WYLOO METALS PTY LTD -v- QUARRY PARK PTY LTD [2021] WASC 30 (12 February 2021)

(c) the land the subject of mining lease 08/487 is open for mining for the purpose of s 18 of the Act.

1. In substance, though not in form, the action is an application for judicial review of an exercise of statutory power, or as Wyloo would contend, a purported exercise of statutory power. The only final relief sought by Wyloo is the declaratory relief outlined above.
2. The catalyst for the proceedings is that on 22 December 2020 Quarry Park entered into a conditional 'Sale and Purchase Agreement' with Cauldron for the sale of mining lease 08/487 and other mining tenements and tenement applications, all of which are considered to be prospective for sand mining.[3] The Sale and Purchase Agreement is subject to a number of conditions precedent. These include obtaining the consent of the Minister under s 82(1)(d) to the transfer of mining lease 08/487 to Cauldron and obtaining approval from Cauldron's shareholders to an issue of shares (forming part of the consideration) to Quarry Park and related parties.
3. Cauldron is listed on the Australian Stock Exchange and it made announcements in respect of the Sale and Purchase Agreement on 22 December and 29 December 2020. Cauldron convened a general meeting of its shareholders to be held on 29 January 2021 to approve the issue of shares.
4. On 11 January 2021 Wyloo applied for a prospecting licence over the land the subject of mining lease 08/487 having marked out the land the subject of the application on 10 January 2021.
5. By a chamber summons filed on 25 January 2021 Wyloo applied for an interlocutory injunction restraining Quarry Park and Cauldron from executing or lodging a transfer in respect of mining lease 08/487.[4]
6. Prior to the hearing the Minister undertook that he would not give effect to any purported transfer of the mining lease 08/487 without providing Wyloo with five business days' notice.
7. Notwithstanding the Minister's undertaking Wyloo proceeded with its application for injunctive relief against Quarry Park and Cauldron. Wyloo contends that the execution and subsequent lodgement of a transfer of mining lease 08/487 would have the capacity to defeat its claims and its application for a prospecting licence. I outline the basis of this contention more fully later in these reasons. Wyloo contends that there is the potential that the refusal of injunctive relief might, in effect, dispose of the action finally against it.
8. After hearing argument on the afternoon of 27 January 2021 I reserved my decision but granted interim relief restraining the execution or lodgement of a transfer pending delivery of my decision. There is no evidence before the court as to whether Cauldron's shareholders approved the Sale and Purchase Agreement at their meeting on 29 January 2021 but I infer they did so.
9. For the reasons developed below I consider that an interlocutory injunction should be granted pending an expedited trial. In summary I consider that Wyloo has established a serious question to be tried albeit that the strength of its claim is diminished by the defences Quarry Park and Cauldron has foreshadowed. The factor that tips the balance of convenience in favour of granting an interlocutory injunction is that a refusal of relief has the potential to have the effect of disposing of Wyloo's claim against it on a final basis.

1. Land that is not the subject of a mining tenement, and which falls within the definition of 'Crown land' in s 8, is land open for mining.[5]
2. Part IV of the Act provides for the grant of mining tenements. These include prospecting licences (div 1) and mining leases (div 3).
3. An application for a mining lease is required to be made in the prescribed form[6] and to be accompanied by: the prescribed rent for the first year of the term;[7] the prescribed application fee;[8] a mining proposal,[9] or a statement (mining operations statement) and a mineralisation report 'prepared by a qualified person'.[10] A 'qualified person' is a member of the Australian Institute of Mining and Metallurgy or the Australian Institute of Geoscientists.[11]
4. If an application for a mining lease is accompanied by a mining operations statement and a mineralisation report, the Director, Geological Survey, is required to provide the Minister with a report as to whether there is significant mineralisation in the land to which the application relates (the s 74A report).[12] The s 74A report is required to be based solely on information contained in the mineralisation report and any further information provided by an applicant in response to a request by the Director.[13]
5. 'Subject to [the] Act' the grant of a mining lease lies with the Minister.[14] The application, however, comes first before a mining registrar (when there is no objection) or a mining warden (when there is an objection). The registrar or warden, as the case may be, makes a recommendation to the Minister, who decides the application.[15]
6. In Forrest & Forrest v Wilson[16] the majority of the High Court (Kiefel CJ, Bell, Gageler and Keane JJ) held that the requirements that an application for a mining lease be accompanied by a mining operations statement and a mineralisation report, and, that a s 74A report based on the mineralisation report be provided to the warden before the warden hears an application and objection, imposed conditions precedent to the exercise of the power of the Minister to grant a mining lease.
7. Every mining lease contains a condition that the lessee shall not transfer or mortgage a legal interest in such land or any part thereof without the prior written consent of the Minister, or of an officer of the Department acting with the authority of the Minister.[17]
8. A holder of a mining tenement may apply to transfer the whole of it or an interest in it by lodging a transfer in the form of Form 23 with the prescribed fee.[18]
9. The Director General of Mines is required to compile and maintain a register (the Register) containing prescribed particulars relating to mining tenements and applications for mining tenements.[19] The scheme established by the Act is '[not] title by registration ... [but] registration of title'.[20]
10. An instrument that constitutes a 'dealing' within the meaning of the Act is required to be registered in the Register.[21] For the purposes of the Act a 'dealing' means 'a transfer or mortgage of a legal interest in a mining tenement'. [22]
11. A dealing does not pass any legal estate or interest in a mining tenement or in any way charge or encumber a mining tenement until it is registered in accordance with s 103C.[23]
12. On payment of the prescribed fee the holder of a mining tenement is entitled to receive an instrument of licence or lease as the case may be in such form as may be prescribed.[24]
13. Section 116(2) provides that a mining tenement shall not be impeached or defeasible in certain circumstances. It states:

