New Homestead being 'the Homestead', that could not be relevant to the Minister's intention: [284], [285]. Her Honour was dealing with the submission that Mr Troy's state of mind bore on the determination as to what the Minister objectively intended and, in that context, she referred to Mr Troy's state of mind as not being relevant or admissible: [395]. That was not to rule that the Pastoralists' Letter was inadmissible as such.
6. I do not detect, with respect, any error in the primary judge's dealing with the Pastoralists' Letter.
7. Further, and in any event, given the conclusion I have reached as to the proper construction of the Rocklea Temporary Reserve, I do not understand what substantial wrong or miscarriage of justice could be relevantly asserted by Aquila in this Ground.
8. At trial, Aquila asserted that Mr Troy, in the Pastoralists' Letter, had considered that the Old Homestead had become merely a home, while the New Homestead was 'the Homestead': see primary decision [282]. Even if that submission were to be accepted, it does not bear on the construction I have adopted which identified the Minister's objective intention as being to look to the place from where the business of the station was conducted.

1. For the above reasons, I also would not uphold Grounds 1 or 2 of Aquila's appeal. That makes it unnecessary to consider its other grounds of appeal and BHP's Notice of Contention.

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

[1] The mechanisms by which this result follows were explained in BHP Minerals Pty Ltd v Aquila Steel Pty Ltd [2023] WASCA 21 [12] - [28], [146] and illustrated by the plan annexed to those reasons.

[2] Aquila Steel Pty Ltd v BHP Minerals Pty Ltd [No 2] [2024] WASC 250 (primary decision) [14].

[7] Primary decision [97] - [102], [240] - [241].

[9] Primary decision [23], [119], [122] - [123].

[10] Primary decision [25] - [26], Green Appeal Book 402.

[14] Primary decision [319] - [325].

[17] Primary decision [15], [296] - [298], [328].

[19] Primary decision [301] - [304].

[20] Primary decision [305] - [306].

[23] Primary decision [308] - [309].

[24] Primary decision [311] - [312], see also [384].

[25] Primary decision [382], [391] - [393].

[27] Primary decision [313] - [318].

[28] Primary decision [420] - [421].

[33] Primary decision [427] - [428].

[34] See, by analogy Slough Estates Ltd v Slough Borough Council [No 2] [1971] AC 958, 962; Consolidated Gold Mining Areas NL v Oresearch NL (1990) 3 WAR 208, 217 - 218; Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528 [37] - [39]; Allandale Blue Metal Pty Ltd v Roads and Marine Services [2013] NSWCA 103 [24] - [25] (Macfarlan JA), [42] - [44] (Meagher JA), [155] - [157] (Ward JA).

[36] Theunissen v Barter [2025] NSWCA 50; (2025) 117 NSWLR 49.

[37] See eg primary decision [81], [152] - [154], [164] - [165], [170] - [172], [175], [189], [191], [194] - [196] (esp. [195]), [230], [256] - [257], [402] - [410], [419].

[38] Primary decision [279], [372], [382](83)(c), [391], [427].

[39] Primary decision [395] (explaining the conclusion at [285]).

[40] See also the Agreed Chronology item 1, White Appeal Book (WAB) 98.

[41] The New Homestead was erected at a date unknown in 1966 but after 29 March 1966: Agreed Chronology item 3, WAB 98.

[42] All paragraph references are to the primary decision unless otherwise indicated.

[43] BHP is intended to also refer to all predecessors in title to the first, second and third respondents.

[44] Agreed Chronology item 8, WAB 100; the Application Letter is at GAB 394. The joint reasons of Mitchell and Vaughan JJA set out s 276 of the Repealed Act at [10].

[46] Agreed Chronology item 13, WAB 101.

[48] Agreed Chronology item 13, WAB 101.

[49] The Reservation Document is at GAB 405.

[51] Agreed Chronology item 14, WAB 101. That letter is at GAB 388 - 389.

[52] Agreed Chronology item 18, WAB 102.

[53] The Minister's Recommendation is at GAB 384.

[55] Agreed Chronology item 19, WAB 103. The advice and subsequent confirmation is at GAB 415.

[56] Agreed Chronology item 20, WAB 103.

[57] Agreed Chronology item 23, WAB 104.

[58] Agreed Chronology item 24, WAB 104.

[60] Joint reasons of Mitchell and Vaughan JJA [22] and following.

[61] Agreed Chronology item 26, WAB 104. The letter is at GAB 424 - 426.

[63] Agreed Chronology item 30, WAB 105.

[64] Agreed Chronology item 35, WAB 106.

[65] Agreed Chronology item 36, WAB 106.

[66] Agreed Chronology item 55, WAB 112.

[67] Agreed Chronology item 57, WAB 113.

[68] The parties in their appeal papers used 'J' to refer to the primary reasons.

[70] Stephen Troy is the grandson of Frank Troy and the son of Kenneth Troy; the latter two were tenants in common in equal shares of the Rocklea pastoral lease with Frank's other son Allan.

[80] That acceptance is subject to its Ground 2.

[81] Appellants' submissions [22], [23], [26] and [32].

[86] The appellants said, relevantly, that might be a departmental officer, a surveyor, a holder of a right of occupancy in respect of the Rocklea Temporary Reserve, the holder of another right in land adjacent to the Rocklea Temporary Reserve, or a participant in the mining industry seeking to identify the land available for exploration and mining: appellants' submissions [41].

[93] See, for example, Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Pty Ltd Kristian Holgersson [2019] WASCA 114 [47] (Buss P, Beech & Pritchard JJA); Dicom AWT Operations v City of Stirling [2019] WASCA 117 [100] (Quinlan CJ, Mitchell & Beech JJA); Cougar Metals NL v Richore Pty Ltd [2024] WASCA 36 [37] (Quinlan CJ, Buss P & Seaward J).

[95] Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 [4] (Spigelman CJ), [199] (Stein JA); Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 [155], [156] (Ward JA); Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2017] NSWCA 263; (2017) 96 NSWLR 434 (Bunderra Holdings) [63], [64] (Leeming JA).

[96] Allandale Blue Metal Pty Ltd v Roads and Maritime Services [43] - [44] (Meagher JA), [179] (Ward JA); Bunderra Holdings [72] (Leeming JA), [158(4)] (Payne JA).

[97] Consolidated Gold Mining Areas NL v Oresearch NL (1990) 3 WAR 208, 217 and the authorities cited therein (Commissioner Heenan QC); Allandale Blue Metal Pty Ltd v Roads and Maritime Services [44] (Meagher JA) and the cases cited therein; Bunderra Holdings [158(4)] (Payne JA).

[98] Bunderra Holdings [66] (Leeming JA).

[100] Oresearch (217 l 41 and following).

[103] Oresearch (221 l 50 - 222 l 2).

[112] See, for example, ts 18, 22, 31.

[114] As adopted in Bunderra Holdings [158(4)] (Payne JA).

[115] It is possible to read the passage in the judgment of Hope JA as stating that evidence of the 'nature of the site' was being referred to for the construction of the instrument. However, I consider that the better reading of the passage is that his Honour was referring to the identification of the subject matter of the public act: see the references to 'marks on plans'.