(2) Except in the case of fraud, a mining tenement granted or renewed under this Act shall not be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the grant or renewal of that tenement and no person dealing with a registered holder of a mining tenement shall be required or in any way concerned to inquire into or ascertain the circumstances under which the registered holder or any previous holder was registered, or to see to the application of any purchase or consideration money, or be affected by notice, actual or constructive, of any unregistered trust or interest any rule of law or equity to the contrary notwithstanding, and the knowledge that any such unregistered trust or interest is in existence shall not of itself be imputed as fraud.

1. In Forrest & Forrest v Wilson, in obiter dicta, the majority considered the protection afforded by s 116(2) to the transferee of a mining lease, who takes from a registered holder, in circumstances where the grant of the mining lease to the registered holder was invalid by reason of non‑compliance with any of the statutory pre-conditions. Their Honours stated:[25]

... And as to those who took a transfer of a mining lease from [the registered holder of an invalidly granted mining lease], such transferees would be protected by the second clause of s 116(2). In Hunter Resources Ltd v Melville, Toohey J, noting the differences between s 116(2) of the Act and the Torrens system statutes whereby the registered proprietor holds free of any unregistered interest other than those expressly excepted, went on to say:

It should not be assumed ... that registration of the original grant cures any defects in the application leading to the grant. But it is unnecessary to express a view on that matter. Clearly enough, a person dealing with the registered holder will, in the absence of fraud, obtain the protection of s 116. (footnotes omitted)

1. Section 119 provides that a mining tenement may be sold or otherwise disposed of. It states:
   1. Mining tenement may be sold, encumbered etc.

(1) Subject to this Act a mining tenement may be sold, encumbered, transmitted, seized and sold to satisfy a judgment, or otherwise disposed of.

(2) A legal or equitable interest in or affecting a mining tenement is not capable of being created, assigned, affected or dealt with, whether directly or indirectly, except by an instrument in writing signed by the person creating, assigning or otherwise dealing with the interest.

An overview of the parties' contentions Wyloo's contentions

1. Wyloo's case as to the invalidity of mining lease 08/487 starts from the proposition that the mining lease was granted notwithstanding that the pre-conditions to the valid grant were not satisfied in two respects, first, the application was not accompanied by a mining operations statement as required by s 74(1a) and, second, the application was not accompanied by a mineralisation report prepared by a qualified person as required by s 74(1)(ca). Wyloo contends that the non-satisfaction of the statutory pre-conditions is made good by documentary records maintained by the Department of Mines and Petroleum. Copies of the relevant documents were attached to the affidavit affirmed in support of the application.
2. Quarry Park's application for a mining lease was made on 16 November 2011. It was accompanied by a letter of that date from Quarry Park addressed to the Mining Registrar at Karratha signed by Mr Warren Slater, a director of Quarry Park. The letter was expressed to be a mineralisation report for the purposes of s 74(1)(ca). In the letter Mr Slater described himself as qualified to make the 'statement and resource calculation' contained in it. A further document entitled 'Mineralisation Report in support of mining lease application M08/487 Ashburton River, Onslow, Pilbara Region, WA' dated 25 July 2012 was lodged in support of the application. I infer this was lodged in or about August 2012.
3. Wyloo contends that Quarry Park's letter dated 16 November 2011 was not a mineralisation report within the meaning of the Act because Mr Slater was not a 'qualified person'. In support of this contention Wyloo relies on a finding made by Allanson J at first instance in Forrest & Forrest v Wilson,[26] to the effect that Mr Slater was not a 'qualified person' within the meaning of the Act.
4. Wyloo contends that Quarry Park's letter dated 16 November 2011 was not a mining operations statement within the meaning of s 74(1a) because it did not contain the information required by that subsection, that is, it did not include information as to when, where and how mining was likely to be carried out. In this respect, in addition to relying on the contents of the letter of 16 November 2011 itself, Wyloo relies on a finding by Smith J in Onslow Resources Ltd v Hon William Joseph Johnston MLA in his capacity as Minister for Mines and Petroleum,[27] to the effect that a letter in similar terms written by Mr Slater (in support of an application for a different mining lease made by another company) did not constitute a mining operations statement.[28]
5. Relying on the decision in Forrest & Forrest v Wilson, which was followed and applied by Smith J in Onslow Resources, Wyloo contends that the failures to comply with the statutory pre‑conditions compel the conclusion that the grant of mining lease 08/487 was invalid. Wyloo contends that its case for declaratory relief is strong.
6. Wyloo contends that as mining lease 08/487 is invalid and of no force or effect Quarry Park has nothing to transfer to Cauldron. Further, it contends that the Sale and Purchase Agreement is void and unenforceable as it purports to allow Quarry Park to gain or profit from its non‑compliance with the statutory requirements by selling mining lease 08/487.
7. Wyloo argues that, if a transfer of mining lease 08/487 is executed or lodged for approval by the Minister, Quarry Park and Cauldron may contend that the transfer would constitute Cauldron 'dealing with' Quarry Park entitling Cauldron to the protection afforded by s 116(2) of the Act thereby making title to mining lease 08/487 indefeasible in its hands.
8. Wyloo's primary position is that Cauldron is not and would not be protected by s 116(2), whether or not a transfer of mining lease 08/487 is executed. Wyloo accepts, however, that the availability of s 116(2) protection is a contestable proposition and one that would be strengthened if a transfer was executed. For that reason it wishes to reduce or eliminate the possibility that its claim that mining lease 08/487 is invalid be defeated by the execution and subsequent lodgement of a transfer. Thus it pressed the current application.
9. If the contention that the execution of a transfer, or the execution and lodgement of a transfer, was held to be sufficient to confer an indefeasible title on Cauldron, this would have the further consequential effect of defeating Wyloo's application for a prospecting licence as the land the subject of that application would not be open for mining.

1. Quarry Park and Cauldron oppose the application for an injunction on the following grounds:

(a) Wyloo has no standing to apply for declaratory relief as it does not have a real interest in a controversy for judicial determination.

(b) Wyloo's claim for declaratory relief is to be characterised as an equitable action in respect of which the limitation period is six years.[29] The limitation period commenced on the grant of mining lease 08/487 on 12 April 2013 and has thus expired. Wyloo has not foreshadowed an application for an extension of the limitation period. In any event, no such application could succeed because Wyloo would be unable to demonstrate that the failure to commence the action was attributable to 'fraudulent or other improper conduct' on the part of either Quarry Park or Cauldron.[30]

(c) The status quo is that mining lease 08/487 is presently in force and effect and capable of being the subject of a proposed transfer. Wyloo is seeking to alter the status quo.

(d) There is a 'disconnect' between the primary relief sought by Wyloo and the interlocutory relief. Wyloo has no personal rights against either Quarry Park or Cauldron or with respect to mining lease 08/487 or to its subject land. Wyloo is seeking interlocutory relief to achieve something unrelated to the status quo when regard is had to its claim for declaratory relief.

(e) Cauldron already has the benefit of protection afforded by s 116(2) by reason of the Sale and Purchase Agreement.

(f) The balance of convenience favours the refusal of an injunction because:

(i) (at the time the application was heard on 27 January 2021) the shareholder approval condition precedent had not been satisfied;

(ii) there is likely to be a delay of weeks in presenting any transfer of mining lease 08/487 for approval because of likely delays in the assessment of the transfer for duty purposes;

(iii) the Minister has given an undertaking to give five business days' notice to Wyloo before registering a transfer of mining lease 08/487; and

(iv) assuming against Cauldron both that it is not protected by operation of s 116(2) and Wyloo has an equitable interest in the land the subject of mining lease 08/487, Cauldron's equitable interest in mining lease 08/487 has priority because it was first in time.

Principles applicable to the grant of interlocutory injunctions

1. This application is unusual for several reasons. One of those reasons is that, in the context of what is essentially an application for judicial review of administrative action, Wyloo has applied for an interlocutory injunction to restrain parties against whom it has no cause of action from undertaking steps to complete what is on its face a lawful transaction. This unusual feature of the application requires more detailed reference to the principles governing applications for interlocutory injunctions than is ordinarily required.
2. The general principles applicable to the exercise of the power to grant an interlocutory injunction were not in dispute. They were summarised by Newnes JA with whom Corboy J and McLure P agreed in Mineralogy Pty Ltd v Sino Iron Pty Ltd,[31] as follows:

The principles to be applied on an application for an interlocutory injunction are well‑known and were not in dispute. The two main enquiries that arise are whether the plaintiff has made out a prima facie case and whether the balance of convenience favours the grant of the injunction. The first inquiry as to a 'prima facie case' does not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed. It is sufficient that the plaintiff show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the orders the plaintiff seeks. The second inquiry is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction was granted. Whether an applicant for an interlocutory injunction has made out a sufficient prima facie case and whether the balance of convenience favours the grant of such relief are related, not independent, questions. (citations omitted)

1. In practice the notion that a plaintiff must show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo is expressed compendiously by asking the question: is there a serious question to be tried?[32]
2. In assessing whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction was granted, in other words assessing where the risk of an injustice lies, the court will consider whether the refusal of an injunction will have the practical effect of determining the claim for substantive relief against the plaintiff.[33] If so, that is a factor that favours the grant of an injunction.
3. The court has power to grant an injunction if it is just or convenient that such an order be made.[34] The discretion to grant interlocutory injunctions is governed by the principles developed in equity's auxiliary jurisdiction.[35] In that context the first question to be answered by the plaintiff seeking an interlocutory injunction is, 'what is your equity'?[36]
4. In the field of private law, the question 'what is your equity?' requires a plaintiff to identify a cause of action (that is a legal or equitable right that the defendant is infringing or is threatening to infringe) the merits of which are to be determined at the trial of the action in which the application is brought. If a plaintiff is unable to identify a cause of action against the defendant it seeks to enjoin, the court will not grant an injunction.
5. There is one exception to the general rule that a plaintiff cannot obtain an injunction against a person unless they have a cause of action against that person. In Meagher, Gummow & Lehane's Equity: Doctrines & Remedies,[37] the exception was expressed as follows:[38]

A plaintiff can obtain an injunction against B, although the plaintiff has no cause of action against B and B has done nothing unlawful and does not threaten to do anything unlawful, if it is necessary to do so in order to obtain full relief against A, against whom the plaintiff does have a good cause of action.

1. Different considerations as to the necessity for a plaintiff to identify a cause of action apply in the area of public law. An applicant for declaratory relief as to the validity of the exercise of a statutory power is not required to have a cause of action.[39] Rather the plaintiff is required to establish a justiciable controversy (a real controversy) in which it has a real interest - a matter that I address in more detail below when considering the issue of Wyloo's standing.
2. In Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd,[40] Gaudron, Gummow & Kirby JJ stated that '[i]t would be an error to proceed on any basis which assumed, as a governing principle, that in its auxiliary jurisdiction equity intervenes solely to protect a proprietary or other legal right advanced by a plaintiff'.[41] Rather their Honours explained:[42]

The first question is why equity, even at the instance of the Attorney-General, would intervene. The answer given for a long period has been the public interest in the observance by such statutory authorities, particularly those with recourse to public revenues, of the limitations upon their activities which the legislature has imposed ... The answer, required by the persistence in modified form of the Boyce principle, is that the public interest may be vindicated at the suit of a party with a sufficient material interest in the subject matter. Reasons of history and the exigencies of present times indicate that this criterion is to be construed as an enabling, not a restrictive, procedural stipulation.

1. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,[43] Gaudron J observed that leaving to one side injunctions designed to protect the processes of the court:[44]

... an injunction is a curial remedy. Because it is a remedy, it is axiomatic that it can only issue to protect an equitable or legal right or, which is often the same thing, to prevent an equitable or legal wrong.

Gaudron J qualified this general statement in a footnote by an acknowledgment that it may be that, in the case of some public wrongs, an injunction will issue notwithstanding that no equitable or legal right is infringed.[45]

1. The practical effect of the observations in Bateman's Bay and Lenah to which I have referred appears to be that in the case of interlocutory injunctions in the area of public law the answer to the question asked of a plaintiff 'what is your equity?' is answered satisfactorily if the plaintiff can establish standing. If, however, within the context of such proceedings, a plaintiff seeks to enjoin parties, other than the statutory authority whose decision or conduct is challenged, from taking action that is otherwise lawful, the plaintiff must identify a principled basis for relief to be granted.

Serious question to be tried Preliminary observation

1. Counsel for the Minister described the issues raised in relation to the construction of the Act as 'unusually complex issues' that should not be determined on a summary basis. I was informed the same or similar issues are under consideration in other proceedings before this court.[46] As is often the case the injunction application was heard on short notice, late in the day and, through force of circumstance, the parties did not have the opportunity to provide the court with detailed submissions on all of the issues raised. The views I express in assessing the strength of Wyloo's case, and on the strength of the defences foreshadowed by Quarry Park and Cauldron, are not to be taken as an expression of a final conclusion on any particular issue - they are necessarily provisional. That said, the court is required to make an assessment of the strength of any serious question to be tried raised by Wyloo.[47]

1. In Ainsworth v Criminal Justice Commission,[48] the majority of the High Court (Mason CJ, Dawson, Toohey and Gaudron JJ) stated:[49]

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.' However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties'. (citations omitted)

1. The 'real interest' referred to in Ainsworth must be a special interest or material interest beyond that of any member of the public and not merely an intellectual or emotional interest in the relevant subject matter.[50] The rule is flexible and the nature of the subject matter will dictate what amounts to a special interest.
2. For the reasons explained below I consider that Wyloo has raised a serious question to be tried relating to the invalidity of the grant of mining lease 08/487. The existence of Wyloo's application for a prospecting licence over the land that is the subject of mining lease 08/487 is sufficient to establish a serious question to be tried as to Wyloo's standing. If mining lease 08/487 is invalid and a declaration is made to that effect then Wyloo's prospecting licence is made in respect of land open for mining.
3. Further, there is a public interest in applications under the Act being determined according to law. In particular the decision of the High Court in Forrest & Forrest v Wilson demonstrates that there is a public interest in ensuring that the mineral resources of the State are disposed of in accordance with the legislative regime and not otherwise. While I am not suggesting that Wyloo is acting out of altruism, in one sense its action may be seen as vindicating the public interest.
4. The use of the word 'disconnect' by Quarry Park and Cauldron in their submissions is a shorthand way of expressing that Wyloo does not have a cause of action against either Quarry Park or Cauldron and its application should be refused on that basis.
5. In support of their contention Quarry Park and Cauldron cite MLG Oz Pty Ltd v Ayling,[51] in which Allanson J refused to grant an interlocutory injunction to the holder (MLG) of a miscellaneous licence granted under the Act over a haulage road because the interlocutory application was unrelated to the final relief sought in the proceedings. The injunction application was brought in judicial review proceedings commenced by MLG challenging the lawfulness of a warden's decision to grant a further miscellaneous licence over the same road to the respondent (GFSG). MLG sought an injunction restraining GFSG from using the haulage road. Allanson J said:[52]

The classic statement of the purpose of an interlocutory injunction is 'to keep matters in status quo until the rights of the parties can be determined at the hearing of the suit'. The judicial review application, however, is concerned with the lawfulness of the decision that GFSG be granted a miscellaneous licence. Those proceedings will not determine whether MLG, as a licensee, has rights pursuant to which it may restrain GFSG or others from using the road. That relief would need to be established in other proceedings of a different character.

MLG's rights arise from a statutory licence, entitling it to use the land for the specified purpose of a road. ...

I do not intend to suggest that MLG may not have rights which would be protected in equity. But the question of such interference does not arise in the judicial review proceedings: the restraint sought is unrelated to the preservation of the status quo in those proceedings.

1. There are two aspects to the rights for which Wyloo seeks protection, which have the effect of putting it in a different position to that of the unsuccessful applicant in MLG Oz.
2. First, Wyloo has a statutory right to have its application for a prospecting licence considered and determined in accordance with the law. In effect, it contends that, for this purpose, the status quo is constituted by the facts as they were on the date the proceedings were commenced (that is, no transfer of mining lease 08/487 executed or lodged). The right to have the prospecting licence considered and determined in accordance with law is a right in the sense that Wyloo could seek administrative law remedies or declaratory relief to vindicate that right.
3. Secondly, Wyloo has a procedural right to prevent its claim for declaratory relief being rendered nugatory by steps taken by Quarry Park and Cauldron pending the final hearing - it is well-established that the court will not grant declaratory relief if to do so it will achieve no purpose.[53] If a transfer was executed and Cauldron's title to mining lease 08/487 was held to be indefeasible because of it, the court would not grant declaratory relief in respect of the grant of the mining lease because it would be pointless to do so. In some respects, seeking an injunction to preserve this right is akin to invoking the court's jurisdiction to make orders preserving the integrity of its own processes.[54]
4. Even though Wyloo has no cause of action against Quarry Park and Cauldron, I consider that Wyloo's application falls within the exception (identified in the passage of Meagher, Gummow & Lehane's Equity: Doctrines & Remedies to which I referred earlier) to the general rule that an applicant for an interlocutory injunction must have a cause of action against the party it seeks to enjoin. This provides a principled basis for the grant of interlocutory relief against Quarry Park and Cauldron. The injunction is necessary to preserve Wyloo's claim for declaratory relief and to preserve its right to have its prospecting licence determined in accordance with law.

1. Quarry Park and Cauldron did not adduce any evidence to challenge Wyloo's case on invalidity, that is, they did not attempt to establish that the statutory pre-conditions to the grant of mining lease 08/487 had been satisfied.
2. In Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd,[55] the High Court reaffirmed in clear terms the 'orthodox' analysis that administrative acts that do not comply with conditions of the statutory conferral of the administrative functions, are nullities.[56]
3. In my assessment, had Wyloo's challenge to the grant of mining lease 08/487 been made promptly and before Quarry Park had entered into any transaction in relation to the mining lease it would have had a strong serious question to be tried on the invalidity of the mining lease. For the reasons discussed below the elapse of time between the grant of the mining lease and the challenge, as well as the existence of the Sale and Purchase Agreement undermine the strength of the serious question.

The operation of s 116(2)

1. As recorded earlier Wyloo's primary position is that s 116(2) will not protect Cauldron either by reason of the Sale and Purchase Agreement or by reason of the Sale and Purchase Agreement coupled with an executed and lodged transfer.
2. Without the benefit of fully developed submissions from the parties my provisional views on the potential operation of s 116(2) are as follows:

(a) On the basis of the observations made by the majority in Forrest & Forrest v Wilson and the majority's approval of Toohey J's dicta in Hunter Resources Ltd v Melville,[57] in the absence of fraud, a person dealing with the registered holder of a mining tenement is protected from any claim that the tenement has been invalidly granted.

(b) The phrase 'no person dealing with a registered holder of a mining tenement' as it appears in s 116(2) should not be construed as being limited to a party to a 'dealing' as defined in s 8 of the Act (a transfer or mortgage of a legal interest in a mining tenement). In reaching this tentative view I am influenced by the inclusion of the term 'dealing with' in s 119(2) in a context that suggests that it covers a range of transactions extending beyond a transfer or mortgage of a legal interest in a mining tenement. This supports the view that the same term 'dealing with' appearing in s 116(2) should not be construed restrictively as being limited to a 'dealing' within the meaning of s 8.

(c) If s 116(2) is to be construed as protecting a person dealing with a registered holder of a mining tenement in the manner outlined in the preceding subparagraphs, there is force in the contention that Cauldron is already protected by s 116(2) by reason of the Sale and Purchase Agreement and merely executing and lodging a transfer for approval is no more than a step in giving effect to a transaction already in existence that affords an additional protection on Cauldron.

(d) Further, it is arguable that a transfer of mining lease 08/487 executed and lodged for approval is not effective for any purpose, including availing a transferee of the protection afforded by s 116(2) until the transfer is registered.

(e) As against the four factors outlined above, I cannot exclude the possibility that s 116(2) might be construed in such a way that it was not engaged by the execution of the Sale and Purchase Agreement (because there was no 'dealing') but will be engaged by the execution of a transfer or the lodging of an executed transfer. That is, the execution and lodging of the transfer may amount to Cauldron 'dealing with' Quarry Park for the purposes of s 116(2). Support for this argument may be derived from s 9 of the Interpretation Act 1984 (WA).

1. Quarry Park and Cauldron contend that declaratory relief is an equitable remedy to which s 27 of the Limitation Act 2005 (WA) applies. For the purposes of considering the limitation issue that has been raised it is unnecessary to enter into the debate about whether declaratory relief should be regarded as a statutory or equitable remedy or a remedy falling within the court's inherent jurisdiction.[58] In the circumstances of this case the limitation period is six years from the accrual of the cause of action whether the action is considered to be an equitable action to which s 27 of the Limitation Act applies or whether the general limitation provision in s 13(1) of the Limitation Act applies.
2. The question of when the limitation period started to run is difficult. Both s 13 and s 27 provide, in effect, that the limitation period commences on accrual of the 'cause of action'.
3. 'Cause of action' is not defined in the Limitation Act. Relevantly, 'action' is defined in s 3(1) of the Limitation Act as meaning, 'any civil proceeding in a court, whether the claim that is the subject of the proceeding or relief sought is under a written law, at common law, in equity or otherwise'.
4. The term 'cause of action' is understood to mean 'the fact or combination of facts which gives rise to a right to sue'.[59] Where it is alleged that an administrative act purportedly done under a statutory power is invalid because of want of compliance with essential statutory pre conditions there may be an issue (adverted to by the Hon EM Heenan writing extra-judicially)[60] as to whether the limitation period starts to run when the act is completed or, assuming a state of continuing invalidity, when the interests of a plaintiff are sufficient to establish standing.
5. Wyloo relies on the decision of Judamia v Western Australia,[61] in which the Full Court of this court held that a declaration was a 'right of action' for the purposes of a limitation period in s 6 of the Crown Suits Act 1987 (WA). Malcolm CJ and Rowland J each held that a 'cause of action' means 'the facts or combination of facts which give rise to a right to sue'.[62] Therefore the occurrence of the last fact or circumstance which gives a right to bring proceedings for a declaration is the date upon which the action accrued.[63] In Coolgardie Gold NL v Minister for Mines,[64] Ng M applied the test expounded by Malcolm CJ to the Limitation Act 1935 (WA),[65] which contained a similar definition of 'action',[66] and held that the claim for declaratory relief was barred by the relevant limitation period.[67]
6. In Yougarla v State of Western Australia,[68] Anderson J held that for the purposes of s 47A of the Limitation Act 1935 (WA) time started to run against a plaintiff, who was seeking a declaration as to the invalidity of a repealing statute, upon the purported enactment of the repealing statute and, in effect, the invalidity was not a continuing state of affairs. His Honour distinguished the operation of a limitation period under s 47A from the operation of the Crown Suits Act.
7. In Brisbane South Regional Health Authority v Taylor,[69] McHugh J observed that a limitation period 'represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.'
8. Good administration requires that decisions that often have direct and consequential effects on persons other than those immediately affected, should not be set aside, long after the decision, by a successful application for judicial review.[70] There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack.[71] That is particularly so when the decisions in question concern the allocation and exploitation of the State's mineral resources, where certainty is required to safeguard the substantial investments that must be made. This public interest is reflected in the six month limitation period (extendable on application) that applies to applications for judicial review, including applications in which the only relief claimed is a declaration.[72]
9. Having regard to the public interest considerations to which I have referred, there is much to be said for the view that the limitation period in respect of actions for declaration relief runs from the date of the impugned decision or impugned conduct.
10. It must be accepted that limitation questions of the nature raised by this application should not generally be decided in interlocutory proceedings in advance of the hearing of the action.[73] The wisdom of not determining limitation issues on a summary basis is apparent from the difficulty of the limitation issue in this case. My provisional view is that the limitation defence foreshadowed by Quarry Park and Cauldron is a relatively strong one and it diminishes Wyloo's prospects of obtaining the final declaratory relief it seeks.

1. Assuming in Wyloo's favour that its claim is not statute barred the elapse of time between the grant of mining lease 08/487 and the challenge to its validity may operate as a discretionary bar to the grant of relief.
2. Hall v City of Burnside,[74] involved a challenge by way of judicial review to a decision to grant a building consent and development approval. The proceedings were commenced 11 months after the date of the decision. The plaintiffs applied for an extension of time. In his reasons for refusing the application for an extension Doyle CJ made the following observations in the context of a six month time limitation period for judicial review:[75]

If the plaintiffs bring other proceedings, not by way of judicial review, in which they challenge the validity of the building consent and the development approval on the grounds raised in these proceedings, they would face the issue of whether those proceedings should be stayed as an abuse of process. If the court in these proceedings refused to extend the six-month period, there would surely be a strong argument that the plaintiffs should not be permitted to circumvent that decision by issuing proceedings not by way of judicial review raising the same challenge. If we were to hypothesise that the other proceedings challenging the validity of the building consent and development approval had been brought without judicial review proceedings ever being brought, the same issue would arise. Would it be appropriate to permit the plaintiffs to bring those proceedings if they could not satisfy the court that, in proceedings by way of judicial review, they would have obtained an order extending the six-month period? It is arguable that a plaintiff cannot walk around the time limit in r 98.06 by the expedient of issuing proceedings that are not judicial review proceedings: see Clayton v Ralphs (1987) 45 SASR 347 at 354-355 Jacobs J and Xenophon v South Australia (2000) 78 SASR 251; [2000] SASC 327 at [17] Prior J and at [20] Lander J. On this point, some of the reasoning of Lord Diplock in O'Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237 has continuing relevance, even though changes wrought by the English Civil Procedure Rules 1998 have led to a change of approach: see Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988.

1. In Hall Doyle CJ explained that delay had the capacity not only to affect the success of an application for an extension of time but it could also affect the exercise of the discretion to grant relief. His Honour stated: [76]

As McHugh J said in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 553, the six-month limitation period is 'the general rule'. It is not 'an arbitrary cut off point'. The six-month limit represents a judgment as to an appropriate time limit having regard to the public interest and having regard to the interest of individuals who have an interest in the particular case that arises. A limitation period is imposed, and the length of the period is determined, recognising that the limitation period may result in a cause of action being defeated.

A six-month time limit for proceedings by way of judicial review is common in Australia, and in some jurisdictions the time limit is even shorter: see Aronson, Dyer, Groves, Judicial Review of Administration Action (3rd ed, Lawbook Co, 2004), pp 718-719.

The relatively short limitation period reflects the fact that judicial review is concerned with the validity of decision-making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected. In a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision-making process is a reason why there should be a relatively short period within which any such attack should be mounted.

1. In Davies v Minister for Urban Development and Planning,[77] an application for summary dismissal was made in respect of an application for a declaration that a planning decision taken some 11 years earlier was invalid. In the course of his reasons for making an order for summary dismissal, Bleby J considered that the delay in bringing proceedings well beyond the time limit prescribed under the relevant rules of the Supreme Court of South Australia for judicial review, was a relevant factor, reflecting as it did the policy that administrative decisions should be challenged promptly (the time limit being six months). Bleby J held that the principles underpinning the requirements in relation to judicial review proceedings remained relevant when determining whether the court's discretion should be exercised so as to grant the declaratory relief sought. His Honour said:[78]

To hold otherwise would create the unsatisfactory situation where one can side-step safeguards placed with respect to the challenge of administrative decisions by way of judicial review, simply by the forensic decision to pursue declaratory relief. Notwithstanding the fact that these proceedings are not instituted by judicial review, they remain a challenge to a purported exercise of a power by a public authority.

Delay in the administrative context is not as concerned with the conduct or purposes of a party as it is with broader administrative concerns. Those concerns relate to the fact that administrative decisions have potentially broad ramifications against many parties, and that administrative decisions should not be afflicted with doubt as to their validity over a significant period of time. It is in that context that a significant passage of time passed is relevant to the exercise of the court's discretion and to the principle that administrative decisions should be challenged promptly.

1. In Re Smith; Ex parte Rundell, Malcolm CJ, with whom Pidgeon and Walsh JJ agreed, observed that the court retains a discretion to refuse relief even where that relief may be said to lie ex debito justitiae if for example there has been undue delay.[80]
2. The elapse of time between the date of the grant of mining lease 08/487 and Wyloo's challenge to its validity presents a factor militating against the exercise of the discretion to grant declaratory relief. Quarry Park has paid rent to the State for the mining lease, it is not clear whether it has paid royalties but I infer it has paid local government rates. It has expended approximately $2.5 million on the tenement, far in excess of the minimum expenditure requirements under the Act. Declaring that mining lease 08/487 is invalid may expose Quarry Park to the allegation that it has been conducting mining activities on the land the subject of mining lease 08/487 unlawfully notwithstanding Quarry Park's apparent bona fide reliance on the regularity of the mining lease.
3. Cauldron has announced the making of the Sale and Purchase Agreement to the market and, I infer, its shares were traded on the Australian Stock Exchange on the basis of the proposed acquisition between the date of the announcement of the transaction and, at least, the date the present proceedings were commenced.
4. In Forrest & Forrest v Wilson, the majority of the High Court referred to the holder of the invalid mining lease in that case as the 'author of its own misfortune'. That remark was, however, made in the context of a case where the challenge to the grant of the mining lease was made promptly and not approximately seven years and nine months after the grant. At a provisional level I am not persuaded that to say Quarry Park was the author of its own misfortune is necessarily a satisfactory answer to the elapse of time as a discretionary bar to the grant of declaratory relief.

1. Restraining Quarry Park and Cauldron from executing and lodging a transfer of mining lease 08/487 has the capacity to delay settlement of the Sale and Purchase Agreement. Where, as here, the purchaser is a listed company that has announced the transaction to the market, delay has a real potential for prejudice.
2. Further, even though the Minister's undertaking has the capacity to operate as an independent cause of delay, an injunction would prevent Quarry Park and Cauldron from approaching the Minister for approval of the transfer in accordance with reg 75.
3. In making an assessment of where the balance of convenience lies I am conscious of the fact that the application for interlocutory relief was heard on short notice and this may have deprived Quarry Park and Cauldron of the opportunity to adduce evidence going to the balance of convenience issue.
4. Weighing in the balance against the factors to which I have just referred is the concern that refusing interlocutory relief may well have the effect of final relief for the reasons discussed earlier. This is a factor that weighs significantly in favour of the grant of an injunction.
5. The status quo should be regarded as being the factual situation as it was when proceedings were commenced, that is, the Sale and Purchase Agreement had been executed but no transfer of mining lease 08/487 had been executed.
6. Notwithstanding the reservations I have expressed in relation to the strength of Wyloo's case I consider that an injunction should be granted in conjunction with ordering an expedited trial and an undertaking from Wyloo that it will proceed to trial expeditiously.

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

[1] The mining lease is for a term of 21 years. It covers an area of approximately 95 hectares on the Ashburton River.

[2] Unless otherwise stated all references to statutory provisions in these reasons are to the Act and the regulations made pursuant to it, the Mining Regulations 1981 (WA).

[3] The Sale and Purchase Agreement was not in evidence. Its material terms were summarised in various documents sent by Cauldron to Australian Stock Exchange and to its shareholders.

[4] In support of the application Wyloo relied on an affidavit affirmed by one of its solicitors, Ms Jordan Hill on 25 January 2021. In opposition to the application Quarry Park and Cauldron relied on an affidavit sworn by their solicitor, Ms Amanda Macmaster on 27 January 2021.

[5] Mining Act 1978 (WA) s 18.

[6] Mining Act 1978 (WA) s 74(1)(a).

[7] Mining Act 1978 (WA) s 74(1)(b).

[8] Mining Act 1978 (WA) s 74(1)(c).

[9] Mining Act 1978 (WA) s 74(1)(ca)(i).

[10] Mining Act 1978 (WA) s 74(1)(ca)(ii).

[11] Mining Act 1978 (WA) s 74(7), Mining Regulations 1981 (WA) reg 25C.

[12] Mining Act 1978 (WA) s 74A.

[13] Mining Act 1978 (WA) s 74A(3).

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

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

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

[17] Mining Act 1978 (WA) s 82(1)(d).

[18] Mining Regulations 1981 (WA) reg 75.

[19] Mining Act 1978 (WA) s 103F.

[20] Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134 [20] (McLure P, Owen and Buss JJA agreeing).

[21] Mining Act 1978 (WA) s 103C(2).

[22] Mining Act 1978 (WA) s 8.

[23] Mining Act 1978 (WA) s 103C(8).

[24] Mining Act 1978 (WA) s 116(1).

[25] Forrest & Forrest Pty Ltd v Wilson [77].

[26] Forrest & Forrest Pty Ltd v Wilson [2015] WASC 181, [60].

[27] Onslow Resources Ltd v Hon William Joseph Johnston MLA in his capacity as Minister for Mines and Petroleum [2020] WASC 310.

[28] Onslow Resources v Minister for Mines [77].

[29] Limitation Act 2005 (WA) s 27.

[30] Limitation Act 2005 (WA) s 38(2).

[31] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [87]; Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [131].

[32] Australian Broadcasting Corporation v O'Neil [2006] HCA 46; (2006) 227 CLR 57 [70] (Gummow & Hayne JJ); Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] - [13] (Beech J).

[33] Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533.

[34] Supreme Court Act 1935 (WA) s 25(9).

[35] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [130].

[36] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [130].

[37] Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed, 2015).

[38] Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed, 2015) 705, citing IAC (Finance) Pty Ltd v Courtenay [1963] HCA 64; (1963) 110 CLR 550; Williams v Marac Australia Ltd (1985) 5 NSWLR 529; Halaga Developments Pty Ltd v Grime (1986) 5 NSWLR 740.

[39] Colonial Sugar Refining Co Ltd v Attorney-General (Cth) [1912] HCA 94; (1912) 15 CLR 182, 192 - 193 (Griffith CJ), 202 - 205 (Barton J), applying Dyson v Attorney-General [1910] UKLawRpKQB 203; [1911] 1 KB 410.

[40] Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247.

[43] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199.

[45] ABC v Lenah Game Meats [60]; Citing Bateman's Bay, 257 - 260 [24] - [32], 267 - 268 [49] - [52] (Gaudron, Gummow and Kirby JJ).

[47] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [101] - [105].

[48] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; see also, Aussie Airlines Pty Ltd v Australian Airlines Ltd [1996] FCA 813; (1996) 68 FCR 406, 414B-E (Lockhart J, Spender & Cooper JJ agreeing)

[49] Ainsworth v Criminal Justice Commission (581 - 582).

[50] Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) [1995] HCA 11; (1995) 183 CLR 552, 558 (Brennan, Dawson, Toohey, Gaudron and McHugh JJ).

[51] MLG Oz Pty Ltd v Ayling [2020] WASC 329.

[52] MLG Oz Pty Ltd v Ayling [19] - [21].

[55] Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2.

[56] Oakey [49] (Kiefel CJ, Bell, Gageler and Keane JJ), [88] (Edelman J).

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

[58] See Heenan EM, 'History of Declaratory Relief - A Distinct Remedy Beyond Equitable Affiliations' in Dharmananda et al (eds) Perspectives on Declaratory Relief (2009) 51, 83 - 88

[59] Dye v Griffın Coal Mining Co Pty Ltd [1998] WASCA 184; (1998) 19 WAR 431, 434, citing Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234, 245 (Wilson J).

[60] Heenan EM, 'History of Declaratory Relief - A Distinct Remedy Beyond Equitable Affiliations' in Dharmananda et al (eds) Perspectives on Declaratory Relief (2009) 51, 81 - 83.

[61] Judamia v Western Australia (Unreported, WASC Full Court, Library No 960114, 1 March 1996).

[62] Judamia v Western Australia (35) (Malcom CJ) and (17-18) (Rowland J).

[64] Coolgardie Gold NL v Minister for Mines (Unreported, WASC, Library No 960306, 31 May 1996) (Ng M).

[65] Coolgardie Gold NL v Minister for Mines (11).

[66] Limitation Act 1935 (WA) s 3.

[67] Coolgardie Gold NL v Minister for Mines (12 - 13).

[68] Yougarla v State of Western Australia (1999) 21 WAR 488.

[69] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 553.

[70] Wade HWR and Forsyth CF, Administrative Law (9th ed, 2004) 658.

[71] Hall v City of Burnside [2006] SASC 283; (2006) 102 SASR 298 [49].

[72] Rules of the Supreme Court 1971 (WA) Order 56.

[73] Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514, 533.

[74] Hall v City of Burnside [2006] SASC 283; (2006) 102 SASR 298.

[76] Hall v City of Burnside [47] - [49].

[77] Davies v Minister for Urban Development and Planning [2011] SASC 87; (2011) 109 SASR 518, 527 - 528.

[80] Re Smith; Ex parte Rundell (1991) 5 WAR 295, 315.